CWALT, INC., Depositor COUNTRYWIDE HOME LOANS, INC., Seller PARK GRANADA LLC, Seller PARK MONACO INC., Seller PARK SIENNA LLC, Seller COUNTRYWIDE HOME LOANS SERVICING LP, Master Servicer and THE BANK OF NEW YORK, Trustee POOLING AND SERVICING...
Exhibit
4.1
CWALT,
INC.,
Depositor
COUNTRYWIDE
HOME LOANS, INC.,
Seller
PARK
GRANADA LLC,
Seller
PARK
MONACO INC.,
Seller
PARK
SIENNA LLC,
Seller
COUNTRYWIDE
HOME LOANS SERVICING LP,
Master
Servicer
and
THE
BANK
OF NEW YORK,
Trustee
___________________________________
Dated
as
of July 1, 2007
___________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-OH3
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
12
|
|
|
SECTION
1.01.
|
Defined
Terms.
|
12
|
|
SECTION
1.02.
|
Certain
Interpretive Principles.
|
51
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES
|
52
|
|
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
52
|
|
SECTION
2.02.
|
Acceptance
by Trustee of the Mortgage Loans.
|
58
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
62
|
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
65
|
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
66
|
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
66
|
|
SECTION
2.07.
|
REMIC
Matters.
|
66
|
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
66
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
68
|
|
|
SECTION
3.01.
|
Master
Servicer to Service Mortgage Loans.
|
68
|
|
SECTION
3.02.
|
Subservicing;
Enforcement of the Obligations of Subservicers.
|
69
|
|
SECTION
3.03.
|
Rights
of the Depositor, the NIM Insurer and the Trustee in Respect
of the Master
Servicer.
|
69
|
|
SECTION
3.04.
|
Trustee
to Act as Master Servicer.
|
70
|
|
SECTION
3.05.
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution
Account;
Pre-Funding Account; Capitalized Interest Account; Carryover
Reserve
Fund.
|
70
|
|
SECTION
3.06.
|
Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
|
75
|
|
SECTION
3.07.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
75
|
|
SECTION
3.08.
|
Permitted
Withdrawals from the Certificate Account; the Distribution
Account and the
Carryover Reserve Fund.
|
76
|
|
SECTION
3.09.
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
78
|
|
SECTION
3.10.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
79
|
|
SECTION
3.11.
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
80
|
|
SECTION
3.12.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
84
|
|
SECTION
3.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be
Held for the
Trustee.
|
85
|
i
|
SECTION
3.14.
|
Servicing
Compensation.
|
85
|
|
SECTION
3.15.
|
Access
to Certain Documentation.
|
86
|
|
SECTION
3.16.
|
Annual
Statement as to Compliance.
|
86
|
|
SECTION
3.17.
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
87
|
|
SECTION
3.18.
|
Notification
of Adjustments.
|
87
|
|
SECTION
3.19.
|
The
Swap Contracts.
|
87
|
|
SECTION
3.20.
|
Prepayment
Charges.
|
87
|
|
ARTICLE
IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
|
91
|
|
|
SECTION
4.01.
|
Advances.
|
91
|
|
SECTION
4.02.
|
Priorities
of Distribution.
|
92
|
|
SECTION
4.03.
|
Allocation
of Net Deferred Interest.
|
99
|
|
SECTION
4.04.
|
[Reserved].
|
99
|
|
SECTION
4.05.
|
[Reserved].
|
99
|
|
SECTION
4.06.
|
Monthly
Statements to Certificateholders.
|
99
|
|
SECTION
4.07.
|
Determination
of Pass-Through Rates for COFI Certificates.
|
100
|
|
SECTION
4.08.
|
Determination
of Pass-Through Rates for LIBOR Certificates.
|
101
|
|
SECTION
4.09.
|
Determination
of Pass-Through Rates for MTA Certificates.
|
102
|
|
SECTION
4.10.
|
The
Swap Trust and Swap Accounts.
|
102
|
|
ARTICLE
V THE CERTIFICATES
|
104
|
|
|
SECTION
5.01.
|
The
Certificates.
|
104
|
|
SECTION
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
105
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
110
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
110
|
|
SECTION
5.05.
|
Access
to List of Certificateholders’ Names and Addresses.
|
110
|
|
SECTION
5.06.
|
Maintenance
of Office or Agency.
|
111
|
|
ARTICLE
VI THE DEPOSITOR AND THE MASTER SERVICER
|
112
|
|
|
SECTION
6.01.
|
Respective
Liabilities of the Depositor and the Master Servicer.
|
112
|
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
112
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer,
the NIM
Insurer and Others.
|
112
|
|
SECTION
6.04.
|
Limitation
on Resignation of Master Servicer.
|
113
|
|
ARTICLE
VII DEFAULT
|
114
|
|
|
SECTION
7.01.
|
Events
of Default.
|
114
|
|
SECTION
7.02.
|
Trustee
to Act; Appointment of Successor.
|
116
|
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
117
|
|
ARTICLE
VIII CONCERNING THE TRUSTEE
|
118
|
|
|
SECTION
8.01.
|
Duties
of Trustee.
|
118
|
ii
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
119
|
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
120
|
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
120
|
|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
120
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
121
|
|
SECTION
8.07.
|
Resignation
and Removal of Trustee.
|
121
|
|
SECTION
8.08.
|
Successor
Trustee.
|
123
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
123
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
124
|
|
SECTION
8.11.
|
Tax
Matters.
|
125
|
|
SECTION
8.12.
|
Monitoring
of Significance Percentage.
|
128
|
|
ARTICLE
IX TERMINATION
|
129
|
|
|
SECTION
9.01.
|
Termination
upon Liquidation or Purchase of all Mortgage Loans.
|
129
|
|
SECTION
9.02.
|
Final
Distribution on the Certificates.
|
130
|
|
SECTION
9.03.
|
Additional
Termination Requirements.
|
131
|
|
SECTION
9.04.
|
Auction
of the Mortgage Loans and REO Properties.
|
132
|
|
ARTICLE
X MISCELLANEOUS PROVISIONS
|
136
|
|
|
SECTION
10.01.
|
Amendment.
|
136
|
|
SECTION
10.02.
|
Recordation
of Agreement; Counterparts.
|
137
|
|
SECTION
10.03.
|
Governing
Law.
|
138
|
|
SECTION
10.04.
|
Intention
of Parties.
|
138
|
|
SECTION
10.05.
|
Notices.
|
139
|
|
SECTION
10.06.
|
Severability
of Provisions.
|
141
|
|
SECTION
10.07.
|
Assignment.
|
141
|
|
SECTION
10.08.
|
Limitation
on Rights of Certificateholders.
|
141
|
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
142
|
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
142
|
|
SECTION
10.11.
|
[Reserved].
|
142
|
|
SECTION
10.12.
|
Protection
of Assets.
|
142
|
|
SECTION
10.13.
|
Rights
of NIM Insurer
|
143
|
|
ARTICLE
XI EXCHANGE ACT REPORTING
|
145
|
|
|
SECTION
11.01.
|
Filing
Obligations.
|
145
|
|
SECTION
11.02.
|
Form
10-D Filings.
|
145
|
|
SECTION
11.03.
|
Form
8-K Filings.
|
146
|
|
SECTION
11.04.
|
Form
10-K Filings.
|
146
|
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
147
|
|
SECTION
11.06.
|
Form
15 Filing.
|
147
|
|
SECTION
11.07.
|
Report
on Assessment of Compliance and Attestation.
|
148
|
|
SECTION
11.08.
|
Use
of Subservicers and Subcontractors.
|
149
|
|
SECTION
11.09.
|
Amendments.
|
150
|
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
150
|
iii
SCHEDULES
|
Schedule
I:
|
Mortgage
Loan Schedule
|
S-I-1
|
|
Schedule
II-A:
|
Representations
and Warranties of Countrywide
|
S-II-A-1
|
|
Schedule
II-B:
|
Representations
and Warranties of Park Granada
|
S-II-B-1
|
|
Schedule
II-C:
|
Representations
and Warranties of Park Monaco
|
S-II-C-1
|
|
Schedule
II-D:
|
Representations
and Warranties of Park Sienna
|
S-II-D-1
|
|
Schedule
III-A:
|
Representations
and Warranties of Countrywide as to all of the Mortgage
Loans
|
S-III-A-1
|
|
Schedule
III-B:
|
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
|
S-III-B-1
|
|
Schedule
III-C:
|
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
|
S-III-C-1
|
|
Schedule
III-D:
|
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
|
S-III-D-1
|
|
Schedule
III-E:
|
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
|
S-III-E-1
|
|
Schedule
IV:
|
Representations
and Warranties of the Master Servicer
|
S-IV-1
|
|
Schedule
V:
|
Principal
Balance Schedules [if applicable]
|
S-V-1
|
|
Schedule
VI:
|
Form
of Monthly Master Servicer Report
|
S-VI-1
|
EXHIBITS
|
Exhibit
A:
|
Form
of Senior Certificate (excluding Notional Amount
Certificates)
|
A-1
|
|
Exhibit
B:
|
Form
of Subordinated Certificate
|
B-1
|
|
Exhibit
C-1:
|
Form
of Class A-R Certificate
|
C-1-1
|
|
Exhibit
C-2:
|
Form
of Class C-P Certificate
|
C-2-1
|
|
Exhibit
D:
|
Form
of Notional Amount Certificate
|
D-1
|
|
Exhibit
E:
|
Form
of Reverse of Certificates
|
E-1
|
|
Exhibit
F-1:
|
Form
of Initial Certification of Trustee (Initial Mortgage
Loans)
|
F-1-1
|
|
Exhibit
F-2:
|
Form
of Initial Certification of Trustee (Supplemental Mortgage
Loans)
|
F-2-1
|
|
Exhibit
G-1:
|
Form
of Delay Delivery Certification of Trustee (Initial Mortgage
Loans)
|
G-1-1
|
|
Exhibit
G-2:
|
Form
of Delay Delivery Certification of Trustee (Supplemental Mortgage
Loans)
|
G-2-1
|
|
Exhibit
H-1:
|
Form
of Final Certification of Trustee (Initial Mortgage Loans)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Final Certification of Trustee (Supplemental Mortgage
Loans)
|
H-2-1
|
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
I-1
|
|
Exhibit
J-1:
|
Form
of Transferor Certificate (Residual)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Transferor Certificate (Private)
|
J-2-1
|
|
Exhibit
K:
|
Form
of Investment Letter (Non-Rule 144A)
|
K-1
|
|
Exhibit
L-1:
|
Form
of Rule 000X Xxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of ERISA Letter (Covered Certificates)
|
L-2-1
|
|
Exhibit
M:
|
Form
of Request for Release (for Trustee)
|
M-1
|
iv
|
Exhibit
N:
|
Form
of Request for Release of Documents (Mortgage Loan - Paid in
Full,
Repurchased and Replaced)
|
N-1
|
|
Exhibit
O:
|
[Reserved]
|
O-1
|
|
Exhibit
P:
|
Form
of Supplemental Transfer Agreement
|
P-1
|
|
Exhibit
Q:
|
Standard
& Poor’s LEVELS® Version 6.0 Glossary Revised,
|
|
|
Appendix
E
|
Q-1
|
|
|
Exhibit
R:
|
[Reserved]
|
R-1
|
|
Exhibit
S:
|
[Reserved]
|
S-1
|
|
Exhibit
T:
|
Form
of Officer’s Certificate with respect to Prepayments
|
T-1
|
|
Exhibit
U:
|
Monthly
Statement
|
U-1
|
|
Exhibit
V-1:
|
Form
of Performance Certification (Subservicer)
|
V-1-1
|
|
Exhibit
V-2:
|
Form
of Performance Certification (Trustee)
|
V-2-1
|
|
Exhibit
W:
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
W-1
|
|
Exhibit
X:
|
List
of Item 1119 Parties
|
X-1
|
|
Exhibit
Y:
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement Master
Servicer)
|
Y-1
|
v
THIS
POOLING AND SERVICING AGREEMENT, dated as of July 1, 2007, among CWALT, INC.,
a
Delaware corporation, as depositor (the “Depositor”), COUNTRYWIDE HOME LOANS,
INC. (“Countrywide”), a New York corporation, as a
seller (a “Seller”), PARK GRANADA LLC
(“Park Granada”), a Delaware limited liability
company, as a seller (a “Seller”), PARK MONACO INC.
(“Park Monaco”), a Delaware corporation, as a seller
(a “Seller”), PARK SIENNA LLC (“Park
Sienna”), a Delaware limited liability company, as a seller (a
“Seller”), COUNTRYWIDE HOME LOANS SERVICING
LP, a
Texas limited partnership, as master servicer (the “Master
Servicer”), and THE BANK OF NEW YORK, a banking corporation
organized under the laws of the State of New York, as trustee (the
“Trustee”).
WITNESSETH
THAT
In
consideration of the mutual agreements contained in this Agreement, the parties
to this Agreement agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. For federal income tax purposes, the
Trust Fund (excluding the Pre-Funding Account, the Capitalized Interest Account
and the Carryover Reserve Fund), will consist of three real estate mortgage
investment conduits (each a “REMIC” or, in the alternative, the “Subsidiary
REMIC” and the “Master REMIC,” respectively). Each Certificate, other
than the Class A-R Certificate, will represent ownership of one or more
regular interests in the Master REMIC for purposes of the REMIC
Provisions. The Class A-R Certificate represents ownership of the
sole Class of residual interest in each of the Swap-IO REMIC, Subsidiary
REMIC
and the Master REMIC. The Master REMIC will hold as assets the
several classes of uncertificated Subsidiary REMIC Interests (other than
the
SR-A-R Interest). The Subsidiary REMIC will hold as assets the
several classes of uncertificated Swap-IO REMIC Interests (other than the
SW-A-R
Interest). The Swap-IO REMIC will hold as assets all the property of the
Trust
Fund (excluding the Pre-Funding Account, the Capitalized Interest Account
and
the Carryover Reserve Fund). For federal income tax purposes, each
Swap-IO REMIC, Subsidiary REMIC Interest and Master REMIC Interest
(except the SW-A-R Interest, SR-A-R Interest and the A-R Interest) is hereby
designated as a regular interest in its issuing REMIC. The latest
possible maturity date of all REMIC regular interests created hereby shall
be
the Latest Possible Maturity Date.
The
Swap
Trust, the Swap Contracts and the Swap Accounts will not constitute any part
of
any REMIC.
1
SWAP-IO
REMIC:
The
Swap-IO REMIC Interests will have the principal balances and pass-through
rates
as set forth below:
|
SWAP-IO
REMIC Interests
|
Initial
Principal Balance(1)
|
Pass-Through
Rate
|
|
SWR-1A
|
$ 9,992,300.00
|
(2)
|
||
|
SWR-1B
|
$ 9,992,300.00
|
(3)
|
||
|
SWR-2A
|
$ 9,639,950.00
|
(2)
|
||
|
SWR-2B
|
$ 9,639,950.00
|
(3)
|
||
|
SWR-3A
|
$ 9,300,050.00
|
(2)
|
||
|
SWR-3B
|
$ 9,300,050.00
|
(3)
|
||
|
SWR-4A
|
$ 8,972,100.00
|
(2)
|
||
|
SWR-4B
|
$ 8,972,100.00
|
(3)
|
||
|
SWR-5A
|
$ 8,655,700.00
|
(2)
|
||
|
SWR-5B
|
$ 8,655,700.00
|
(3)
|
||
|
SWR-6A
|
$ 8,350,500.00
|
(2)
|
||
|
SWR-6B
|
$ 8,350,500.00
|
(3)
|
||
|
SWR-7A
|
$ 8,056,050.00
|
(2)
|
||
|
SWR-7B
|
$ 8,056,050.00
|
(3)
|
||
|
SWR-8A
|
$ 7,772,000.00
|
(2)
|
||
|
SWR-8B
|
$ 7,772,000.00
|
(3)
|
||
|
SWR-9A
|
$ 7,497,900.00
|
(2)
|
||
|
SWR-9B
|
$ 7,497,900.00
|
(3)
|
||
|
SWR-10A
|
$ 7,233,550.00
|
(2)
|
||
|
SWR-10B
|
$ 7,233,550.00
|
(3)
|
||
|
SWR-11A
|
$ 6,978,450.00
|
(2)
|
||
|
SWR-11B
|
$ 6,978,450.00
|
(3)
|
||
|
SWR-12A
|
$ 6,732,400.00
|
(2)
|
||
|
SWR-12B
|
$ 6,732,400.00
|
(3)
|
||
|
SWR-13A
|
$ 6,495,000.00
|
(2)
|
||
|
SWR-13B
|
$ 6,495,000.00
|
(3)
|
||
|
SWR-14A
|
$ 6,265,950.00
|
(2)
|
||
|
SWR-14B
|
$ 6,265,950.00
|
(3)
|
||
|
SWR-15A
|
$ 6,045,000.00
|
(2)
|
||
|
SWR-15B
|
$ 6,045,000.00
|
(3)
|
||
|
SWR-16A
|
$ 5,831,850.00
|
(2)
|
||
|
SWR-16B
|
$ 5,831,850.00
|
(3)
|
||
|
SWR-17A
|
$ 5,626,200.00
|
(2)
|
||
|
SWR-17B
|
$ 5,626,200.00
|
(3)
|
||
|
SWR-18A
|
$ 5,427,850.00
|
(2)
|
||
|
SWR-18B
|
$ 5,427,850.00
|
(3)
|
||
|
SWR-19A
|
$ 5,236,450.00
|
(2)
|
||
|
SWR-19B
|
$ 5,236,450.00
|
(3)
|
||
|
SWR-20A
|
$ 5,051,800.00
|
(2)
|
||
|
SWR-20B
|
$ 5,051,800.00
|
(3)
|
||
|
SWR-21A
|
$ 4,873,650.00
|
(2)
|
2
|
SWAP-IO
REMIC Interests
|
Initial
Principal Balance(1)
|
Pass-Through
Rate
|
|
SWR-21B
|
$ 4,873,650.00
|
(3)
|
||
|
SWR-22A
|
$ 4,701,800.00
|
(2)
|
||
|
SWR-22B
|
$ 4,701,800.00
|
(3)
|
||
|
SWR-23A
|
$ 4,536,000.00
|
(2)
|
||
|
SWR-23B
|
$ 4,536,000.00
|
(3)
|
||
|
SWR-24A
|
$ 4,376,050.00
|
(2)
|
||
|
SWR-24B
|
$ 4,376,050.00
|
(3)
|
||
|
SWR-25A
|
$ 4,221,750.00
|
(2)
|
||
|
SWR-25B
|
$ 4,221,750.00
|
(3)
|
||
|
SWR-26A
|
$ 4,072,900.00
|
(2)
|
||
|
SWR-26B
|
$ 4,072,900.00
|
(3)
|
||
|
SWR-27A
|
$ 3,929,250.00
|
(2)
|
||
|
SWR-27B
|
$ 3,929,250.00
|
(3)
|
||
|
SWR-28A
|
$ 3,790,700.00
|
(2)
|
||
|
SWR-28B
|
$ 3,790,700.00
|
(3)
|
||
|
SWR-29A
|
$ 3,657,050.00
|
(2)
|
||
|
SWR-29B
|
$ 3,657,050.00
|
(3)
|
||
|
SWR-30A
|
$ 3,528,100.00
|
(2)
|
||
|
SWR-30B
|
$ 3,528,100.00
|
(3)
|
||
|
SWR-31A
|
$ 3,403,700.00
|
(2)
|
||
|
SWR-31B
|
$ 3,403,700.00
|
(3)
|
||
|
SWR-32A
|
$ 3,283,650.00
|
(2)
|
||
|
SWR-32B
|
$ 3,283,650.00
|
(3)
|
||
|
SWR-33A
|
$ 3,167,850.00
|
(2)
|
||
|
SWR-33B
|
$ 3,167,850.00
|
(3)
|
||
|
SWR-34A
|
$ 3,056,150.00
|
(2)
|
||
|
SWR-34B
|
$ 3,056,150.00
|
(3)
|
||
|
SWR-35A
|
$ 2,948,400.00
|
(2)
|
||
|
SWR-35B
|
$ 2,948,400.00
|
(3)
|
||
|
SWR-36A
|
$ 2,844,450.00
|
(2)
|
||
|
SWR-36B
|
$ 2,844,450.00
|
(3)
|
||
|
SWR-37A
|
$ 2,744,150.00
|
(2)
|
||
|
SWR-37B
|
$ 2,744,150.00
|
(3)
|
||
|
SWR-38A
|
$ 2,647,350.00
|
(2)
|
||
|
SWR-38B
|
$ 2,647,350.00
|
(3)
|
||
|
SWR-39A
|
$ 2,554,000.00
|
(2)
|
||
|
SWR-39B
|
$ 2,554,000.00
|
(3)
|
||
|
SWR-40A
|
$ 2,463,950.00
|
(2)
|
||
|
SWR-40B
|
$ 2,463,950.00
|
(3)
|
||
|
SWR-41A
|
$ 2,377,100.00
|
(2)
|
||
|
SWR-41B
|
$ 2,377,100.00
|
(3)
|
||
|
SWR-42A
|
$ 2,293,250.00
|
(2)
|
||
|
SWR-42B
|
$ 2,293,250.00
|
(3)
|
||
|
SWR-43A
|
$ 2,212,400.00
|
(2)
|
||
|
SWR-43B
|
$ 2,212,400.00
|
(3)
|
3
|
SWAP-IO
REMIC Interests
|
Initial
Principal Balance(1)
|
Pass-Through
Rate
|
|
SWR-44A
|
$ 2,134,400.00
|
(2)
|
||
|
SWR-44B
|
$ 2,134,400.00
|
(3)
|
||
|
SWR-45A
|
$ 2,059,100.00
|
(2)
|
||
|
SWR-45B
|
$ 2,059,100.00
|
(3)
|
||
|
SWR-46A
|
$ 1,986,500.00
|
(2)
|
||
|
SWR-46B
|
$ 1,986,500.00
|
(3)
|
||
|
SWR-47A
|
$ 1,916,450.00
|
(2)
|
||
|
SWR-47B
|
$ 1,916,450.00
|
(3)
|
||
|
SWR-48A
|
$ 1,848,900.00
|
(2)
|
||
|
SWR-48B
|
$ 1,848,900.00
|
(3)
|
||
|
SWR-49A
|
$ 1,783,700.00
|
(2)
|
||
|
SWR-49B
|
$ 1,783,700.00
|
(3)
|
||
|
SWR-50A
|
$ 1,720,800.00
|
(2)
|
||
|
SWR-50B
|
$ 1,720,800.00
|
(3)
|
||
|
SWR-51A
|
$ 1,660,100.00
|
(2)
|
||
|
SWR-51B
|
$ 1,660,100.00
|
(3)
|
||
|
SWR-52A
|
$ 1,601,550.00
|
(2)
|
||
|
SWR-52B
|
$ 1,601,550.00
|
(3)
|
||
|
SWR-53A
|
$ 1,545,100.00
|
(2)
|
||
|
SWR-53B
|
$ 1,545,100.00
|
(3)
|
||
|
SWR-54A
|
$ 1,490,600.00
|
(2)
|
||
|
SWR-54B
|
$ 1,490,600.00
|
(3)
|
||
|
SWR-55A
|
$ 1,438,050.00
|
(2)
|
||
|
SWR-55B
|
$ 1,438,050.00
|
(3)
|
||
|
SWR-56A
|
$ 1,387,350.00
|
(2)
|
||
|
SWR-56B
|
$ 1,387,350.00
|
(3)
|
||
|
SWR-57A
|
$ 1,338,450.00
|
(2)
|
||
|
SWR-57B
|
$ 1,338,450.00
|
(3)
|
||
|
SWR-58A
|
$ 1,291,250.00
|
(2)
|
||
|
SWR-58B
|
$ 1,291,250.00
|
(3)
|
||
|
SWR-59A
|
$ 1,245,700.00
|
(2)
|
||
|
SWR-59B
|
$ 1,245,700.00
|
(3)
|
||
|
SWR-60A
|
$ 34,081,350.00
|
(2)
|
||
|
SWR-60B
|
$ 34,081,350.00
|
(3)
|
||
|
SWR-Support
|
(4)
|
(5)
|
||
|
SWR-P
|
(6)
|
(6)
|
||
|
SW-A-R
|
(7)
|
(7)
|
_______________
|
(1)
|
Scheduled
principal, prepayments and Realized Losses will be allocated first,
to the
SWR-Support Interest and second, to the numbered classes sequentially
(from lowest to highest). Amounts so allocated to a numbered
class shall be further allocated among the “A” and “B” components of such
numbered class pro-rata until the entire class is reduced to
zero.
|
4
|
(2)
|
Prior
to the 61st Distribution Date, a rate equal to twice the Pool Tax
Cap less
10.90% per annum but not less than 0%. On and after the 61st
Distribution Date a rate equal to the Pool Tax Cap. The “Pool
Tax Cap” means the weighted average of the Adjusted Net Mortgage Rates of
all the Mortgage Loans.
|
|
(3)
|
Prior
to the 61st Distribution Date, a rate equal to the lesser of (i)
10.90%
per annum and (ii) twice the Pool Tax Cap. On and after the
61st Distribution Date, a rate equal to the Pool Tax
Cap.
|
|
(4)
|
On
the Closing Date and on each Distribution Date, following the allocation
of Principal Amounts and Realized Losses, the principal balance
in respect
of the SWR-Support Interest will equal the excess of the principal
balance
of the Mortgage Loans (as of the end of the Due Period, reduced
by
principal prepayments received after the Due Period that are to
be
distributed on the Distribution Date related to the Due Period)
over the
principal balance in respect of the remaining Swap-IO REMIC Interests
other than the SWR-P and the SWR-A-R
Interests.
|
|
(5)
|
A
rate equal to the Pool Tax Cap.
|
|
(6)
|
On
each Distribution Date the Class SWR-P Interest is entitled to
all
Prepayment Charges collected with respect to the Mortgage
Loans. It has no principal balance and pays no principal or
interest.
|
|
(7)
|
The
Class SW-A-R Interest is the sole class of residual interest in
the
Swap-IO REMIC. It has no principal balance and pays no
principal or interest.
|
On
each
Distribution Date, the Available Funds shall be payable with respect to the
Swap-IO REMIC Interests in the following manner:
(1) Interest. Interest
is to be distributed with respect to each Swap-IO REMIC Interest at the rate,
or
according to the formulas, described above.
(2) Principal. Principal
Distribution Amounts shall be allocated among the Swap-IO REMIC Interests
as
described above.
(3) Prepayment
Penalties. All Prepayment Charges are allocated to the SWR-P
Interest.
5
Subsidiary
REMIC:
The
following table specifies the Class designation, interest rate, and principal
amount for each Class of Subsidiary REMIC Interests:
|
Subsidiary
REMIC
Interests
|
Initial
Principal Balance
|
Pass-Through
Rate
|
Corresponding
Class of Certificates
|
|
SR-A-1-A
|
(1)
|
(2)
|
Class
A-1-A
|
|
SR-A-1-B
|
(1)
|
(2)
|
Class
A-1-B
|
|
SR-A-2
|
(1)
|
(2)
|
Class
X-0
|
|
XX-X-0
|
(1)
|
(2)
|
Class
A-3
|
|
SR-$100
|
$100
|
(3)
|
Class
A-R
|
|
SR-M-1
|
(1)
|
(2)
|
Class
M-1
|
|
SR-M-2
|
(1)
|
(2)
|
Class
M-2
|
|
SR-M-3
|
(1)
|
(2)
|
Class
M-3
|
|
SR-M-4
|
(1)
|
(2)
|
Class
M-4
|
|
SR-M-5
|
(1)
|
(2)
|
Class
M-5
|
|
SR-M-6
|
(1)
|
(2)
|
Class
M-6
|
|
SR-M-7
|
(1)
|
(2)
|
Class
M-7
|
|
SR-C-Swap-IO
|
(4)
|
(4)
|
N/A
|
|
SR-Accrual
|
(1)
|
(2)(5)
|
N/A
|
|
SR-A-R
|
(6)
|
(6)
|
N/A
|
_______________
|
(1)
|
On
each Distribution Date, following the allocation of scheduled principal,
Principal Prepayments and Realized Losses, the Class SR-A-1-A
Interest, Class SR-A-1-B Interest, Class SR-A-2 Interest,
Class SR-A-3 Interest, Class SR-$100 Interest, Class SR-M-1
Interest, Class SR-M-2 Interest, Class SR-M-3 Interest,
Class SR-M-4 Interest, Class SR-M-5 Interest, Class SR-M-6
Interest and Class SR-M-7 Interest will each have a principal balance
that is equal to 50% of its corresponding Class of Certificates
issued by
the Master REMIC, and the Class SR-Accrual Interest will have a
principal balance that is equal to the sum of (1) 50% of the aggregate
stated principal balances of the Mortgage Loans and (2) 50% of
the amount
of Overcollateralized Amount for such Distribution
Date.
|
|
(2)
|
On
each Distribution Date, the pass through rate will equal the “Strip REMIC
Cap.” The Strip REMIC Cap will equal the weighted average of
the pass through rates of the Swap-IO REMIC Interests (other than
the
Class SWR-P and Class SWR-A-R Interests) treating each “B” Interest the
cardinal number of which (for example, XXX-0X, XXX-0X, XXX-0X,
etc.) is
not less than the ordinal number of the Distribution Date (first
Distribution Date, second Distribution Date, third Distribution
Date,
etc., ) as capped at a rate equal to the product of (i) 2 and (ii)
LIBOR.
|
|
(3)
|
The
Pass-Through Rate for the SR-$100 Interest and any Interest Accrual
Period
will be a per annum rate equal to the Weighted Average Adjusted
Net
Mortgage Rate of the Mortgage
Loans.
|
|
(4)
|
For
each Distribution Date, the SR-C-Swap-IO Interest is entitled to
receive
from each Swap-IO REMIC “B” Interest the cardinal number of which (for
example, XX-0X, XX-
|
0
|
|
0X,
XX-0X, etc.) is not less than the ordinal number of the Distribution
Date
(seventh Distribution Date, eighth Distribution Date, ninth Distribution
Date, etc.) the interest accruing on such interest in excess of
a per
annum rate equal to the product of (i) 2 and (ii)
LIBOR.
|
|
(5)
|
The
Class SR-Accrual Interest will also be entitled to all amounts
payable
with
respect to the SWR-P
Interest.
|
|
(6)
|
The
Class SR-A-R Interest is the sole class of residual interest in
the
Subsidiary REMIC. It has no principal balance and pays no
principal or interest.
|
On
each
Distribution Date, the Interest Funds, the Principal Distribution Amount
and the
Prepayment Charge Amount (other than any Premium) will be payable with respect
to the Subsidiary REMIC Interests in the following manner:
(1) Interest. Interest
is to be distributed with respect to each Subsidiary REMIC Interest at the
rate
or according to the formulas described above.
(2) Prepayment
Charge Amounts. All Prepayment Charge Amounts (other than any
Premium) will be allocated to the Class SR-Accrual Interest.
(3) Principal. Principal
(including Subsequent Recoveries) shall be allocated among the Subsidiary
REMIC
Interests in the same manner that such items are allocated in Note (1) to
the
Subsidiary REMIC above.
Master
REMIC:
The
Master REMIC Certificates will have the original Certificate Principal Balances
and Pass-Through Rates as set forth in the following table:
|
Class
|
Original
Class
Certificate
Balance
|
Pass-Through
Rate
|
|
Class
A-1-A
|
$158,685,000
|
(1)
|
|
Class
A-1-B
|
$170,000,000
|
(1)
|
|
Class
A-2
|
$136,952,000
|
(1)
|
|
Class
A-3
|
$82,172,000
|
(1)
|
|
Class
M-1
|
$9,987,000
|
(1)
|
|
Class
M-2
|
$6,462,000
|
(1)
|
|
Class
M-3
|
$2,938,000
|
(1)
|
|
Class
M-4
|
$2,937,000
|
(1)
|
|
Class
M-5
|
$2,937,000
|
(1)
|
|
Class
M-6
|
$3,525,000
|
(1)
|
|
Class
M-7
|
$3,231,000
|
(1)
|
|
Class C-P
|
(2)
|
(3)(4)
|
|
Class A-R
|
$100
|
(5)
|
_______________
7
|
(1)
|
Each
Class of Certificates will accrue interest at the related Pass-Through
Rate. Solely for federal income tax purposes: (i) the
Pass-Through Rate of the Class A-1-B Certificates for each
Distribution Date will be the Pass-Through Rate at which such
Certificates
would have accrued interest in the event that the Class A-1-B
Swap
Contract had been terminated as of such Distribution Date, and
(ii) Net
Deferred Interest in respect of the Class A-1-B Certificates
for each
Distribution Date will be treated in the manner Net Deferred
Interest
would have been treated in respect of such Certificates if the
Class A-1-B
Swap Contract had been terminated as of such Distribution
Date.
|
|
(2)
|
The
Class C-P Certificates will be comprised of two components (the
“PO
component” and the “IO component”), each of which is hereby designated as
a REMIC regular interest for federal income tax purposes. On
each Distribution Date, following the allocation of scheduled principal,
Principal Prepayments and Realized Losses, the PO component will
have a
principal balance equal to the Overcollateralized Amount for federal
income tax purposes. Distributions on the IO component are
described in Note (3) below.
|
|
(3)
|
For
each Interest Accrual Period the Class C-P Certificates are entitled
to the “Class C-P Distributable Amount,” which shall equal the sum of (i)
a specified portion of the interest on each of the Subsidiary REMIC
Regular Interests (excluding the SR-$100, SR-C-Swap-IO and SR-A-R
Interests) in an amount equal to the excess of the Strip REMIC
Cap over the product of two and the weighted average of the pass-through
rates of the Subsidiary REMIC interests (other than the SR-$100,
SR-C-Swap-IO and SR-A-R Interests), subjecting each such Class
(other than
the Class SR-Accrual Interest) to a cap equal to the Pass-Through
Rate in
respect of its corresponding Class of Certificates and the Class
SR-Accrual Interest to a cap equal to zero and (ii) the interest
payable
on the SR-C-Swap-IO Interest. The Class C-P Distributable
Amount for any Distribution Date is payable from current interest
on the
Mortgage Loans and any related Overcollateralization Reduction
Amount for
that Distribution Date.
|
|
(4)
|
For
each Distribution Date the Class C-P Certificates are entitled to all
Prepayment Charge Amounts (other than any Premium) distributed
with
respect to the Class SR-C-P
Interests.
|
|
(5)
|
The
Class A-R Certificates represent the sole Class of residual interest
in each REMIC created hereunder. The Pass-Through Rate for the
Class A-R Certificates and any Interest Accrual Period will be a per
annum rate equal to the Weighted Average Adjusted Net Mortgage
Rate of the
Mortgage Loans.
|
It
is not
intended that the Class A-R Certificates be entitled to any cash flows pursuant
to this agreement except as provided in Sections 4.02(a) and 4.02(b) hereunder
(that is, its entitlement to $100.00 and interest thereon).
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on a REMIC regular
interest, without creating any shortfall—actual or potential (other than for
credit losses)—to any REMIC regular interest.
8
Set
forth
below are designations of Classes or Components of Certificates and other
defined terms to the categories used in this Agreement:
|
Accretion
Directed
|
|
|
Certificates
|
None.
|
|
Accretion
Directed
|
|
|
Components.
|
None.
|
|
Accrual
Certificates
|
None.
|
|
Accrual
Components
|
None.
|
|
Book-Entry
Certificates.
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
Certificate
Swap Certificates
|
The
LIBOR Certificates.
|
|
COFI
Certificates.
|
None.
|
|
Component
Certificates
|
None.
|
|
Components
|
For
purposes of calculating
distributions of principal and/or interest, the Component Certificates,
if
any, will be comprised of multiple payment components having
the
designations, Initial Component Balances or Notional Amounts,
as
applicable, and Pass-Through Rates set forth
below:
|
|
Designation
|
Initial
Component
Principal
Balance
|
Pass-Through
Rate
|
|||
|
N/A
|
N/A
|
N/A
|
|
Delay
Certificates
|
All
interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
|
|
ERISA-Restricted
|
|
|
Certificates
|
The
Class A-2 and Class A-3 Certificates, the Subordinated Certificates,
the
Residual Certificates and the Class C-P Certificates; and the
Class A-1-A
and Class A-1-B Certificates if they no longer have a rating
of at least
AA- or its equivalent from at least one Rating Agency.
|
|
Inverse
Floating Rate
|
|
|
Certificates
|
None.
|
|
LIBOR
Certificates
|
The
Class A-1-A, Class A-1-B, Class A-2 and Class A-3 Certificates
and the
Subordinated
Certificates.
|
9
|
MTA
Certificates
|
None.
|
|
Non-Delay
Certificates
|
The
LIBOR Certificates.
|
|
Notional
Amount
|
|
|
Certificates
|
None.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Physical
Certificates
|
The
Private Certificates and the Residual Certificates.
|
|
Planned
Principal Classes
|
None.
|
|
Planned
Principal
|
|
|
Components
|
None.
|
|
Principal
Only Certificates
|
None.
|
|
Private
Certificates
|
The
Class C-P Certificates.
|
|
Rating
Agencies
|
S&P
and Xxxxx’x.
|
|
Regular
Certificates
|
All
Classes of Certificates, other than the Residual
Certificates.
|
|
Residual
Certificates
|
The
Class A-R Certificates.
|
|
Scheduled
Principal
|
|
|
Classes
|
None.
|
|
Senior
Certificates
|
The
Class A-1-A, Class A-1-B, Class A-2, Class A-3 and Class A-R
Certificates.
|
|
Subordinated
Certificates
|
The
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6
and Class
M-7 Certificates.
|
|
Targeted
Principal
|
|
|
Classes
|
None.
|
|
Underwriter
|
Countrywide
Securities Corporation.
|
With
respect to any of the foregoing designations as to which the corresponding
reference is “None,” all defined terms and provisions in this Agreement relating
solely to such designations shall be of no force or effect, and any calculations
in this Agreement incorporating references to such designations shall be
interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical rating agencies not designated above as Rating Agencies shall be
of
no force or effect.
10
No
monies
will be remitted by Countrywide to the Trustee for deposit in the Pre-Funding
Account. Consequently, all references herein to “Aggregate Supplemental Purchase
Amount”, “Aggregate Supplemental Transfer Amount”, “Capitalized Interest
Account”, “Capitalized Interest Deposit”, “Capitalized Interest Release Amount”,
“Capitalized Interest Requirement”, “Funding Period”, “Funding Period
Distribution Date”, “Pool Characteristics”, “Pre-Funded Amount”, “Pre-Funding
Account”, “Remaining Pre-Funded Amount”, “Supplemental Cut-off Date”,
“Supplemental Mortgage Loan”, “Supplemental Transfer Agreement” and
“Supplemental Transfer Date” shall be of no force or effect and all provisions
herein related thereto shall similarly be of no force or effect.
11
12
ARTICLE
I
DEFINITIONS
|
|
SECTION
1.01.
|
Defined
Terms.
|
Whenever
used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
Acceptable
Bid Amount: Either (i) a bid equal to or greater than the Minimum
Auction Amount or (ii) the highest bid submitted by a Qualified Bidder in
an
auction if the Directing Certificateholder agrees to pay the related Auction
Supplement Amount.
Account: Any
Escrow Account, the Certificate Account, the Distribution Account, the
Pre-Funding Account, the Capitalized Interest Account, the Carryover Reserve
Fund, the Swap Accounts or any other account related to the Trust Fund or
the
Mortgage Loans.
Accretion
Directed Certificates: As specified in the Preliminary
Statement.
Additional
Designated Information: As defined in Section 11.02.
Adjusted
Cap Rate: For any Distribution Date and any Class of LIBOR
Certificates, the excess, if any, of the related Net Rate Cap for such
Distribution Date, over a fraction expressed as a percentage, the numerator
of
which is the product of (i) a fraction, the numerator of which is 360 and
the
denominator of which is the actual number of days in the related Interest
Accrual Period and (ii) the amount of Net Deferred Interest for that
Distribution Date, and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date occurring in the
month preceding the month of that Distribution Date (after giving effect
to
Principal Prepayments in the Prepayment Period related that prior Due
Date).
Adjusted
Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the Master Servicing Fee
Rate.
Adjusted
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the related Expense Fee
Rate.
Adjusted
Replacement Upfront Amount: As defined in Section
3.19.
Adjustment
Date: A date specified in each Mortgage Note as a date on which
the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: The
payment required to be made by the Master Servicer with respect to any
Distribution Date pursuant to Section 4.01, the amount of any such payment
being
equal to the aggregate of payments of principal and interest (net of the
Master
Servicing Fee) on the Mortgage Loans that were due on the related Due Date
and
not received by the Master Servicer as of the close of business on the related
Determination Date, together with an amount equivalent to interest on each
Mortgage Loan as to which the related Mortgaged Property is an REO Property,
net
of any net income from such REO Property, less the aggregate amount of any
such
13
delinquent
payments that the Master Servicer has determined would constitute a
Nonrecoverable Advance if advanced.
Aggregate
Supplemental Purchase Amount: With respect to any Supplemental
Transfer Date, the “Aggregate Supplemental Purchase Amount” identified in the
related Supplemental Transfer Agreement, which shall be an estimate of the
aggregate Stated Principal Balances of the Supplemental Mortgage Loans
identified in such Supplemental Transfer Agreement.
Aggregate
Supplemental Transfer Amount: With respect to any Supplemental
Transfer Date, the aggregate Stated Principal Balance as of the related
Supplemental Cut-off Date of the Supplemental Mortgage Loans conveyed on such
Supplemental Transfer Date, as listed on the revised Mortgage Loan Schedule
delivered pursuant to Section 2.01(f); provided, however, that such amount
shall
not exceed the amount on deposit in the Pre-Funding Account.
Agreement: This
Pooling and Servicing Agreement and all amendments or supplements to this
Pooling and Servicing Agreement.
Amount
Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on
the
related Determination Date on account of (i) Principal Prepayments received
after the related Prepayment Period and Liquidation Proceeds and Subsequent
Recoveries received in the month of such Distribution Date and (ii) all
Scheduled Payments due after the related Due Date.
Applied
Realized Loss Amount: With respect to any Distribution Date, the
sum of the Realized Losses which are to be applied in reduction of the Class
Certificate Balances of the Certificates and the Class A-1-B Swap Principal
Amount, if any, pursuant to Section 4.02(h), which shall equal the amount,
if
any, by which the sum of (i) the aggregate Class Certificate Balance of all
Senior and Subordinated Certificates and (ii) the Class A-1-B Swap Principal
Amount, if any, (in each case, after all distributions of principal on such
Distribution Date) exceeds the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month in which such Distribution Date
occurs (after giving effect to Principal Prepayments and Liquidation Proceeds
allocated to principal and Subsequent Recoveries received in the related
Prepayment Period).
Appraised
Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at
the
time of the origination of such Mortgage Loan; (ii) with respect to a
Refinancing Mortgage Loan other than a Streamlined Documentation Mortgage Loan,
the value of the Mortgaged Property based upon the appraisal made-at the time
of
the origination of such Refinancing Mortgage Loan; and (iii) with respect to
a
Streamlined Documentation Mortgage Loan, (a) if the loan-to-value ratio with
respect to the Original Mortgage Loan at the time of the origination thereof
was
80% or less and the loan amount of the new mortgage loan is $650,000 or less,
the value of the Mortgaged Property based upon the appraisal made at the time
of
the origination of the Original Mortgage Loan and (b) if the loan-to-value
ratio
with respect to the Original Mortgage Loan at the time of the origination
thereof was greater than 80% or the loan amount of the new mortgage loan being
originated is greater than $650,000, the value of the
14
Mortgaged
Property based upon the appraisal (which may be a drive-by appraisal) made
at
the time of the origination of such Streamlined Documentation Mortgage
Loan.
Auction
Supplement Amount: As defined in Section 9.04(c).
Bankruptcy
Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bid
Determination Date: As defined in Section 9.04(b).
Book-Entry
Certificates: As specified in the Preliminary
Statement.
Business
Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the City of New York, New York,
or the States of California or Texas or the city in which the Corporate Trust
Office of the Trustee is located are authorized or obligated by law or executive
order to be closed.
Capitalized
Interest Account: The separate Eligible Account designated as such and
created and maintained by the Trustee pursuant to Section 3.05(h)
hereof. The Capitalized Interest Account shall be treated as an
“outside reserve fund” under applicable Treasury regulations and shall not be
part of the REMIC. Except as provided in Section 3.05(h) hereof, any
investment earnings on the amounts on deposit in the Capitalized Interest
Account shall be treated as owned by the Depositor and will be taxable to the
Depositor.
Capitalized
Interest Deposit: Not applicable.
Capitalized
Interest Release Amount: With respect to any Supplemental
Transfer Date, the amount specified as the “Capitalized Interest Release Amount”
in the related Supplemental Transfer Agreement.
Capitalized
Interest Requirement: With respect to each Funding Period
Distribution Date, the excess, if any, of (a) the sum of (1) Current Interest
for each Class of Certificates for such Distribution Date, plus (2) the Trustee
Fee, over (b) with respect to each Mortgage Loan, (1) 1/12 of the product of
the
related Adjusted Mortgage Rate and the related Stated Principal Balance as
of
the related Due Date (prior to giving effect to any Scheduled Payment due on
such Mortgage Loan on such Due Date).
Carryover
Reserve Fund: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 3.05(i) in the name of the Trustee
for the benefit of the Holders of the LIBOR Certificates and designated “The
Bank of New York in trust for registered holders of CWALT, Inc., Alternative
Loan Trust 2007-OH3, Mortgage Pass-Through Certificates, Series
2007-OH3.” Funds in the Carryover Reserve Fund shall be held in trust
for the Holders of the LIBOR Certificates for the uses and purposes set forth
in
this Agreement.
Certificate: Any
one of the Certificates executed by the Trustee in substantially the forms
attached to this Agreement as exhibits.
Certificate
Account: The separate Eligible Account or Accounts created and
maintained by the Master Servicer pursuant to Section 3.05 with a
depository institution, initially Countrywide Bank, F.S.B., in the name of
the
Master Servicer for the benefit of the Trustee on behalf of Certificateholders
and designated “Countrywide Home Loans Servicing LP in trust for
15
the
registered holders of Alternative Loan Trust 2007-OH3, Mortgage Pass-Through
Certificates Series 2007-OH3.”
Certificate
Balance: With respect to any Certificate (other than the Class
C-P Certificates) at any date, the maximum dollar amount of principal to which
the Holder thereof is then entitled under this Agreement, such amount being
equal to the Denomination of that Certificate (A) plus any increase to the
Certificate Balance of such Certificate pursuant to Section 4.02 due to the
receipt of Subsequent Recoveries, (B) minus the sum of (i) all
distributions of principal previously made with respect to that Certificate
and
(ii) any Applied Realized Loss Amounts allocated to such Certificate on previous
Distribution Dates pursuant to Section 4.02 without duplication and (C)
increased by the amount of Net Deferred Interest allocated to that
Certificate pursuant to Section 4.03.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate. For the
purposes of this Agreement, in order for a Certificate Owner to enforce any
of
its rights under this Agreement, it shall first have to provide evidence of
its
beneficial ownership interest in a Certificate that is reasonably satisfactory
to the Trustee, the Depositor, and/or the Master Servicer, as
applicable.
Certificate
Register: The register maintained pursuant to
Section 5.02.
Certificate
Swap Account: The separate Eligible Account created and initially
maintained by the Swap Trustee pursuant to Section 4.10.
Certificate
Swap Certificates: As specified in the Preliminary Statement.
Certificate
Swap Contract: The transaction evidenced by the confirmation,
Global Deal ID “3219397” (as assigned to the Swap Contract Administrator
pursuant to the Certificate Swap Contract Assignment Agreement).
Certificate
Swap Contract Assignment Agreement: The assignment agreement
dated as of the Closing Date among Countrywide, the Swap Contract Administrator
and the Certificate Swap Counterparty.
Certificate
Swap Contract Termination Date: The Distribution Date in July
2012.
Certificate
Swap Counterparty: Xxxxxx Brothers Special Financing Inc. and its
successors.
Certificate
Swap ISDA Master Agreement: The 1992 ISDA Master Agreement
(Multicurrency – Cross Border), including the Schedule and Credit Support Annex
thereto, dated July 30, 2007, between the Certificate Swap Counterparty and
the
Swap Contract Administrator.
Certificate
Swap Termination Payment: The payment payable to either the
Certificate Swap Counterparty or the Swap Contract Administrator under the
Certificate Swap Contract due to an early termination of the Certificate Swap
Contract.
16
Certificateholder
or Holder: The person in whose name a Certificate is registered
in the Certificate Register, except that, solely for the purpose of giving
any
consent pursuant to this Agreement, any Certificate registered in the name
of
the Depositor or any affiliate of the Depositor shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that
if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to
be
Outstanding for purposes of any provision of this Agreement (other than the
second sentence of Section 10.01) that requires the consent of the Holders
of
Certificates of a particular Class as a condition to the taking of any action
under this Agreement. The Trustee is entitled to rely conclusively on
a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of
the
Depositor.
Certification
Party: As defined in Section 11.05.
Certifying
Person: As defined in Section 11.05.
Class: All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class
A-1-B Net Swap Payment: With respect to the Class A-1-B Swap
Contract, any Distribution Date and payment by the Swap Contract Administrator
to the Class A-1-B Swap Counterparty, the excess, if any, of the “Floating
Amount II” (as defined in the Class A-1-B Swap Contract) with respect to such
Distribution Date over the “Floating Amount I” (as defined in the Class A-1-B
Swap Contract) with respect to such Distribution Date. With respect
to the Class A-1-B Swap Contract, any Distribution Date and payment by the
Class
A-1-B Swap Counterparty to the Swap Contract Administrator, the excess, if
any,
of the “Floating Amount I” with respect to such Distribution Date over the
“Floating Amount II” with respect to such Distribution Date.
Class
A-1-B Swap Account: The separate Eligible Account created and
initially maintained by the Swap Trustee pursuant to Section 4.10.
Class
A-1-B Swap Adjustment Rate: For the Class A-1-B Certificates and
the Distribution Date prior to the termination of the Class A-1-B Swap Contract,
a fraction, expressed as a percentage (A) the numerator of which is equal to
the
product of (i) the Class A-1-B Swap Fee payable to the Class A-1-B Swap
Counterparty with respect to such Distribution Date and (ii) a fraction, the
numerator of which is 360 and the denominator of which is the actual number
of
days in the related Interest Accrual Period and (B) the denominator of which
is
the Class Certificate Balance of the Class A-1-B Certificates immediately prior
to such Distribution Date.
Class
A-1-B Swap Contract: The transaction evidenced by the
confirmation, reference number “67140” (as assigned to the Swap Contract
Administrator pursuant to the Class A-1-B Swap Contract Assignment
Agreement).
17
Class
A-1-B Swap Contract Assignment Agreement: The assignment
agreement dated as of the Closing Date among Countrywide, the Swap Contract
Administrator and the Class A-1-B Swap Counterparty.
Class
A-1-B Swap Contract Termination Date: With respect to the Class
A-1-B Swap Contract, the earlier of (i) the date on which the Class Certificate
Balance of the Class A-1-B Certificates has been reduced to zero and (ii) the
Distribution Date in September 2047.
Class
A-1-B Swap Counterparty: BNP Paribas and its
successors.
Class
A-1-B Swap Fee: With respect to any Distribution Date prior to
the termination of the Class A-1-B Swap Contract, the lesser of (1) the sum
of
(x) the product of (a) either (i) 0.07% for any Distribution Date on or prior
to
the Optional Termination Date or (ii) 0.14% for any Distribution Date after
the
Optional Termination Date, (b) the Class Certificate Balance of the Class A-1-B
Certificates immediately prior to such Distribution Date and (c) the actual
number of days in the related Interest Accrual Period divided by 360, and (y)
the excess, if any, of the amount calculated pursuant to clause (x) above on
prior Distribution Dates over the amount actually paid to the Class A-1-B Swap
Account on account of the Class A-1-B Swap Fee on prior Distribution Dates
and
(2) Interest Funds available for the payment thereof in accordance with the
priority of payments described under Section 4.02(a).
Class
A-1-B Swap ISDA Master Agreement: The 1992 ISDA Master Agreement
(Multicurrency – Cross Border), including the Schedule and Credit Support Annex
thereto, dated July 30, 2007, between the Class A-1-B Swap Counterparty and
the
Swap Contract Administrator.
Class
A-1-B Swap Principal Amount: With respect to any Distribution
Date prior to the termination of the Class A-1-B Swap Contract, the excess,
if
any, of (i) the aggregate amount of Net Deferred Interest that would otherwise
be allocable to the Class A-1-B Certificates in accordance with Section 4.03
in
the absence of the Class A-1-B Swap Contract over (ii) distributions in respect
of the Class A-1-B Swap Principal Amount made to the Class A-1-B Swap Account
pursuant to Sections 4.02(b), (c) and (d) prior to such Distribution
Date. With respect to any Distribution Date after the termination of
the Class A-1-B Swap Contract, zero.
Class
A-1-B Swap Termination Payment: The payment payable to either the
Class A-1-B Swap Counterparty or the Swap Contract Administrator under the
Class
A-1-B Swap Contract due to an early termination of the Class A-1-B Swap
Contract.
Class
C-P Distributable Amount: As defined in the Preliminary
Statement.
Class
Certificate Balance: With respect to any Class of Certificates
(other than the Class C-P Certificates) and as to any date of determination,
the
aggregate of the Certificate Balances of all Certificates of such Class as
of
such date. With respect to the Class C-P Certificates and any
Distribution Date, the excess, if any, of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due Date in the prior calendar month (after
giving effect to Principal Prepayments, the principal portion of any Liquidation
Proceeds and any Subsequent Recoveries received in the Prepayment Period related
to that prior Due Date) over the sum of (i) the
18
aggregate
Class Certificate Balance of the LIBOR Certificates and (ii) the Class A-1-B
Swap Principal Amount, if any, in each case, immediately prior to that
Distribution Date.
Closing
Date: July 30, 2007.
Code: The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
COFI: The
Monthly Weighted Average Cost of Funds Index for the Eleventh District Savings
Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI
Certificates: As specified in the Preliminary
Statement.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest: As to any Distribution Date, an amount equal to the
product of 50% and the aggregate Master Servicing Fee payable to the Master
Servicer for that Distribution Date.
Component: As
specified in the Preliminary Statement.
Component
Balance: Not applicable.
Component
Certificates: As specified in the Preliminary
Statement.
Component
Notional Amount: Not applicable.
Coop
Shares: Shares issued by a Cooperative Corporation.
Cooperative
Corporation: The entity that holds title (fee or an acceptable leasehold
estate) to the real property and improvements constituting the Cooperative
Property and which governs the Cooperative Property, which Cooperative
Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative
Loan: Any Mortgage Loan secured by Coop Shares and a Proprietary
Lease.
Cooperative
Property: The real property and improvements owned by the Cooperative
Corporation, including the allocation of individual dwelling units to the
holders of the Coop Shares of the Cooperative Corporation.
Cooperative
Unit: A single family dwelling located in a Cooperative
Property.
Corporate
Trust Office: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the
execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, 0 Xxxx, Xxx Xxxx,
Xxx Xxxx 00000 (Attn: Mortgage-Backed Securities Group, CWALT, Inc.
Series 2007-OH3, facsimile no. (000) 000-0000), and which is the address to
which notices to and correspondence with the Trustee should be
directed.
19
Countrywide: Countrywide
Home Loans, Inc., a New York corporation and its successors and assigns, in
its
capacity as the seller of the Countrywide Mortgage Loans to the
Depositor.
Countrywide
Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Countrywide is the applicable
Seller.
Countrywide
Servicing: Countrywide Home Loans Servicing LP, a Texas limited partnership
and its successors and assigns.
Covered
Certificates: With respect to the Certificate Swap Contract, the
LIBOR Certificates. With respect to the Class A-1-B Swap Contract,
the Class A-1-B Certificates.
Cumulative
Loss Trigger Event: With respect to a Distribution Date on or after the
Stepdown Date, if the aggregate amount of Realized Losses on the Mortgage Loans
from (and including) the Cut-off Date to (and including) the related Due Date
(reduced by the aggregate amount of Subsequent Recoveries received from the
Cut-off Date through the Prepayment Period related to that Due Date) exceeds
the
applicable percentage, for such Distribution Date, of the Cut-off Date Pool
Principal Balance as set forth below:
|
Distribution
Date
|
Percentage
|
|
August
2009 – July 2010
|
0.200%
with respect to August 2009, plus an additional 1/12th of
0.250% for each month thereafter through July 2010
|
|
August
2010 – July 2011
|
0.450%
with respect to August 2010, plus an additional 1/12th of
0.350% for each month thereafter through July
2011
|
|
August
2011 – July 2012
|
0.800%
with respect to August 2011, plus an additional 1/12th of
0.350% for each month thereafter through July 2012
|
|
August
2012 – July 2013
|
1.150%
with respect to August 2012, plus an additional 1/12th of
0.400% for each month thereafter through July 2013
|
|
August
2013 – July 2014
|
1.550%
with respect to August 2013, plus an additional 1/12th of
0.150% for each month thereafter through July 2014
|
|
August
2014 and thereafter
|
1.700%
|
Current
Interest: With respect to each Class of Certificates (other than
the Class C-P Certificates) and each Distribution Date, the excess, if any,
of
(i) interest accrued at the applicable Pass-Through Rate for the applicable
Interest Accrual Period on the Class Certificate Balance of such Class
immediately prior to such Distribution Date over (ii) the Net Deferred Interest,
if any, allocated to that Class for such Distribution Date pursuant to Section
4.03. Interest on any Delay Certificates shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months. Interest on any
Non-Delay Certificates shall be calculated on the basis of a 360-day year
and
the actual number of days elapsed in the applicable Interest Accrual
Period.
20
Cut-off
Date: In the case of any Initial Mortgage Loan, the Initial
Cut-off Date, and in the case of any Supplemental Mortgage Loan, the related
Supplemental Cut-off Date.
Cut-off
Date Pool Principal Balance: An amount equal to the sum of (x)
the Initial Cut-off Date Pool Principal Balance plus (y) the amount, if any,
deposited in the Pre-Funding Account on the Closing Date.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off
Date.
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or
any reduction that results in a permanent forgiveness of principal.
Defective
Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deferred
Interest: With respect to each Mortgage Loan and Due Period, the
amount of interest accrued on such Mortgage Loan at the applicable Mortgage
Rate
from the Due Date in the preceding Due Period to the Due Date in such Due Period
that is greater than the Scheduled Payment due on such Mortgage Loan for such
Due Period and that is added to the principal balance of such Mortgage Loan
in
accordance with the terms of the related Mortgage Note.
Deficient
Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than
the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in
the amount of principal to be paid in connection with any Scheduled Payment
that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of such court which is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive
Certificates: Any Certificate evidenced by a Physical Certificate
and any Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Delay
Certificates: As specified in the Preliminary Statement.
Delay
Delivery Certification: As defined in Section
2.02(a).
Delay
Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to the Trustee on the
Closing Date or Supplemental Transfer Date, as applicable. The number
of Delay Delivery Mortgage Loans shall not exceed 50% of the aggregate number
of
Initial Mortgage Loans and 90% of the Supplemental Mortgage Loans conveyed
on
the related Supplemental Transfer Date. To the extent that
Countrywide Servicing shall be in possession of any Mortgage Files with respect
to any Delay Delivery Mortgage Loan, until delivery of such Mortgage File to
the
Trustee as provided in Section 2.01, Countrywide Servicing shall hold such
files
as Master Servicer hereunder, as agent and in trust for the
Trustee.
Deleted
Mortgage Loan: As defined in Section 2.03(c).
21
Delinquency
Trigger Event: With respect to a Distribution Date on or after the Stepdown
Date exists if the Rolling Sixty-Day Delinquency Rate equals or exceeds the
product of (i) the Senior Enhancement Percentage for such Distribution Date
and
(ii) the applicable percentage listed below for the most senior Class of
Certificates then outstanding.
|
Class
|
Percentage
|
|
Senior
Certificates
|
40.00%
|
|
M-1
|
53.25%
|
|
M-2
|
68.25%
|
|
M-3
|
78.25%
|
|
M-4
|
91.50%
|
|
M-5
|
110.00%
|
|
M-6
|
145.75%
|
|
M-7
|
207.50%
|
Denomination: With
respect to each Certificate, the amount set forth on the face of that
Certificate as the “Initial Certificate Balance of this Certificate” or the
“Initial Notional Amount of this Certificate” or, if neither of the foregoing,
the Percentage Interest appearing on the face of that Certificate.
Depositor: CWALT,
Inc., a Delaware corporation, or its successor in interest.
Depository: The
initial Depository shall be The Depository Trust Company, the nominee of which
is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the Uniform Commercial
Code of the State of New York.
Depository
Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination
Date: As to any Distribution Date, the 22nd day
of each month
or, if such 22nd day is
not a
Business Day, the next preceding Business Day; provided, however, that if such
22nd day or
such Business Day, whichever is applicable, is less than two Business Days
prior
to the related Distribution Date, the Determination Date shall be the first
Business Day that is two Business Days preceding such Distribution
Date.
Directing
Certificateholder: As defined in Section 9.04(a).
Distribution
Account: The separate Eligible Account created and maintained by
the Trustee pursuant to Section 3.05(d) in the name of the Trustee for the
benefit of the Certificateholders and designated “The Bank of New York in trust
for registered holders of Alternative Loan Trust 2007-OH3, Mortgage Pass-Through
Certificates, Series 2007-OH3.” Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes
set
forth in this Agreement.
22
Distribution
Account Deposit Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution
Date.
Distribution
Date: The 25th day
of each
calendar month after the initial issuance of the Certificates, or if such
25th day is
not
a Business Day, the next succeeding Business Day, commencing in August
2007.
Due
Date: With respect to a Mortgage Loan, the date on which
Scheduled Payments are due on that Mortgage Loan. With respect to any
Distribution Date, the related Due Date is the first day of the calendar month
in which that Distribution Date occurs.
Due
Period: With respect to any Distribution Date, the period
beginning on the second day of the calendar month preceding the month in which
such Distribution Date occurs and ending on the first day of the calendar month
in which such Distribution Date occurs.
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that does not have the requisite ratings and is
the
principal subsidiary of a holding company, the debt obligations of such holding
company) have (a) the highest short-term ratings of Xxxxx’x or Fitch and (b) (1)
if such Eligible Account is not the Pre-Funding Account or the Capitalized
Interest Account, one of the two highest short-term ratings of S&P (or, if
such entity does not have a short-term rating from S&P, the long-term
unsecured and unsubordinated debt obligations of such entity have a rating
from
S&P of at least “BBB+”) and (2) if such Eligible Account is the Pre-Funding
Account or the Capitalized Interest Account, the highest short-term ratings
of
S&P (or, if such entity does not have a short-term rating from S&P, the
long-term unsecured and unsubordinated debt obligations of such entity have
a
rating from S&P of at least “A+”) (ii) a segregated trust account or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution subject to regulations regarding fiduciary
funds on deposit similar to Title 12 of the Code of Federal Regulations, Chapter
I, Part 9, Section 9.10(b), which has corporate trust powers, 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
Trustee. In the event that the federal or state chartered depository
institution or trust company maintaining an Eligible Account described in clause
(i) above no longer satisfies the credit rating of S&P set forth in clause
(i)(b)(1) above then the Person responsible for establishing such Eligible
Account shall cause any amounts on deposit therein to be moved to another
federal or state chartered depository institution or trust company satisfying
such credit rating of S&P within 30 calendar days. In the event
that the federal or state chartered depository institution or trust company
maintaining an Eligible Account described in clause (i) above no longer
satisfies the credit rating of S&P set forth in clause (i)(b)(2) above then
the Person responsible for establishing such Eligible Account shall cause any
amounts on deposit therein to be moved to another federal or state chartered
depository institution or trust company satisfying such credit rating of S&P
within 60 calendar days.
23
Eligible
EPD Protected Mortgage Loan: A Mortgage Loan that (i) was
originated not more than one year prior to the Closing Date, (ii) was purchased
by a Seller or one of its affiliates pursuant to a purchase agreement containing
provisions under which the seller thereunder has become obligated to repurchase
such Mortgage Loan from Countrywide due to a Scheduled Payment due on or prior
to the first Scheduled Payment owing to the Trust Fund becoming delinquent
and
(iii) was not purchased through Countrywide Home Loan Inc.’s Correspondent
Lending Division.
Eligible
Repurchase Month: As defined in Section 3.11.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting: A best efforts or firm commitment underwriting or
private placement that meets the requirements of an Underwriter’s
Exemption.
ERISA-Restricted
Certificate: As specified in the Preliminary
Statement.
Escrow
Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a).
Event
of Default: As defined in Section 7.01.
Excess
Cashflow: With respect to any Distribution Date the sum of (i)
the amount remaining as set forth in Section 4.02(a)(5), and (ii) the amount
remaining as set forth in Section 4.02(b)(1)(d) or 4.02(b)(2)(c), as applicable,
in each case for such Distribution Date.
Excess
Overcollateralization Amount: With respect to any Distribution Date, the
excess, if any, of the Overcollateralized Amount for such Distribution Date
over
the Overcollateralization Target Amount for such Distribution Date.
Excess
Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds received with
respect to such Mortgage Loan during the calendar month in which such Mortgage
Loan became a Liquidated Mortgage Loan plus any Subsequent Recoveries received
with respect to such Mortgage Loan, net of any amounts previously reimbursed
to
the Master Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid principal balance
of such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest
at
the Mortgage Rate from the Due Date as to which interest was last paid or
advanced (and not reimbursed) to Certificateholders up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange
Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under
the
Exchange Act.
24
Expense
Fee: As to each Mortgage Loan and any Distribution Date, the
product of the related Expense Fee Rate and its Stated Principal Balance as
of
that Distribution Date.
Expense
Fee Rate: As to each Mortgage Loan and any date of determination,
the sum of (a) the related Master Servicing Fee Rate and (b) the Trustee Fee
Rate.
Extra
Principal Distribution Amount: With respect to any Distribution
Date, the lesser of (1) the Overcollateralization Deficiency Amount and (2)
the
Excess Cashflow available for payment pursuant to Section 4.02(c).
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor to the Federal Home Loan Mortgage
Corporation.
Final
Certification: As defined in Section 2.02(a).
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Fitch:
Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group, or such other address as Fitch may hereafter
furnish to the Depositor and the Master Servicer.
FNMA: The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor to the Federal National Mortgage
Association.
Form
10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending (a) against such Person, or
(b)
against any of the Trust Fund, the Depositor, the Trustee, any co-trustee,
the
Master Servicer or any Subservicer, if such Person has actual knowledge
thereof.
Form
10-K Disclosure Item: With respect to any Person, (a) any Form
10-D Disclosure Item, and (b) any affiliations or relationships between such
Person and any Item 1119 Party.
Funding
Period: Not applicable.
Funding
Period Distribution Date: Each Distribution Date during the
Funding Period and, if the Funding Period ends after the Distribution Date
in a
month, the immediately succeeding Distribution Date.
Gross
Margin: With respect to each Mortgage Loan, the fixed percentage
set forth in the related Mortgage Note that is added to the Mortgage Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
25
Index: With
respect to any Interest Accrual Period for the COFI Certificates, if any, the
then-applicable index used by the Trustee pursuant to Section 4.07 to determine
the applicable Pass-Through Rate for such Interest Accrual Period for the COFI
Certificates.
Indirect
Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial
Certification: As defined in Section 2.02(a).
Initial
Component Balance: As specified in the Preliminary
Statement.
Initial
Cut-off Date: With respect to any Initial Mortgage Loan, the
later of (i) the date of origination of such Mortgage Loan and (ii) July 1,
2007.
Initial
Cut-off Date Pool Principal Balance: $587,463,192
Initial
LIBOR Rate: 5.320%.
Initial
Mortgage Loan: A Mortgage Loan conveyed to the Trust Fund on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
Insurance
Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest
Accrual Period: With respect to each Class of Delay Certificates,
its corresponding REMIC Regular Interest and any Distribution Date, the calendar
month prior to the month of such Distribution Date. With respect to
any Class of Non-Delay Certificates, its corresponding REMIC Regular Interest
and any Distribution Date, the period commencing on the Distribution Date in
the
month preceding the month in which such Distribution Date occurs (other than
the
first Distribution Date, for which it is the Closing Date) and ending on the
day
preceding such Distribution Date.
Interest
Carry Forward Amount: With respect to each Class of Certificates
(other than the Class C-P Certificates) and each Distribution Date, the excess
of (i) the Current Interest for such Class with respect to prior Distribution
Dates over (ii) the amount actually distributed to such Class with respect
to
interest on such prior Distribution Dates.
Interest
Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for
the COFI Certificates for which the applicable Index is LIBOR, the second
Business Day prior to the first day of such Interest
26
Accrual
Period. With respect to the MTA Certificates, the 15th day prior
to the
commencement of each Interest Accrual Period or, if such 15th day is
not a
Business Day, the next preceding Business Day.
Interest
Funds: With respect to any Distribution Date, an amount equal to
(a) the sum of the Interest Remittance Amount for that Distribution Date and
the
lesser of (i) the aggregate Deferred Interest that accrued on the Mortgage
Loans
for the related Due Period and (ii) the Principal Prepayment Amount for such
Distribution Date, minus (b) the Trustee Fee for such Distribution
Date.
Interest
Remittance Amount: With respect to any Distribution Date, (x) the
sum, without duplication, of (i) all scheduled interest on the Mortgage Loans
due on the related Due Date and received on or prior to the related
Determination Date, less the related Master Servicing Fees and any payments
made
in respect of premiums on Lender PMI Mortgage Loans, (ii) all interest on
Principal Prepayments, other than Prepayment Interest Excess, (iii) all Advances
relating to interest, (iv) all Compensating Interest and (v) all Liquidation
Proceeds received during the related Prepayment Period (to the extent such
Liquidation Proceeds relate to interest), less (y) all reimbursements to the
Master Servicer since the immediately preceding Due Date for Advances of
interest previously made.
Investment
Letter: As defined in Section 5.02(b).
ISDA
Master Agreement: The Class A-1-B Swap ISDA Master Agreement or
the Certificate Swap ISDA Master Agreement, as applicable.
Item
1119 Party: The Depositor, any Seller, the Master Servicer, the
Trustee, any Subservicer, any originator identified in the Prospectus
Supplement, the Certificate Swap Counterparty, the Class A-1-B Swap Counterparty
and any other material transaction party, as identified in Exhibit X hereto,
as
updated pursuant to Section 11.04.
Latest
Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender
PMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the Mortgagor) acquires the Primary Insurance Policy and charges
the related Mortgagor an interest premium.
LIBOR: The
London interbank offered rate for one-month United States dollar deposits
calculated in the manner described in Section 4.08.
LIBOR
Certificates: As specified in the Preliminary
Statement.
Limited
Exchange Act Reporting Obligations: The obligations of the Master
Servicer under Section 3.16(b), Section 6.02 and Section 6.04 with respect
to
notice and information to be provided to the Depositor and Article XI (except
Section 11.07(a)(1) and (2)).
27
Liquidated
Mortgage Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the Master
Servicer has determined (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of such
Mortgage Loan, including the final disposition of an REO Property.
Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee’s sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Master Servicing Fees, Servicing Advances
and Advances.
Loan-to-Value
Ratio: With respect to any Mortgage Loan and as to any date of
determination, the fraction (expressed as a percentage) the numerator of which
is the principal balance of the related Mortgage Loan at that date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Lost
Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance:
With respect to any Cooperative Unit, the rent paid by the Mortgagor to the
Cooperative Corporation pursuant to the Proprietary Lease.
Majority
in Interest: As to any Class of Regular Certificates, the Holders
of Certificates of such Class evidencing, in the aggregate, at least 51% of
the
Percentage Interests evidenced by all Certificates of such Class.
Master
REMIC: As described in the Preliminary Statement.
Master
Servicer: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as master servicer
hereunder.
Master
Servicer Advance Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution
Date.
Master
Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the
Due
Date in the month preceding the month of such Distribution Date, subject to
reduction as provided in Section 3.14.
Master
Servicing Fee Rate: With respect to each Mortgage Loan, 0.375%
per annum.
Maximum
Mortgage Rate: With respect to each Mortgage Loan, the maximum
rate of interest set forth as such in the related Mortgage Note.
28
Maximum
Negative Amortization: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the percentage of the
original principal balance of Mortgage Note, that if exceeded due to Deferred
Interest, will result in a recalculation of the Scheduled Payment so that the
then unpaid principal balance of the Mortgage Note will be fully amortized
over
the Mortgage Loan’s remaining term to maturity.
Maximum
Rate: 10% per annum.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor to Mortgage Electronic
Registration Systems, Inc.
MERS
Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS® System.
MERS®
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
mortgage identification number for any MERS Mortgage Loan.
Minimum
Auction Amount: With respect to any auction of the Mortgage Loans
and any REO Properties pursuant to Section 9.04, the sum of (i) the Termination
Price that would be payable by the NIM Insurer if the Optional Termination
were
exercised in the following calendar month pursuant to Section 9.01 and (ii)
all
reasonable fees and expenses incurred by the Trustee in connection with any
auction conducted pursuant to Section 9.04.
Minimum
Mortgage Rate: With respect to each Mortgage Loan, the minimum
rate of interest set forth as such in the related Mortgage Note, which, with
respect to certain Mortgage Loans is equal to the related Gross
Margin.
MOM
Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly
Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody’s: Xxxxx’x
Investors Service, Inc., or any successor thereto. If Xxxxx’x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Moody’s shall be Xxxxx’x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody’s may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: The
mortgage, deed of trust or other instrument creating a first lien on an estate
in fee simple or leasehold interest in real property securing a Mortgage
Note.
Mortgage
File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
29
Mortgage
Index: As to each Mortgage Loan, the index from time to time in
effect for adjustment of the Mortgage Rate as set forth as such on the related
Mortgage Note.
Mortgage
Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the addition of Substitute Mortgage
Loans, the addition of any Supplemental Mortgage Loans pursuant to the
provisions of this Agreement and any Supplemental Transfer Agreement and the
deletion of Deleted Mortgage Loans pursuant to the provisions of this Agreement)
transferred to the Trustee as part of the Trust Fund and from time to time
subject to this Agreement, attached to this Agreement as Schedule I, setting
forth the following information with respect to each Mortgage Loan:
(i) the
loan number;
(ii) [Reserved];
(iii) the
Mortgagor’s name and the street address of the Mortgaged Property, including the
zip code;
(iv) the
maturity date;
(v) the
original principal balance;
(vi) the
Cut-off Date Principal Balance;
(vii) the
first payment date of the Mortgage Loan;
(viii) the
Scheduled Payment in effect as of the Cut-off Date;
(ix) the
Loan-to-Value Ratio at origination;
(x) a
code indicating whether the residential dwelling at the time of origination
was
represented to be owner-occupied;
(xi) a
code indicating whether the residential dwelling is either (a) a
detached or attached single family dwelling, (b) a dwelling in a
de minimis PUD, (c) a condominium unit or PUD (other than a de minimis
PUD), (d) a two- to four-unit residential property or (e) a Cooperative
Unit;
(xii) the
Mortgage Rate in effect as of the Cut-off Date;
(xiii) the
initial Payment Adjustment Date for each Mortgage Loan;
(xiv) a
code indicating whether the Mortgage Loan is a Lender PMI Mortgage Loan and,
in
the case of any Lender PMI Mortgage Loan, a percentage representing the amount
of the related interest premium charged to the borrower;
(xv) the
purpose for the Mortgage Loan;
30
(xvi) the
type of documentation program pursuant to which the Mortgage Loan was
originated;
(xvii) a
code indicating whether the Mortgage Loan is a Countrywide Mortgage Loan, a
Park
Granada Mortgage Loan, a Park Monaco Mortgage Loan or a Park Sienna Mortgage
Loan;
(xviii) the
direct servicer of such Mortgage Loan as of the Cut-off Date;
(xix) a
code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
(xx) with
respect to each Mortgage Loan, the Gross Margin, the Mortgage Index, the Maximum
Mortgage Rate, the Minimum Mortgage Rate, the first Adjustment Date, the Payment
Adjustment Date and the Maximum Negative Amortization for such Mortgage
Loan;
(xxi) a
code indicating the type of Prepayment Charge;
(xxii) the
state of origination of the related Mortgage Loan; and
(xxiii) the
related Prepayment Charge Period.
Such
schedule shall also set forth the total of the amounts described under (v)
and
(vi) above for all of the Mortgage Loans. Countrywide shall update
the Mortgage Loan Schedule in connection with each Supplemental Transfer
Agreement within a reasonable period of time after delivery to it of the
Schedule of Supplemental Mortgage Loans attached to the related Supplemental
Transfer Agreement as Schedule A thereto.
The
Mortgage Loan Schedule shall be amended from time to time by the Master Servicer
in accordance with the provisions of this Agreement and a copy of each amendment
to the Mortgage Loan Schedule related to clauses (xxi), (xxii) and (xxiii)
thereof shall be furnished by the Mater Servicer to the Class C-P
Certificateholders.
Mortgage
Loans: Such of the mortgage loans as from time to time are
transferred and assigned to the Trustee pursuant to the provisions of this
Agreement and that are held as a part of the Trust Fund (including any REO
Property), the mortgage loans so held being identified in the Mortgage Loan
Schedule, notwithstanding foreclosure or other acquisition of title of the
related Mortgaged Property.
Mortgage
Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage
Rate: The annual rate of interest borne by a Mortgage Note from
time to time, net of any interest premium charged by the mortgagee to obtain
or
maintain any Primary Insurance Policy.
Mortgaged
Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
31
Mortgagor: The
obligor(s) on a Mortgage Note.
MTA: The
twelve-month average monthly yield on U.S. Treasury Securities adjusted to
a
constant maturity of one-year, as published by the Federal Reserve Board in
the
Federal Reserve Statistical Release “Selected Interest Rates
(H.15)”.
MTA
Certificates: As specified in the Preliminary
Statement.
National
Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net
Certificate Swap Payment: With respect to any Distribution Date
and payment by the Swap Contract Administrator to the Certificate Swap
Counterparty, the excess, if any, of the “Fixed Amount” (as defined in the
Certificate Swap Contract) with respect to such Distribution Date over the
“Floating Amount” (as defined in the Certificate Swap Contract) with respect to
such Distribution Date. With respect to any Distribution Date and
payment by the Certificate Swap Counterparty to the Swap Contract Administrator,
the excess, if any, of the “Floating Amount” (as defined in the Certificate Swap
Contract) with respect to such Distribution Date over the “Fixed Amount” (as
defined in the Certificate Swap Contract) with respect to such Distribution
Date.
Net
Deferred Interest: With respect to each Distribution Date, an
amount equal to the excess, if any, of the Deferred Interest that accrued on
the
Mortgage Loans from the preceding Due Date to the Due Date related to that
Distribution Date over the Principal Prepayment Amount for that Distribution
Date.
Net
Prepayment Interest Shortfalls: As to any Distribution Date, the excess of
the aggregate Prepayment Interest Shortfalls for such Distribution Date over
the
Compensating Interest for such Distribution Date.
Net
Rate Cap: For each Distribution Date and each Class of LIBOR
Certificates (other than the Class A-1-B Certificates for so long as the Class
A-1-B Swap Contract remains in effect), an amount equal to (a) the product
of
(1) the Weighted Average Adjusted Net Mortgage Rate for that Distribution Date
and (2) a fraction, the numerator of which is 30, and the denominator of which
is the actual number of days that elapsed in the related Interest Accrual
Period, minus (b) a fraction, expressed as a percentage, the numerator of which
is the sum of (1) the Net Certificate Swap Payment payable to the Certificate
Swap Counterparty with respect to that Distribution Date times a fraction,
the
numerator of which is equal to 360 and the denominator of which is equal to
the
actual number of days in the related Interest Accrual Period and (2) any
Certificate Swap Termination Payment payable to the Certificate Swap
Counterparty for that Distribution Date (other than a Certificate Swap
Termination Payment due to a Swap Counterparty Trigger Event) and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans as of the Due Date occurring in the month preceding the month of that
Distribution Date (after giving effect to Principal Prepayments received in
the
Prepayment Period related to that prior Due Date).
For
each
Distribution Date and the Class A-1-B Certificates for so long as the Class
A-1-B Swap Contract remains in effect, the excess, if any, of (a) the Net Rate
Cap calculated pursuant
32
to
the
preceding paragraph over (b) the Class A-1-B Swap Adjustment Rate for such
Distribution Date.
Net
Rate Carryover: For any Class of Certificates (other than the
Class C-P Certificates) and any Distribution Date, the sum of (A) the excess,
if
any, of (i) the amount of interest that such Class would otherwise have accrued
for such Distribution Date had the applicable Pass-Through Rate for such Class
not been determined based on the related Net Rate Cap (provided that such
Pass-Through Rate shall still be subject to the Maximum Rate), over (ii) the
amount of interest accrued on such Class at the related Net Rate Cap for such
Distribution Date and (B) the Net Rate Carryover for such Class for all previous
Distribution Dates not previously paid pursuant to Section 4.02, together with
interest thereon at the then applicable Pass-Through Rate for such Class,
without giving effect to the related Net Rate Cap but subject to the Maximum
Rate.
NIM
Insurer: Any insurer guarantying at the request of Countrywide certain
payments under notes backed or secured by the Class C-P
Certificates.
Non-Delay
Certificates: As specified in the Preliminary
Statement.
Nonrecoverable
Advance: Any portion of an Advance previously made or proposed to
be made by the Master Servicer that, in the good faith judgment of the Master
Servicer, will not be ultimately recoverable by the Master Servicer from the
related Mortgagor, related Liquidation Proceeds or otherwise.
Notice
of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender
thereof.
Notional
Amount: Not applicable.
Notional
Amount Certificates: As specified in the Preliminary
Statement.
OC
Floor: With respect to any Distribution Date (i) prior to the
Distribution Date in August 2027, an amount equal to 0.50% of the Cut-off Date
Pool Principal Balance and (ii) on or after the Distribution Date in August
2027, the greater of (a) 0.50% of the Cut-off Date Pool Principal Balance and
(b) the sum of (x) the aggregate Stated Principal Balance of the Mortgage Loans
with original terms to maturity of 40 years as of the Due Date in the month
of
that Distribution Date (after giving effect to the principal prepayments
received in the related Prepayment Period) and (y) 0.10% of the Cut-off Date
Pool Principal Balance.
Offered
Certificates: As specified in the Preliminary
Statement.
Officer’s
Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant
Treasurers or Assistant Secretaries of the Depositor, (ii) in the case of the
Master Servicer, signed by the President, an Executive Vice President, a Vice
President, an Assistant Vice President, the Treasurer, or one of the Assistant
Treasurers or Assistant
33
Secretaries
of Countrywide GP, Inc., its general partner, (iii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered
to
the Depositor and the Trustee, as the case may be, as required by this Agreement
or (iv) in the case of any other Person, signed by an authorized officer of
such
Person.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, any Seller or the Master Servicer, including in house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect
to
the interpretation or application of the REMIC Provisions, such counsel must
(i)
in fact be independent of the Depositor, any Seller and the Master Servicer,
(ii) not have any direct financial interest in the Depositor, any Seller or
the
Master Servicer or in any affiliate thereof, and (iii) not be connected with
the
Depositor, any Seller or the Master Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Optional
Termination: The termination of the Trust Fund provided hereunder
pursuant to clause (a) of the first sentence of Section 9.01.
Optional
Termination Date: The first Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than or equal
to 10% of the Cut-off Date Pool Principal Balance.
Original
Mortgage Loan: The mortgage loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
OTS: The
Office of Thrift Supervision.
Outside
Reference Date: As to any Interest Accrual Period for the COFI
Certificates, the close of business on the tenth day thereof.
Outstanding: With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Trustee pursuant to this Agreement.
Outstanding
Mortgage Loan: As of any Due Date, a Mortgage Loan with a Stated
Principal Balance greater than zero, which was not the subject of a Principal
Prepayment in Full prior to the end of the related Prepayment Period and which
did not become a Liquidated Mortgage Loan prior to the end of the related
Prepayment Period.
Overcollateralization
Deficiency Amount: With respect to any Distribution
Date, the amount, if any, by which the Overcollateralization Target Amount
exceeds the Overcollateralized Amount on such Distribution Date (after giving
effect to distributions in respect of the Principal Remittance Amount on such
Distribution Date).
34
Overcollateralization
Reduction Amount: With respect to any Distribution Date, an amount equal to
the lesser of (i) the Excess Overcollateralization Amount for such Distribution
Date and (ii) the Principal Remittance Amount for such Distribution
Date.
Overcollateralization
Target Amount: With respect to any Distribution Date (a) initial
prior to the Stepdown Date, an amount equal to 1.300% of the Cut-off Date Pool
Principal Balance and (b) on or after the Stepdown Date, the greater of (i)
(x)
for any Distribution Date prior to the Distribution Date in August 2013, an
amount equal to 3.250% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month of that Distribution Date (after giving
effect to Principal Prepayments received in the related Prepayment Period)
and
(y) for any Distribution Date on or after the Distribution Date in August 2013,
an amount equal to 2.600% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month of that Distribution Date (after
giving effect to Principal Prepayments received in the related Prepayment
Period) and (ii) the OC Floor; provided, however, that if a Trigger Event is
in
effect on any Distribution Date, the Overcollateralization Target Amount will
be
the Overcollateralization Target Amount as in effect for the prior Distribution
Date.
Overcollateralized
Amount: For any Distribution Date, the amount, if any, by which
(x) the aggregate Stated Principal Balance of the Mortgage Loans as of the
Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments, the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the related Prepayment Period) and any amount
on deposit in the Pre-Funding Account on that Distribution Date exceeds (y)
the
sum of (i) the aggregate Class Certificate Balance of the Certificates (other
than the Class C-P Certificates) as of such Distribution Date and (ii) the
Class
A-1-B Swap Principal Amount, if any, as of such Distribution Date (in each
case,
after giving effect to distributions of the Principal Remittance Amount to
be
made on such Distribution Date and, in the case of the Distribution Date
immediately following the end of the Funding Period, any amounts to be released
from the Pre-Funding Account).
Ownership
Interest: As to any Residual Certificate, any ownership interest
in such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Park
Granada: Park Granada LLC, a Delaware limited liability company,
and its successors and assigns, in its capacity as the seller of the Park
Granada Mortgage Loans to the Depositor.
Park
Granada Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Granada is the applicable
Seller.
Park
Monaco: Park Monaco Inc., a Delaware corporation, and its
successors and assigns, in its capacity as the seller of the Park Monaco
Mortgage Loans to the Depositor.
Park
Monaco Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Monaco is the applicable
Seller.
Park
Sienna: Park Sienna LLC, a Delaware limited liability company,
and its successors and assigns, in its capacity as the seller of the Park Sienna
Mortgage Loans to the Depositor.
35
Park
Sienna Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Sienna is the applicable
Seller.
Pass-Through
Margin: With respect to the Interest Accrual Period for any
Distribution Date and Class of LIBOR Certificates, the per annum rate indicated
in the following table:
|
Class
of Certificates
|
Pass-Through
Margin
|
|||
|
(1)
|
(2)
|
|||
|
Class
A-1-A
|
0.290%
|
0.580%
|
||
|
Class
A-1-B
|
0.220%
(3)
|
0.440%
(3)
|
||
|
Class
A-2
|
0.350%
|
0.700%
|
||
|
Class
A-3
|
0.500%
|
1.000%
|
||
|
Class
M-1
|
0.800%
|
1.200%
|
||
|
Class
M-2
|
1.000%
|
1.500%
|
||
|
Class
M-3
|
1.250%
|
1.875%
|
||
|
Class
M-4
|
1.750%
|
2.625%
|
||
|
Class
M-5
|
1.750%
|
2.625%
|
||
|
Class
M-6
|
1.750%
|
2.625%
|
||
|
Class
M-7
|
1.750%
|
2.625%
|
||
__________
|
|
(1)
|
For
the Interest Accrual Period related to any Distribution Date occurring
on
or prior to the Optional Termination
Date.
|
|
|
(2)
|
For
the Interest Accrual Period related to any Distribution Date occurring
after the Optional Termination
Date.
|
|
|
(3)
|
In
the event that the Class A-1-B Swap Contract is terminated, the
Pass-Through Margin for the Class A-1-B Certificates will be (i)
0.290%
for the Interest Accrual Period related to any Distribution Date
occurring
on or prior to the Optional Termination Date and (ii) 0.580% for
the
Interest Accrual Period related to any Distribution Date occurring
after
the Optional Termination Date.
|
Pass-Through
Rate: With respect to each Class of LIBOR Certificates and the Interest
Accrual Period related to any Distribution Date, a per annum rate equal to
the
least of (a) the sum of (i) LIBOR for such Interest Accrual Period and (ii)
the
Pass-Through Margin for such Class and Interest Accrual Period, (b) the Net
Rate
Cap for such Class for such Distribution Date and (c) the Maximum
Rate. With respect to any Interest Accrual Period and the Class A-R
Certificates, the Net Rate Cap with respect to the LIBOR Certificates (other
than the Class A-1-B Certificates for so long as the Class A-1-B Swap Contract
remains in effect) for the related Distribution Date.
Payment
Adjustment Date: For each Mortgage Loan, the date specified in
the related Mortgage Note as the annual date on which the related Scheduled
Payment will be adjusted.
36
Percentage
Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same
Class. With respect to the Class C-P and Class A-R Certificates, the
portion of the Class evidenced thereby, expressed as a percentage, as stated
on
the face of such Certificate.
Performance
Certification: As defined in Section 11.05.
Permitted
Investments: At any time, any one or more of the following
obligations and securities, each of which shall mature no later than 60 days
after acquisition:
(i) obligations
of the United States or any agency thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or such lower rating as
will
not result in the downgrading or withdrawal of the ratings then assigned to
the
Certificates by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial paper
and/or long term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not a Rating Agency)
are then rated one of the two highest long-term and the highest short-term
ratings of each Rating Agency for such securities, or such lower ratings as
will
not result in the downgrading or withdrawal of the rating then assigned to
the
Certificates by either Rating Agency;
(v) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(vi) units
of a taxable money-market portfolio having the highest rating assigned by each
Rating Agency (except if Fitch is a Rating Agency and has not rated the
portfolio, the highest rating assigned by Moody’s) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States of
America and repurchase agreements collateralized by such obligations;
and
37
(vii) such
other relatively risk free investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each Rating Agency, and
reasonably acceptable to the NIM Insurer, as evidenced by a signed writing
delivered by the NIM Insurer;
provided,
that no such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument.
Permitted
Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any
of the foregoing, (ii) a foreign government, International Organization or
any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on
any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect
to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) an “electing large
partnership” as defined in Section 775 of the Code, (vi) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity created or organized in or under the laws of the United States, any
state
thereof or the District of Columbia, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States or a trust if a court within
the
United States is able to exercise primary supervision over the administration
of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI or any applicable successor form, and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Residual Certificate to such Person may cause
any
REMIC created under this Agreement to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms “United States,”
“State” and “International Organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificate: As specified in the Preliminary
Statement.
Pool
Characteristics: Not applicable.
38
Pool
Stated Principal Balance: The aggregate of the Stated Principal
Balances of the Outstanding Mortgage Loans.
Pre-Funded
Amount: Not applicable.
Pre-Funding
Account: The separate Eligible Account created and maintained by
the Trustee pursuant to Section 3.05 in the name of the Trustee for the benefit
of the Certificateholders and designated “The Bank of New York, in trust for
registered holders of Alternative Loan Trust 2007-OH3, Mortgage Pass-Through
Certificates, Series 2007-OH3.” Funds in the Pre-Funding Account
shall be held in trust for the Certificateholders for the uses and purposes
set
forth in this Agreement and shall not be a part of any REMIC created hereunder;
provided, however, that any investment income earned from Permitted Investments
made with funds in the Pre-Funding Account shall be for the account of the
Depositor.
Premium: With
respect to any Eligible EPD Protected Mortgage Loan purchased by the Master
Servicer pursuant to Section 3.11, the excess, if any, of (i) the amount
actually paid by the related seller to Countrywide pursuant to the provisions
of
the purchase agreement under which the seller sold the Mortgage Loan to
Countrywide in connection with the repurchase by such seller of the Mortgage
Loan over (ii) the Purchase Price paid by the Master Servicer for the Mortgage
Loan; provided, however that such excess amount will only be considered Premium
to the extent it was payable by the seller as a result of Countrywide initially
purchasing such Mortgage Loan from the seller for an amount above
par.
Prepayment
Charge: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan within the related Prepayment Charge Period in accordance with
the
terms thereof.
Prepayment
Charge Amount: As to any Distribution Date, the sum of (i) the
Prepayment Charges collected on the Mortgage Loans during the related Prepayment
Period, (ii) any amounts paid pursuant to Section 3.20 with respect to such
Distribution Date and (iii) the aggregate amount of Premium transferred to
the
Certificate Account by the Master Servicer with respect to that Distribution
Date pursuant to Section 3.11(a) in connection with the purchase by the Master
Servicer of any Eligible EPD Protected Mortgage Loans.
Prepayment
Charge Period: With respect to any Mortgage Loan, the period of
time during which a Prepayment Charge may be imposed.
Prepayment
Interest Excess: As to any Principal Prepayment received by the
Master Servicer from the first day through the fifteenth day of any calendar
month (other than the calendar month in which the Initial Cut-off Date occurs),
all amounts paid by the related Mortgagor in respect of interest on such
Principal Prepayment. All Prepayment Interest Excess shall be paid to
the Master Servicer as additional master servicing compensation.
Prepayment
Interest Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received on or after the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, on or after July 1, 2007) and on or before the last day
of
the month preceding the month of such Distribution Date, the amount, if any,
by
which one month’s interest at the related Mortgage Rate, net of the related
Master
39
Servicing
Fee Rate, on such Principal Prepayment exceeds the amount of interest paid
in
connection with such Principal Prepayment.
Prepayment
Period: As to any Distribution Date and the related Due Date, the
period from the 16th day of
the
calendar month immediately preceding the month of such Distribution Date (or,
in
the case of the first Distribution Date, from July 1, 2007) through the 15th day of
the
calendar month in which the Distribution Date occurs.
Primary
Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Prime
Rate: The prime commercial lending rate of The Bank of New York,
as publicly announced to be in effect from time to time. The Prime
Rate shall be adjusted automatically, without notice, on the effective date
of
any change in such prime commercial lending rate. The Prime Rate is
not necessarily The Bank of New York’s lowest rate of interest.
Principal
Distribution Amount: With respect to each Distribution Date, an
amount equal to (1) the sum of: (a) the Principal Remittance Amount for such
Distribution Date, minus the sum of (i) any portion of such amount used to
cover
any payment due to the Certificate Swap Counterparty with respect to such
Distribution Date pursuant to Section 4.10 (other than a Certificate Swap
Termination Payment due to a Swap Counterparty Trigger Event) and (ii) an amount
equal to the lesser of (A) the aggregate Deferred Interest that accrued on
the
Mortgage Loans for the related Due Period and (B) the Principal Prepayment
Amount for the related Prepayment Period and (b) the Extra Principal
Distribution Amount for such Distribution Date, minus (2) the amount of any
Overcollateralization Reduction Amount for such Distribution Date.
Principal
Prepayment: Any payment of principal by a Mortgagor on a Mortgage
Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of
prepayment. Partial Principal Prepayments shall be applied by the
Master Servicer in accordance with the terms of the related Mortgage
Note.
Principal
Prepayment Amount: As to any Distribution Date, an amount equal
to the sum of all voluntary Principal Prepayments received during the related
Prepayment Period and the amount of any Subsequent Recoveries received in the
prior calendar month.
Principal
Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal
Remittance Amount: As to any Distribution Date, (x) the sum,
without duplication, of (a) the principal portion of each Scheduled Payment
(without giving effect to any reductions thereof caused by any Deficient
Valuations) due on each Mortgage Loan (other than a Liquidated Mortgage Loan)
on
the related Due Date, (b) the principal portion of the Purchase Price of each
Mortgage Loan that was repurchased by the applicable Seller or purchased by
the
Master Servicer pursuant to this Agreement as of such Distribution Date, (c)
the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan
received with respect to such Distribution Date, (d) any Insurance Proceeds
or
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans
that
are not yet Liquidated Mortgage Loans received
40
during
the calendar month preceding the month of such Distribution Date, (e) with
respect to each Mortgage Loan that became a Liquidated Mortgage Loan during
the
related Prepayment Period, the amount of the Liquidation Proceeds allocable
to
principal received during such Prepayment Period with respect to such Mortgage
Loan, (f) all Principal Prepayments on the Mortgage Loans received during the
related Prepayment Period, (g) any Subsequent Recoveries on the Mortgage Loans
received during the related Prepayment Period and (h) with respect to the last
Funding Period Distribution Date, the related Remaining Pre-Funded Amount
minus (y) all Advances on the Mortgage Loans relating to principal and
certain expenses reimbursable pursuant to Section 6.03 and reimbursed since
the
immediately preceding Due Date.
Principal
Reserve Fund: Not applicable.
Priority
Amount: Not applicable.
Priority
Percentage: Not applicable.
Private
Certificate: As specified in the Preliminary
Statement.
Proprietary
Lease: With respect to any Cooperative Unit, a lease or occupancy agreement
between a Cooperative Corporation and a holder of related Coop
Shares.
Prospectus: The
prospectus dated July 27, 2007 generally relating to mortgage pass-through
certificates to be sold by the Depositor.
Prospectus
Supplement: The prospectus supplement dated July 27, 2007
relating to the Offered Certificates.
PUD: Planned
Unit Development.
Purchase
Price: With respect to any Mortgage Loan required to be purchased
by the applicable Seller pursuant to Section 2.02 or 2.03 or purchased at
the option of the Master Servicer pursuant to Section 3.11, an amount equal
to the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan
on the date of such purchase, (ii) accrued interest thereon at the
applicable Mortgage Rate (or at the applicable Adjusted Mortgage Rate if
(x) the purchaser is the Master Servicer or (y) if the purchaser is
Countrywide and Countrywide is an affiliate of the Master Servicer) from the
date through which interest was last paid by the Mortgagor to the Due Date
in
the month in which the Purchase Price is to be distributed to Certificateholders
and (iii) costs and damages incurred by the Trust Fund in connection with a
repurchase pursuant to Section 2.03 that arises out of a violation of any
predatory or abusive lending law with respect to the related Mortgage
Loan.
Qualified
Bidder: With respect to any auction pursuant to Section 9.04, any
institution that is a regular purchaser and/or seller in the secondary market
of
residential mortgage loans as determined by the Trustee (or any advisor on
its
behalf), in its sole discretion, and any holder of an interest in the Class
C-P
Certificates; provided, however, that neither Countrywide nor any of its
affiliates shall constitute a Qualified Bidder.
41
Qualified
Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states
to
transact a mortgage guaranty insurance business in such states and to write
the
insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating of
at
least “AA” or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan
must have at least as high a claims paying ability rating as the insurer it
replaces had on the Closing Date.
Rating
Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in
existence, “Rating Agency” shall be such nationally recognized statistical
rating organization, or other comparable Person, identified as a “Rating Agency”
under the Underwriter’s Exemption, as is designated by the Depositor, notice of
which designation shall be given to the Trustee. References in this
Agreement to a given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Adjusted Net Mortgage
Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if
the principal amount due under the related Mortgage Note has been reduced,
the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the
Mortgage Loan as reduced by the Deficient Valuation.
To
the
extent the Master Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of Realized Losses with respect to that Mortgage
Loan
will be reduced by the amount of such Subsequent Recoveries.
Recognition
Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative
Property.
Record
Date: With respect to any Distribution Date and the Delay
Certificates, the last Business Day of the month preceding the month of a
Distribution Date. With respect to any Distribution Date and the
Non-Delay Certificates, the Business Day immediately preceding such Distribution
Date, or if such Certificates are no longer Book-Entry Certificates, the last
Business Day of the month preceding the month of such Distribution
Date.
42
Reference
Bank: As defined in Section 4.08(b).
Refinancing
Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regular
Certificates: As specified in the Preliminary
Statement.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Remaining
Pre-Funded Amount: With respect to the last Funding Period
Distribution Date, any portion of the Pre-Funded Amount remaining in the
Pre-Funding Account.
REMIC: A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC
Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be
in
effect from time to time as well as provisions of applicable state
laws.
REO
Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable
Event: Any event required to be reported on Form 8-K, and in any
event, the following:
(a) entry
into a definitive agreement related to the Trust Fund, the Certificates or
the
Mortgage Loans, or an amendment to a Transaction Document, even if the Depositor
is not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination
of a Transaction Document (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3) of Regulation AB);
(c) with
respect to the Master Servicer only, if the Master Servicer becomes aware of
any
bankruptcy or receivership with respect to Countrywide, the Depositor,
the
43
Master
Servicer, any Subservicer, the Trustee, any enhancement or support provider
contemplated by Items 1114(b) or 1115 of Regulation AB, or any other material
party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with
respect to the Trustee, the Master Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) the
resignation, removal, replacement, substitution of the Master Servicer, any
Subservicer or the Trustee;
(f) with
respect to the Master Servicer only, if the Master Servicer becomes aware that
(i) any material enhancement or support specified in Item 1114(a)(1) through
(3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more Classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result of
all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or Item
1115 of Regulation AB has been added with respect to one or more Classes of
the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(g) with
respect to the Trustee, the Master Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
Reporting
Subcontractor: With respect to the Master Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to Section
11.08(b) to be “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor
shall refer only to the Subcontractor of such Person and shall not refer to
Subcontractors generally.
Request
for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N to this
Agreement, as appropriate.
Required
Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this
Agreement.
Residual
Certificates: As specified in the Preliminary
Statement.
Responsible
Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and
also to whom, with respect to a particular matter, such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
44
Rolling
Sixty-Day Delinquency Rate: With respect to any Distribution Date
on or after the Stepdown Date, the average of the Sixty-Day Delinquency Rates
for such Distribution Date and the two immediately preceding Distribution
Dates.
S&P: Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Surveillance Monitoring, or such other address as S&P may hereafter
furnish to the Depositor and the Master Servicer.
Xxxxxxxx-Xxxxx
Certification: As defined in Section 11.05.
Scheduled
Balances: Not applicable.
Scheduled
Principal Classes: As specified in the Preliminary
Statement.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified in this Agreement, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount
of
the monthly payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
Seller: Countrywide,
Park Granada, Park Monaco or Park Sienna, as applicable.
Senior
Certificates: As specified in the Preliminary
Statement.
Senior
Enhancement Percentage: With respect to a Distribution Date on or
after the Stepdown Date, the fraction (expressed as a percentage) (1) the
numerator of which is the excess of (a) the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due Date occurring in the month preceding the
month of that Distribution Date (after giving effect to Principal Prepayments
in
the Prepayment Period related to that prior Due Date) over (b) (i) before the
Class Certificate Balances of the Senior Certificates and the Class A-1-B Swap
Principal Amount, if any, have been reduced to zero, the sum of (x) the
aggregate Class Certificate Balance of the Senior Certificates and (y) the
Class
A-1-B Swap Principal Amount, if any, in each case, immediately prior to such
Distribution Date, or (ii) after such time, the Class Certificate Balance of
the
most senior Class of Subordinated Certificates outstanding immediately prior
to
such Distribution Date, and (2) the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date occurring in the
month preceding the month of that Distribution Date (after giving effect to
Principal Prepayments in the Prepayment Period related to that prior Due
Date).
Senior
Principal Distribution Target Amount: As to any Distribution
Date, the excess of (1) the sum of (i) the aggregate Class Certificate Balance
of the Senior Certificates and (ii) the Class A-1-B Swap Principal Amount,
if
any, in each case, immediately prior to such Distribution Date, over (2) the
lesser of (A) the product of (i) (x) 83.125% on any Distribution Date on or
after the Stepdown Date and prior to the Distribution Date in August 2013 or
(y)
86.500% on any Distribution Date on or after the Stepdown Date and on or after
the Distribution Date in August
45
2013
and
(ii) of the aggregate Stated Principal Balance of the Mortgage Loans as of
the
Due Date in the month of that Distribution Date (after giving effect to
Principal Prepayments received in the related Prepayment Period) and (B) the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) minus the OC
Floor.
Servicing
Advances: All customary, reasonable and necessary “out of pocket”
costs and expenses incurred in the performance by the Master Servicer of
its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB.
Servicing
Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Shift
Percentage: Not applicable.
Sixty-Day
Delinquency Rate: With respect to any Distribution Date on or
after the Stepdown Date, a fraction, expressed as a percentage, the numerator
of
which is the aggregate Stated Principal Balance of all Mortgage Loans 60 or
more
days delinquent as of the close of business on the last day of the calendar
month preceding such Distribution Date (including Mortgage Loans in foreclosure,
bankruptcy and REO Properties) and the denominator of which is the aggregate
Stated Principal Balance for such Distribution Date of the Mortgage Loans as
of
the related Due Date (after giving effect to Principal Prepayments, the
principal portion of any Liquidation Proceeds and any Subsequent Recoveries
received in the related Prepayment Period).
Startup
Day: The Closing Date.
Stated
Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any moratorium or similar waiver
or
grace period), plus any Deferred Interest added to the principal balance of
that
Mortgage Loan pursuant to the terms of the related Mortgage Note on or prior
to
that Due Date, minus the sum of: (i) any previous partial Principal Prepayments
and the payment of principal due on such Due Date, irrespective of any
delinquency in payment by the related Mortgagor, (ii) Liquidation Proceeds
allocable to principal (other than with respect to any Liquidated Mortgage
Loan)
received in the prior calendar month; (iii) Principal Prepayments received
through the last day of the related Prepayment Period, in each case, with
respect to that Mortgage Loan and (iv) any Realized Loss previously incurred
in
connection with a Deficient Valuation. The Stated Principal Balance
of any Mortgage Loan that becomes a Liquidated
46
Mortgage
Loan will be zero on each date following the Due Period in which such Mortgage
Loan becomes a Liquidated Mortgage Loan.
Stepdown
Date: The
earlier to occur of: (1) the Distribution Date immediately following the
Distribution Date on which the sum of the aggregate Class Certificate Balance
of
the Senior Certificates and the Class A-1-B Swap Principal Amount, if any,
are
reduced to zero, and (2) the later of (x) the Distribution Date in August 2010
and (y) the first Distribution Date on which the sum of (i) the aggregate Class
Certificate Balance of the Senior Certificates and (ii) the Class A-1-B Swap
Principal Amount, if any (in each case, after calculating anticipated
distributions on such Distribution Date) is less than or equal to the product
of
(x) the aggregate Stated Principal Balance of the Mortgage Loans as of the
Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments in the related Prepayment Period) and (y) either (i) prior to the
Distribution Date in August 2013, 83.125% or (ii) on or after the Distribution
Date in August 2013, 86.500%.
Stepdown
Target Subordination Percentage: With respect to any Class of
Subordinated Certificates, the respective percentage indicated in the following
table:
|
Stepdown
Target
Subordination
Percentage
(1)
|
Stepdown
Target
Subordination
Percentage
(2)
|
|||
|
Class
M-1
|
12.625%
|
10.100%
|
||
|
Class
M-2
|
9.875%
|
7.900%
|
||
|
Class
M-3
|
8.625%
|
6.900%
|
||
|
Class
M-4
|
7.375%
|
5.900%
|
||
|
Class
M-5
|
6.125%
|
4.900%
|
||
|
Class
M-6
|
4.625%
|
3.700%
|
||
|
Class
M-7
|
3.250%
|
2.600%
|
_________
(1) For
any Distribution Date occurring on or after the Distribution Date occurring
in
August 2010 and prior to theDistribution Date occurring in August
2013.
(2) For
any Distribution Date occurring on or after the Distribution Date occurring
in
August 2013.
Streamlined
Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to Countrywide’s Streamlined Loan Documentation Program then in
effect. For the purposes of this Agreement, a Mortgagor is eligible
for a mortgage pursuant to Countrywide’s Streamlined Loan Documentation Program
if that Mortgagor is refinancing an existing mortgage loan that was originated
or acquired by Countrywide where, among other things, the mortgage loan has
not
been more than 30 days delinquent in payment during the previous twelve month
period.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
the Mortgage Loans under the direction or authority of the Master Servicer
or a
Subservicer or the Trustee, as the case may be.
Subordinated
Certificates: As specified in the Preliminary
Statement.
47
Subordinated
Class Principal Distribution Target Amount: With respect to any
Distribution Date and any Class of Subordinated Certificates, the excess of
(1) the sum of (a) the sum of (i) the aggregate Class Certificate
Balance of the Senior Certificates and (ii) the Class A-1-B Swap Principal
Amount, if any, (in each case, after taking into account the distribution of
the
Senior Principal Distribution Target Amount for such Distribution Date),
(b) the aggregate Class Certificate Balance of any Class(es) of
Subordinated Certificates that are senior to the subject Class (in each case,
after taking into account distribution of the Subordinated Class Principal
Distribution Target Amount(s) for such more senior Class(es) of Certificates
for
such Distribution Date), and (c) the Class Certificate Balance of the
subject Class of Subordinated Certificates immediately prior to such
Distribution Date over (2) the lesser of (a) the product of
(x) 100% minus the Stepdown Target Subordination Percentage for the subject
Class of Certificates and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (b) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date minus the
OC
Floor; provided, however, that if such Class of Subordinated Certificates is
the
only Class of Subordinated Certificates outstanding on such Distribution Date,
that Class will be entitled to receive the entire remaining Principal
Distribution Amount until its Class Certificate Balance is reduced to
zero.
Subsequent
Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Master Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.08) specifically
related to such Liquidated Mortgage Loan after the classification of such
Mortgage Loan as a Liquidated Mortgage Loan.
Subservicer: Any
person to whom the Master Servicer has contracted for the servicing of all
or a
portion of the Mortgage Loans pursuant to Section 3.02.
Subsidiary
REMIC: As defined in the Preliminary Statement.
Substitute
Mortgage Loan: A Mortgage Loan substituted by the applicable
Seller for a Deleted Mortgage Loan which must, on the date of such substitution,
as confirmed in a Request for Release, substantially in the form of
Exhibit M, (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution,
not
in excess of, and not more than 10% less than the Stated Principal Balance
of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower
than and not more than 1% per annum higher than that of the Deleted Mortgage
Loan; (iii) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan; (iv) have a remaining term to maturity no greater than (and
not more than one year less than that of) the Deleted Mortgage Loan; (v) have
a
Maximum Mortgage Rate no lower than and not more than 1% per annum higher than
the Maximum Mortgage Rate of the Deleted Mortgage Loan; (vi) have a Minimum
Mortgage Rate no lower than and not more than 1% per annum higher than the
Minimum Mortgage Rate of the Deleted Mortgage Loan; (vii) have the same Mortgage
Index, reset period, payment cap and recast provisions as the Deleted Mortgage
Loan and a Gross Margin not more than 1% per annum higher or lower than that
of
the Deleted Mortgage Loan; (viii) not be a Cooperative Loan unless the
Deleted Mortgage Loan was a Cooperative Loan; and (ix) comply with each
representation and warranty set forth in Section 2.03.
48
Substitution
Adjustment Amount: The meaning ascribed to such term pursuant to
Section 2.03.
Successful
Auction: An auction held pursuant to Section 9.04 at which at
least three Qualified Bidders submitted bids and at least one of those bids
was
an Acceptable Bid Amount.
Supplemental
Cut-off Date: With respect to any Supplemental Mortgage Loan, the
later of (i) the date of origination of such Mortgage Loan and (ii) the first
day of the month in which the related Supplemental Transfer Date
occurs.
Supplemental
Mortgage Loan: Any Mortgage Loan other than an Initial Mortgage
Loan conveyed to the Trust Fund pursuant to Section 2.01 of this Agreement
and
to a Supplemental Transfer Agreement, which Mortgage Loan shall be listed on
the
revised Mortgage Loan Schedule delivered pursuant to this Agreement and on
Schedule A to such Supplemental Transfer Agreement. When used with
respect to a single Supplemental Transfer Date, Supplemental Mortgage Loan
shall
mean a Supplemental Mortgage Loan conveyed to the Trust Fund on that
Supplemental Transfer Date.
Supplemental
Transfer Agreement: A Supplemental Transfer Agreement
substantially in the form of Exhibit P hereto, executed and delivered by the
related Seller or Sellers, the Master Servicer, the Depositor and the Trustee
as
provided in Section 2.01 hereof.
Supplemental
Transfer Date: For any Supplemental Transfer Agreement, the date
the related Supplemental Mortgage Loans are transferred to the Trust Fund
pursuant to the related Supplemental Transfer Agreement.
Swap
Account: The Class A-1-B Swap Account or Certificate Swap
Account, as applicable.
Swap
Contract: The Class A-1-B Swap Contract or Certificate Swap
Contract, as applicable.
Swap
Contract Administration Agreement: The swap contract
administration agreement dated as of the Closing Date among Countrywide, the
Trustee and the Swap Contract Administrator.
Swap
Contract Administrator: The Bank of New York, in its capacity as
swap contract administrator under the Swap Contract Administration Agreement,
and its successors and assigns.
Swap
Contract Assignment Agreement: The Class A-1-B Swap Contract
Assignment Agreement or Certificate Swap Contract Assignment Agreement, as
applicable.
Swap
Contracts: Collectively, the Class A-1-B Swap Contract and
Certificate Swap Contract.
Swap
Contract Termination Date: The Class A-1-B Swap Contract
Termination Date or the Certificate Swap Contract Termination Date, as
applicable.
49
Swap
Counterparty: The Class A-1-B Swap Counterparty or the
Certificate Swap Counterparty, as applicable.
Swap
Counterparty Trigger Event: Either (i) an “Event of Default”
under the related ISDA Master Agreement with respect to which the related
Swap
Counterparty is the sole “Defaulting Party” (as defined in the related ISDA
Master Agreement) or (ii) a “Termination Event” (other than an Illegality or a
Tax Event (as such terms are defined in the related ISDA Master Agreement))
or
“Additional Termination Event” under the related ISDA Master Agreement with
respect to which the related Swap Counterparty is the sole “Affected Party” (as
defined in the related ISDA Master Agreement).
Swap
Termination Payment: A Certificate Swap Termination Payment or
Class A-1-B Swap Termination Payment, as applicable.
Swap
Trust: The trust fund established by Section 4.10.
Swap
Trustee: The Bank of New York, a New York banking corporation,
not in its individual capacity, but solely in its capacity as trustee for the
benefit of the Holders of the Senior Certificates (other than the Class A-R
Certificates) and the Subordinated Certificates under this Agreement, and any
successor thereto, and any corporation or national banking association resulting
from or surviving any consolidation or merger to which it or its successors
may
be a party and any successor trustee as may from time to time be serving as
successor trustee hereunder.
Tax
Matters Person: The person designated as “tax matters person” in
the manner provided under Treasury regulation § 1.860F-4(d) and Treasury
regulation § 301.6231(a)(7)-1. Initially, the Tax Matters Person
shall be the Trustee.
Tax
Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Termination
Price: As defined in Section 9.01.
Terminator: As
defined in Section 9.01.
Transaction
Documents: This Agreement, the Swap Contracts, the Swap Contract
Assignment Agreements, the Swap Contract Administration Agreement and any other
document or agreement entered into in connection with the Trust Fund, the
Certificates or the Mortgage Loans.
Transfer: Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Trigger
Event: With respect to a Distribution Date on or after the
Stepdown Date, either a Delinquency Trigger Event or a Cumulative Loss Trigger
Event is in effect with respect to that Distribution Date.
Trust
Fund: The corpus of the trust created under this Agreement
consisting of (i) the Mortgage Loans and all interest and principal
received on or with respect thereto after the
50
Cut-off
Date to the extent not applied in computing the Cut-off Date Principal Balance
of the Mortgage Loans; (ii) the Certificate Account, the Distribution
Account, the Pre-Funding Account, the Capitalized Interest Account and the
Carryover Reserve Fund and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a
Mortgage Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure
or otherwise; and (iv) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing.
Trustee: The
Bank of New York and its successors and, if a successor trustee is appointed
under this Agreement, such successor.
Trustee
Advance Rate: With respect to any Advance made by the Trustee pursuant to
Section 4.01(b), a per annum rate of interest determined as of the date of
such
Advance equal to the Prime Rate in effect on such date plus 5.00%.
Trustee
Fee: As to any Distribution Date, an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the sum of (i) the Pool Stated Principal Balance
and (ii) any amounts remaining in the Pre-Funding Account (excluding investment
earnings thereon) with respect to such Distribution Date.
Trustee
Fee Rate: With respect to each Mortgage Loan, 0.009% per
annum.
Underwriter:
As specified in the Preliminary Statement.
Underwriter’s
Exemption: Prohibited Transaction Exemption 2007-5, 72 Fed. Reg.
13130 (2007), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
Unpaid
Realized Loss Amount: For any Class of Certificates (other than
the Class C-P Certificates) or the Class A-1-B Swap Principal Amount, as
applicable, (x) the portion of the aggregate Applied Realized Loss Amount
previously allocated to that Class or the Class A-1-B Swap Principal Amount,
as
applicable, remaining unpaid from prior Distribution Dates minus (y) any
increase in the Class Certificate Balance of that Class or the Class A-1-B
Swap
Principal Amount, as applicable, due to the receipt of Subsequent Recoveries
allocated to the Class Certificate Balance of that Class or the Class A-1-B
Swap
Principal Amount, as applicable, pursuant to Section 4.02(i).
Voting
Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class
of Notional Amount Certificates, if any (such Voting Rights to be allocated
among the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), (b) 1% of all Voting Rights shall be allocated
to each of the Class A-R and Class C-P Certificates, and (c) the remaining
Voting Rights shall be allocated among Holders of the remaining Classes of
Certificates in proportion to the Certificate Balances of their respective
Certificates on such date.
Weighted
Average Adjusted Net Mortgage Rate: As to any Distribution Date,
the weighted average of the Adjusted Net Mortgage Rates on the Mortgage Loans,
weighted on the
51
basis
of
the Stated Principal Balance of each such Mortgage Loan as of the Due Date
occurring in the calendar month preceding the month of that Distribution Date
(after giving effect to Principal Prepayments received in the Prepayment Period
related to that prior Due Date).
Winning
Bidder: With respect to a Successful Auction, the Qualified
Bidder that bids the highest price.
|
|
SECTION
1.02.
|
Certain
Interpretive Principles.
|
All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate, agreement or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all
such certificates and other documents, unless the context otherwise requires:
(a) accounting terms not otherwise defined in this Agreement, and accounting
terms partly defined in this Agreement to the extent not defined, shall have
the
respective meanings given to them under generally accepted accounting
principles; (b) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate, agreement or other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term “including” means “including without limitation”; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references
to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person’s permitted successors and assigns;
and (h) a Mortgage Loan is “30 days delinquent” if any Scheduled Payment has not
been received by the close of business on the day immediately preceding the
Due
Date on which the next Scheduled Payment is due. Similarly for “60
days delinquent,” “90 days delinquent” and so on. Unless otherwise
provided in this Agreement, the determination as to whether a Mortgage Loan
falls into a delinquency category shall be made as of the close of business
on
the last day of each month prior to the date of determining the
delinquency.
52
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
|
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
(a) Each
Seller, concurrently with the execution and delivery of this Agreement, hereby
sells, transfers, assigns, sets over and otherwise conveys to the Depositor,
without recourse, all its respective right, title and interest in and to the
related Initial Mortgage Loans, including all interest and principal received
or
receivable by such Seller, on or with respect to the applicable Initial Mortgage
Loans after the Initial Cut-off Date and all interest and principal payments
on
the related Initial Mortgage Loans received prior to the Initial Cut-off Date
in
respect of installments of interest and principal due thereafter, but not
including payments of principal and interest due and payable on such Initial
Mortgage Loans, on or before the Initial Cut-off Date. On or prior to
the Closing Date, Countrywide shall deliver to the Depositor or, at the
Depositor’s direction, to the Trustee or other designee of the Depositor, the
Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of the Delay Delivery Mortgage Loans (which may
include Countrywide Mortgage Loans, Park Granada Mortgage Loans, Park Monaco
Mortgage Loans or Park Sienna Mortgage Loans), such delivery may take place
within thirty (30) days following the Closing Date or twenty (20) days following
the applicable Supplemental Transfer Date, as applicable). Such
delivery of the Mortgage Files shall be made against payment by the Depositor
of
the purchase price, previously agreed to by the Sellers and Depositor, for
the
Mortgage Loans. With respect to any Initial Mortgage Loan that does
not have a first payment date on or before the Due Date in the month of the
first Distribution Date or any Supplemental Mortgage Loan that does not have
a
first payment date on or before the Due Date in the month after the related
Supplemental Transfer Date, Countrywide shall deposit into the Distribution
Account on or before the Distribution Account Deposit Date relating to the
first
applicable Distribution Date, an amount equal to one month’s interest at the
related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of such
Mortgage Loan.
Countrywide
further agrees (x) to cause The Bank of New York to enter into the Swap Contract
Administration Agreement as Swap Contract Administrator and (y) to assign all
of
its right, title and interest in and to the Swap Contracts to, and to cause
all
of its obligations in respect of each such transaction to be assumed by, the
Swap Contract Administrator on the terms and conditions set forth in the related
Swap Contract Assignment Agreement.
(b) Immediately
upon the conveyance of the Initial Mortgage Loans referred to in
clause (a), the Depositor sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the Depositor in and
to
the Trust Fund together with the Depositor’s right to require each Seller to
cure any breach of a representation or warranty made in this Agreement by such
Seller or to repurchase or substitute for any affected Mortgage Loan in
accordance herewith.
(c) In
connection with the transfer and assignment set forth in clause (b) above,
the
Depositor has delivered or caused to be delivered to the Trustee (or, in the
case of the Delay Delivery Mortgage Loans that are Initial Mortgage Loans,
will
deliver or cause to be delivered to the Trustee within thirty (30) days
following the Closing Date and in the case of the Delay
53
Delivery
Mortgage Loans that are Supplemental Mortgage Loans, will
deliver or cause to be delivered
to the Trustee within twenty (20) days following the applicable Supplemental
Transfer Date) for the benefit of the Certificateholders the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) (A) the
original Mortgage Note endorsed by manual or facsimile signature in blank in
the
following form: “Pay to the order of ____________ without recourse,” with all
intervening endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such endorsement
being sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
or
(B) with
respect to any Lost
Mortgage Note, a lost note affidavit from Countrywide stating that the original
Mortgage Note was lost or destroyed, together with a copy of such Mortgage
Note;
(ii) except
as provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the original recorded Mortgage or a copy of such Mortgage, with recording
information, (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of each
MERS Mortgage Loan, the original Mortgage or a copy of such mortgage, with
recording information, noting the presence of the MIN of the Mortgage Loans
and
either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) in
the case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage or a copy of such assignment, with recording
information, (which may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded assignments of
such mortgage or a copy of such assignment, with recording information, (each
such assignment, when duly and validly completed, to be in recordable form
and
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public recording
office, such assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such assignment of
Mortgage need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
54
(v) except
as provided below, the original or a copy of lender’s title policy or a printout
of the electronic equivalent and all riders thereto; and
(vi) in
the case of a Cooperative Loan, the originals of the following documents or
instruments:
(A) The
Coop Shares, together with a stock power in blank;
(B) The
executed Security Agreement;
(C) The
executed Proprietary Lease;
(D) The
executed Recognition Agreement;
(E) The
executed UCC-1 financing statement with evidence of recording thereon which
have
been filed in all places required to perfect the applicable Seller’s interest in
the Coop Shares and the Proprietary Lease; and
(F) The
executed UCC-3 financing statements or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
In
addition, in connection with the assignment of any MERS Mortgage Loan, each
Seller agrees that it will cause, at the Trustee’s expense, the MERS® System to
indicate that the Mortgage Loans sold by such Seller to the Depositor have
been
assigned by that Seller to the Trustee in accordance with this Agreement (and
any Supplemental Transfer Agreement, as applicable) for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS® System to identify the series of the
Certificates issued in connection with such Mortgage Loans. Each
Seller further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by such
Seller to the Depositor during the term of this Agreement unless and until
such
Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage or a copy of
such Mortgage, with recording information, (b) all interim recorded assignments
or a copy of such assignments, with recording information, or (c) the lender’s
title policy or a copy of the lender’s title policy (together with all riders
thereto) satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above,
the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or
(iii) above, such original Mortgage or a copy of such Mortgage, with recording
information, or such interim
55
assignment
or a copy of such assignments, with recording information, as the case may
be,
with evidence of recording indicated thereon upon receipt thereof from the
public recording office, or a copy thereof, certified, if appropriate, by the
relevant recording office, but in no event shall any such delivery of the
original Mortgage and each such interim assignment or a copy thereof, certified,
if appropriate, by the relevant recording office, be made later than one year
following the Closing Date, or, in the case of clause (v) above, no later than
120 days following the Closing Date; provided, however, in the
event the Depositor is unable to deliver by such date each Mortgage and each
such interim assignment by reason of the fact that any such documents have
not
been returned by the appropriate recording office, or, in the case of each
such
interim assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver such documents to
the
Trustee as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or
cause to be forwarded to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (b)
any other documents required to be delivered by the Depositor or the Master
Servicer to the Trustee. In the event that the original Mortgage is
not delivered and in connection with the payment in full of the related Mortgage
Loan and the public recording office requires the presentation of a “lost
instruments affidavit and indemnity” or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Master Servicer shall execute and deliver or cause to be
executed and delivered such a document to the public recording
office. In the case where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, Countrywide shall deliver to the
Trustee a copy of such Mortgage certified by such public recording office to
be
a true and complete copy of the original recorded Mortgage.
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within one hundred twenty (120) days thereafter, the Trustee shall (A)
as
the assignee thereof, affix the following language to each assignment of
Mortgage: “CWALT, Inc., Series 2007-OH3, The Bank of New York, as
trustee”, (B) cause such assignment to be in proper form for recording in the
appropriate public office for real property records and (C) cause to be
delivered for recording in the appropriate public office for real property
records the assignments of the Mortgages to the Trustee, except that (i) with
respect to any assignments of Mortgage as to which the Trustee has not received
the information required to prepare such assignment in recordable form, the
Trustee’s obligation to do so and to deliver the same for such recording shall
be as soon as practicable after receipt of such information and in any event
within thirty (30) days after receipt thereof and (ii) the Trustee need not
cause to be recorded any assignment which relates to a Mortgage Loan the
Mortgaged Property and Mortgage File relating to which are located in any
jurisdiction (including Puerto Rico) under the laws of which the recordation
of
such assignment is not necessary to protect the Trustee’s and the
Certificateholders’ interest in the related Mortgage Loan as evidenced by an
opinion of counsel delivered by Countrywide to the Trustee within 90 days of
the
Closing Date (which opinion may be in the form of a “survey” opinion and is not
required to be delivered by counsel admitted to practice law in the jurisdiction
as to which such legal opinion applies).
In
the
case of Mortgage Loans that have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate
56
Account
the portion of such payment that is required to be deposited in the Certificate
Account pursuant to Section 3.05.
Notwithstanding
anything to the contrary in this Agreement, within thirty (30) days after the
Closing Date with respect to the Initial Mortgage Loans, Countrywide (on its
own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall either
(i) deliver to the Depositor, or at the Depositor’s direction, to the
Trustee or other designee of the Depositor the Mortgage File as required
pursuant to this Section 2.01 for each Delay Delivery Mortgage Loan or
(ii) either (A) substitute a Substitute Mortgage Loan for the Delay
Delivery Mortgage Loan or (B) repurchase the Delay Delivery Mortgage Loan,
which substitution or repurchase shall be accomplished in the manner and subject
to the conditions set forth in Section 2.03 (treating each Delay Delivery
Mortgage Loan as a Deleted Mortgage Loan for purposes of such
Section 2.03); provided, however, that if Countrywide fails to
deliver a Mortgage File for any Delay Delivery Mortgage Loan within the thirty
(30) day period provided in the prior sentence, Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) shall use its best
reasonable efforts to effect a substitution, rather than a repurchase of, such
Deleted Mortgage Loan and provided further that the cure period provided for
in
Section 2.02 or in Section 2.03 shall not apply to the initial
delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but rather
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) shall have five (5) Business Days to cure such failure to deliver.
At the end of such thirty (30) day period the Trustee shall send a Delay
Delivery Certification for the Delay Delivery Mortgage Loans delivered during
such thirty (30) day period in accordance with the provisions of
Section 2.02.
(d) Subject
to the execution and delivery of the related Supplemental Transfer Agreement
as
provided in Section 2.01(e) of this Agreement and the terms and conditions
of
this Agreement, each Seller sells, transfers, assigns, sets over and otherwise
conveys to the Depositor, without recourse, on each Supplemental Transfer Date,
with respect to each Supplemental Mortgage Loan sold by such Seller to the
Depositor, all the right, title and interest of that Seller in and to the
Supplemental Mortgage Loans sold by it identified in such Supplemental Transfer
Agreement, including all interest and principal received and receivable by
such
Seller on or with respect to the related Supplemental Mortgage Loans on and
after the related Supplemental Cut-off Date (to the extent not applied in
computing the Cut-off Date Principal Balance thereof) or deposited into the
Certificate Account by the related Seller, other than principal and interest
due
on such Supplemental Mortgage Loans prior to the related Supplemental Cut-off
Date.
Immediately
upon the conveyance of the Supplemental Mortgage Loans referred to in the
preceding paragraph, the Depositor sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for benefit of the Certificateholders, without
recourse, all right title and interest in all of the Supplemental Mortgage
Loans.
Each
Seller has entered into this Agreement in consideration for the purchase of
the
Mortgage Loans sold by such Seller to the Depositor and has agreed to take
the
actions specified herein. The Depositor, concurrently with the
execution and delivery of this Agreement, hereby sells, transfers, assigns
and
otherwise conveys to the Trustee for the use and benefit of the
57
Certificateholders,
without recourse, all right title and interest in the portion of the Trust
Fund
not otherwise conveyed to the Trust Fund pursuant to Sections 2.01(a) or
(b).
(e) Upon
five (5) Business Days written notice to the Trustee, the Depositor, the Master
Servicer (if the Master Servicer is not a Seller) and the Rating Agencies,
on
any other Business Day during the Funding Period designated by Countrywide,
Park
Granada, Park Monaco and Park Sienna, if applicable, the Depositor and the
Trustee shall complete, execute and deliver a Supplemental Transfer Agreement
so
long as no Rating Agency has provided notice that the execution and delivery
of
such Supplemental Transfer Agreement will result in a reduction or withdrawal
of
the any ratings assigned to the Certificates. After the execution and
delivery of such Supplemental Transfer Agreement, on the Supplemental Transfer
Date, the Trustee shall set aside in the Pre-Funding Account an amount equal
to
the Aggregate Supplemental Purchase Amount.
The
transfer of Supplemental Mortgage Loans and the other property and rights
relating to them on a Supplemental Transfer Date is subject to the satisfaction
of each of the following conditions:
(i) each
Supplemental Mortgage Loan conveyed on such Supplemental Transfer Date satisfies
the representations and warranties applicable to it under this Agreement;
provided, however, that with respect to a breach of a representation and
warranty with respect to a Supplemental Mortgage Loan, the obligation under
Section 2.03(c) of this Agreement of Countrywide, Park Granada, Park Monaco
and
Park Sienna, if applicable, to cure, repurchase or replace such Supplemental
Mortgage Loan shall constitute the sole remedy against such Seller respecting
such breach available to Certificateholders, the Depositor or the
Trustee;
(ii) the
Trustee, the Underwriter and the Rating Agencies are provided with an Opinion
of
Counsel or Opinions of Counsel with respect to the tax treatment of the Trust
Fund, to be delivered as provided pursuant to Section 2.01(f);
(iii) the
Rating Agencies and the Underwriter are provided with an Opinion of Counsel
or
Opinions of Counsel with respect to the validity of the conveyance of the
Supplemental Mortgage Loans conveyed on such Supplemental Transfer Date, to
be
delivered as provided pursuant to Section 2.01(f);
(iv) the
execution and delivery of such Supplemental Transfer Agreement or conveyance
of
the related Supplemental Mortgage Loans does not result in a reduction or
withdrawal of any ratings assigned to the Certificates by the Rating
Agencies;
(v) the
Supplemental Mortgage Loans conveyed on such Supplemental Transfer Date were
selected in a manner reasonably believed not to be adverse to the interests
of
the Certificateholders;
(vi) no
Supplemental Mortgage Loan conveyed on such Supplemental Transfer date was
30 or
more days delinquent;
58
(vii) following
the conveyance of the Supplemental Mortgage Loans on such Supplemental Transfer
Date to the Trust Fund, the characteristics of the Mortgage Loans will comply
with the Pool Characteristics (including the permitted variances listed
therein); provided, that for the purpose of making these calculations, the
characteristics for any Initial Mortgage Loan made will be taken as of the
Initial Cut-off Date and the characteristics for any Supplemental Mortgage
Loan
will be taken as of the related Supplemental Cut-off Date;
(ix) none
of the Sellers or the Depositor shall be insolvent or shall be rendered
insolvent as a result of such transfer; and
(x) the
Depositor shall have delivered to the Trustee an Officer’s Certificate
confirming the satisfaction of each of these conditions precedent.
The
Trustee shall not be required to investigate or otherwise verify compliance
with
these conditions, except for its own receipt of documents specified above,
and
shall be entitled to rely on the required Officer’s Certificate.
(f) Within
seven Business Days after each Supplemental Transfer Date, upon (1) delivery
to
the Trustee by the Depositor or Countrywide of the Opinions of Counsel referred
to in Sections 2.01(e)(ii) and (iii), (2) delivery to the Trustee by Countrywide
of a revised Mortgage Loan Schedule reflecting the Supplemental Mortgage Loans
conveyed on such Supplemental Transfer Date and (3) delivery to the Trustee
by
the Depositor of an Officer’s Certificate confirming the satisfaction of each of
the conditions precedent set forth in this Section 2.01(f), the Trustee shall
pay to each Seller the Aggregate Supplemental Transfer Amount used to purchase
Supplemental Mortgage Loans from such Seller from those funds that were set
aside in the Pre-Funding Account pursuant to Section 2.01(e). The
positive difference, if any, between the Aggregate Supplemental Transfer Amount
and the Aggregate Supplemental Purchase Amount shall be reinvested by the
Trustee in the Pre-Funding Account.
(g) The
Trustee shall not be required to investigate or otherwise verify compliance
with
the conditions set forth in the preceding paragraph, except for its own receipt
of documents specified above, and shall be entitled to rely on the required
Officer’s Certificate.
Within
thirty days after the final Supplemental Transfer Date, the Depositor shall
deliver to the Trustee a letter of a nationally recognized firm of independent
public accountants stating whether or not the Supplemental Mortgage Loans
conveyed on such Supplemental Transfer Date conform to the characteristics
in
Section 2.01(e)(vi), (vii) and (viii).
(h) Neither
the Depositor nor the Trust will acquire or hold any Mortgage Loan that would
violate the representations made by Countrywide set forth in clauses (50) or
(51) of Schedule III-A hereto.
|
|
SECTION
2.02.
|
Acceptance
by Trustee of the Mortgage
Loans.
|
(a) The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit F-1 and declares that
it holds and will hold such documents and the other documents delivered to
it
constituting the Mortgage Files, and that it holds or will hold such other
assets as are included in the Trust Fund, in trust for the
exclusive
59
use
and
benefit of all present and future Certificateholders. The Trustee
acknowledges that it will maintain possession of the Mortgage Notes in the
State
of California, unless otherwise permitted by the Rating Agencies.
The
Trustee agrees to execute and deliver on the Closing Date to the Depositor,
the
Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) an Initial Certification in the form
annexed to this Agreement as Exhibit F-1. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Trustee acknowledges that such documents appear regular
on
their face and relate to such Initial Mortgage Loans. The Trustee
shall be under no duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the
same
are genuine, enforceable or appropriate for the represented purpose or that
they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On
or
about the thirtieth (30th) day after
the
Closing Date, the Trustee shall deliver to the Depositor, the Master Servicer
and Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and Park Sienna) a Delay Delivery Certification with respect to the Initial
Mortgage Loans in the form annexed hereto as Exhibit G-1, with any
applicable exceptions noted thereon.
Not
later
than 90 days after the Closing Date, the Trustee shall deliver to the Depositor,
the Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) a Final Certification with respect to
the
Initial Mortgage Loans in the form annexed hereto as Exhibit H-1, with any
applicable exceptions noted thereon.
If,
in
the course of such review, the Trustee finds any document constituting a part
of
a Mortgage File that does not meet the requirements of Section 2.01, the
Trustee shall list such as an exception in the Final Certification;
provided, however that the Trustee shall not make any
determination as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or is sufficient to effect the assignment of and transfer to
the
assignee thereof under the mortgage to which the assignment
relates. Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall promptly correct or cure such defect
within 90 days from the date it was so notified of such defect and, if
Countrywide does not correct or cure such defect within such period, Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
shall either (a) substitute for the related Mortgage Loan a Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase
such Mortgage Loan from the Trustee within 90 days from the date Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
was
notified of such defect in writing at the Purchase Price of such Mortgage Loan;
provided, however, that in no event shall such substitution or
purchase occur more than 540 days from the Closing Date, except that if the
substitution or purchase of a Mortgage Loan pursuant to this provision is
required by reason of a delay in delivery of any documents by the appropriate
recording office, and there is a dispute between either the Master Servicer
or
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) and the Trustee over the location or
60
status
of
the recorded document, then such substitution or purchase shall occur within
720
days from the Closing Date. The Trustee shall deliver written notice
to each Rating Agency within 270 days from the Closing Date indicating each
Mortgage Loan (a) that has not been returned by the appropriate recording
office or (b) as to which there is a dispute as to location or status of
such Mortgage Loan. Such notice shall be delivered every 90 days
thereafter until the related Mortgage Loan is returned to the
Trustee. Any such substitution pursuant to (a) above or purchase
pursuant to (b) above shall not be effected prior to the delivery to the
Trustee of the Opinion of Counsel required by Section 2.05, if any, and any
substitution pursuant to (a) above shall not be effected prior to the additional
delivery to the Trustee of a Request for Release substantially in the form
of
Exhibit N. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. The
Purchase Price for any such Mortgage Loan shall be deposited by Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
in
the Certificate Account on or prior to the Distribution Account Deposit Date
for
the Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form
of
Exhibit N hereto, the Trustee shall release the related Mortgage File to
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) and shall execute and deliver at Countrywide’s (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) request such
instruments of transfer or assignment prepared by Countrywide, in each case
without recourse, as shall be necessary to vest in Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna), or its
designee, the Trustee’s interest in any Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna) repurchases an Initial
Mortgage Loan that is a MERS Mortgage Loan, the Master Servicer shall either
(i)
cause MERS to execute and deliver an assignment of the Mortgage in recordable
form to transfer the Mortgage from MERS to Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna) or its designee and shall
cause such Mortgage to be removed from registration on the MERS® System in
accordance with MERS’ rules and regulations or (ii) cause MERS to designate on
the MERS® System Countrywide (on its own behalf and on behalf of Park Granada,
Park Monaco and Park Sienna) or its designee as the beneficial holder of such
Mortgage Loan.
(b) Upon
delivery of the Supplemental Mortgage Loans pursuant to a Supplemental Transfer
Agreement, the Trustee shall acknowledge receipt of the documents identified
in
any Supplemental Certification in the form annexed hereto as Exhibit F-2 and
declare that it will hold such documents and the other documents delivered
to it
constituting the Mortgage Files, and that it will hold such other assets as
are
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders. The Trustee acknowledges that
it will maintain possession of the Mortgage Notes in the State of California,
unless otherwise permitted by the Rating Agencies.
The
Trustee agrees to execute and deliver on the Supplemental Transfer Date to
the
Depositor, the Master Servicer and Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) a Supplemental Certification
in
the form annexed hereto as Exhibit F-2. Based on its review and
examination, and only as to the documents identified in such Supplemental
Certification, the Trustee shall acknowledge that such documents appear regular
on their face and relate to such Supplemental Mortgage
Loan. The
61
Trustee
shall be under no duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the
same
are genuine, enforceable or appropriate for the represented purpose or that
they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On
or
about the twentieth (20th) day after the Supplemental Transfer Date, the Trustee
shall deliver to the Depositor, the Master Servicer and Countrywide (on its
own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a Delay
Delivery Certification with respect to the Supplemental Mortgage Loans in the
form annexed hereto as Exhibit G-2, with any applicable exceptions noted
thereon.
Not
later
than 90 days after the final Supplemental Transfer Date, the Trustee shall
deliver to the Depositor, the Master Servicer and Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) a Final
Certification with respect to the Supplemental Mortgage Loans in the form
annexed hereto as Exhibit H-2, with any applicable exceptions noted
thereon.
(c) If,
in the course of such review of the Mortgage Files relating to the Supplemental
Mortgage Loans, the Trustee finds any document constituting a part of a Mortgage
File which does not meet the requirements of Section 2.01, the Trustee shall
list such as an exception in the Final Certification; provided, however that
the
Trustee shall not make any determination as to whether (i) any endorsement
is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment
of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall promptly correct or cure such defect
within 90 days from the date it was so notified of such defect and, if
Countrywide does not correct or cure such defect within such period, Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
shall either (a) substitute for the related Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be accomplished in the manner and subject to
the
conditions set forth in Section 2.03, or (b) purchase such Mortgage Loan from
the Trustee within 90 days from the date Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna) was notified of such defect
in writing at the Purchase Price of such Mortgage Loan; provided, however,
that
in no event shall such substitution or purchase occur more than 540 days from
the Closing Date, except that if the substitution or purchase of a Mortgage
Loan
pursuant to this provision is required by reason of a delay in delivery of
any
documents by the appropriate recording office, and there is a dispute between
either the Master Servicer or Countrywide (on its own behalf and on behalf
of
Park Granada, Park Monaco and Park Sienna) and the Trustee over the location
or
status of the recorded document, then such substitution or purchase shall occur
within 720 days from the Closing Date. The Trustee shall deliver
written notice to each Rating Agency within 270 days from the Closing Date
indicating each Mortgage Loan (a) which has not been returned by the appropriate
recording office or (b) as to which there is a dispute as to location or status
of such Mortgage Loan. Such notice shall be delivered every 90 days
thereafter until the related Mortgage Loan is returned to the
Trustee. Any such substitution pursuant to (a) above or purchase
pursuant to (b) above shall not be effected prior to the delivery to the Trustee
of the Opinion of Counsel required by Section 2.05 hereof, if any, and any
substitution pursuant to (a)
62
above
shall not be effected prior to the additional delivery to the Trustee of a
Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such
Mortgage Loan shall be deposited by Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) in the Certificate Account on
or
prior to the Distribution Account Deposit Date for the Distribution Date in
the
month following the month of repurchase and, upon receipt of such deposit and
certification with respect thereto in the form of Exhibit N hereto, the Trustee
shall release the related Mortgage File to Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna) and shall execute and
deliver at Countrywide’s (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) request such instruments of transfer or assignment
prepared by Countrywide, in each case without recourse, as shall be necessary
to
vest in Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna), or a designee, the Trustee’s interest in any Mortgage
Loan released pursuant hereto. If pursuant to the foregoing provisions
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) repurchases a Supplemental Mortgage Loan that is a MERS Mortgage
Loan, the Master Servicer shall either (i) cause MERS to execute and deliver
an
assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS
to Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) and shall cause such Mortgage to be removed from registration
on
the MERS® System in accordance with MERS’ rules and regulations or (ii) cause
MERS to designate on the MERS® System Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) or its designee as the
beneficial holder of such Mortgage Loan.
(d) The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions set forth in this
Agreement. The Master Servicer shall promptly deliver to the Trustee,
upon the execution or receipt thereof, the originals of such other documents
or
instruments constituting the Mortgage File as come into the possession of the
Master Servicer from time to time.
(e) It
is understood and agreed that the respective obligations of each Seller to
substitute for or to purchase any Mortgage Loan sold to the Depositor by it
which does not meet the requirements of Section 2.01 above shall constitute
the sole remedy respecting such defect available to the Trustee, the Depositor
and any Certificateholder against that Seller.
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
(a) Countrywide
hereby makes the representations and warranties set forth in
(i) Schedule II-A, Schedule II-B, Schedule II-C and Schedule II-D
hereto, and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, (ii) Schedule III-A
hereto, and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, or if so specified therein,
as
of the Initial Cut-off Date with respect to all of the Initial Mortgage Loans
and as of the related Supplemental Cut-off Date with respect to all of the
Supplemental Mortgage Loans, and (iii) Schedule III-B hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date, or if so specified therein, as of the
Initial Cut-off Date with respect to the Initial Mortgage Loans that are
Countrywide Mortgage Loans and as of the related
63
Supplemental
Cut-off Date with respect to the Supplemental Mortgage Loans that are
Countrywide Mortgage Loans. Park Granada hereby makes the
representations and warranties set forth in (i) Schedule II-B hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date and (ii) Schedule III-C hereto,
and by this reference incorporated herein, to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date, or if so specified therein, as of
the
Initial Cut-off Date with respect to the Initial Mortgage Loans that are Park
Granada Mortgage Loans and as of the related Supplemental Cut-off Date with
respect to the Supplemental Mortgage Loans that are Park Granada Mortgage
Loans. Park Monaco hereby makes the representations and warranties
set forth in (i) Schedule II-C hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date and (ii) Schedule III-D hereto, and by this reference incorporated herein,
to the Depositor, the Master Servicer and the Trustee, as of the Closing Date,
or if so specified therein, as of the Initial Cut-off Date with respect to
the
Initial Mortgage Loans that are Park Monaco Mortgage Loans and as of the related
Supplemental Cut-off Date with respect to the Supplemental Mortgage Loans that
are Park Monaco Mortgage Loans. Park Sienna hereby makes the
representations and warranties set forth in (i) Schedule II-D hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date and (ii) Schedule III-E hereto, and by
this
reference incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of the Initial
Cut-off Date with respect to the Initial Mortgage Loans that are Park Sienna
Mortgage Loans and as of the related Supplemental Cut-off Date with respect
to
the Supplemental Mortgage Loans that are Park Sienna Mortgage
Loans.
(b) The
Master Servicer hereby makes the representations and warranties set forth
in
Schedule IV hereto, and by this reference incorporated herein, to the Depositor
and the Trustee, as of the Closing Date.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty with respect to a Mortgage Loan made pursuant to Section 2.03(a)
or a breach of a representation or warranty with respect to a Supplemental
Mortgage Loan under Section 2.01(e)(i) that materially and adversely affects
the
interests of the Certificateholders in that Mortgage Loan, the party discovering
such breach shall give prompt notice thereof to the other parties and the
NIM
Insurer. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party
of a
breach of any representation or warranty with respect to a Mortgage Loan
sold by
it pursuant to Section 2.03(a) and with respect to a breach of a
representation and warranty with respect to a Supplemental Mortgage Loan
sold to
it under Section 2.01(e)(i) that materially and adversely affects the interests
of the Certificateholders in that Mortgage Loan, it shall cure such breach
in
all material respects, and if such breach is not so cured, shall, (i) if
such 90-day period expires prior to the second anniversary of the Closing
Date,
remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the manner and subject
to
the conditions set forth in this Section; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in
the
manner set forth below; provided, however, that any such
substitution pursuant to (i) above shall not be effected prior to the delivery
to the Trustee of the Opinion of Counsel required by Section 2.05, if any,
and any such substitution pursuant to (i) above shall not be effected prior
to
the additional delivery to the Trustee of a Request for Release substantially
in
the form of Exhibit N and the Mortgage File for
64
any
such
Substitute Mortgage Loan. The Seller repurchasing a Mortgage Loan
pursuant to this Section 2.03(c) shall promptly reimburse the Master Servicer
and the Trustee for any expenses reasonably incurred by the Master Servicer
or
the Trustee in respect of enforcing the remedies for such
breach. With respect to the representations and warranties described
in this Section which are made to the best of a Seller’s knowledge, if it
is discovered by either the Depositor, a Seller or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan or
the
interests of the Certificateholders therein, notwithstanding that Seller’s lack
of knowledge with respect to the substance of such representation or warranty,
such inaccuracy shall be deemed a breach of the applicable representation
or
warranty.
With
respect to any Substitute Mortgage Loan or Loans sold to the Depositor by
a
Seller, Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment
of
the Mortgage, and such other documents and agreements as are required by
Section 2.01, with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be
made in any calendar month after the Determination Date for such
month. Scheduled Payments due with respect to Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust Fund and
will
be retained by the related Seller on the next succeeding Distribution
Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter that Seller shall be entitled to retain
all
amounts received in respect of such Deleted Mortgage Loan. The Master
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and
the
substitution of the Substitute Mortgage Loan or Loans and the Master Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon
such substitution, the Substitute Mortgage Loan or Loans shall be subject
to the
terms of this Agreement in all respects, and the related Seller shall be
deemed
to have made with respect to such Substitute Mortgage Loan or Loans, as of
the
date of substitution, the representations and warranties made pursuant to
Section 2.03(a) with respect to such Mortgage Loan. Upon any
such substitution and the deposit to the Certificate Account of the amount
required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee shall release the Mortgage
File held for the benefit of the Certificateholders relating to such Deleted
Mortgage Loan to the related Seller and shall execute and deliver at such
Seller’s direction such instruments of transfer or assignment prepared by
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna), in each case without recourse, as shall be necessary to vest
title
in that Seller, or its designee, the Trustee’s interest in any Deleted Mortgage
Loan substituted for pursuant to this Section 2.03.
For
any
month in which a Seller substitutes one or more Substitute Mortgage Loans
for
one or more Deleted Mortgage Loans, the Master Servicer will determine the
amount (if any) by which the aggregate principal balance of all Substitute
Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of
substitution). The amount of such shortage (the “Substitution
Adjustment Amount”) plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such Deleted Mortgage Loans shall be deposited in
the
65
Certificate
Account by Countrywide (on its own behalf and on behalf of Park Granada,
Park
Monaco and Park Sienna) on or before the Distribution Account Deposit Date
for
the Distribution Date in the month succeeding the calendar month during which
the related Mortgage Loan became required to be purchased or replaced
hereunder.
In
the
event that a Seller shall have repurchased a Mortgage Loan, the Purchase
Price
therefor shall be deposited in the Certificate Account pursuant to
Section 3.05 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a Request for Release in the form
of Exhibit N hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person’s direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is
understood and agreed that the obligation under this Agreement of any Person
to
cure, repurchase or replace any Mortgage Loan as to which a breach has occurred
and is continuing shall constitute the sole remedy against such Persons
respecting such breach available to Certificateholders, the Depositor or
the
Trustee on their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Mortgage Files to the Trustee for the
benefit
of the Certificateholders.
|
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage
Loans.
|
The
Depositor hereby represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date of this Agreement or such other date set forth
in
this Agreement that as of the Closing Date, and following the transfer of
the
Mortgage Loans to it by each Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses
or
counterclaims.
The
Depositor hereby assigns, transfers and conveys to the Trustee all of its
rights
with respect to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to
Section 2.03(a), together with all rights of the Depositor to require a
Seller to cure any breach thereof or to repurchase or substitute for any
affected Mortgage Loan in accordance with this Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach
of any of the foregoing representations and warranties set forth in this
Section
2.04 (referred to herein as a “breach”), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating
Agency
and the NIM Insurer.
66
|
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with
Substitutions.
|
(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to
Section 2.02 or Section 2.03 shall be made more than 90 days after the
Closing Date unless
Countrywide delivers to the Trustee an Opinion of Counsel, which Opinion
of
Counsel shall not be at the expense of either the Trustee or the Trust Fund,
addressed to the Trustee, to the effect that such substitution will not
(i) result in the imposition of the tax on “prohibited transactions” on the
Trust Fund or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any REMIC
created under this Agreement to fail to qualify as a REMIC at any time that
any
Certificates are outstanding.
(b) Upon
discovery by the Depositor, a Seller, the Master Servicer, or the Trustee
that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall
promptly (and in any event within five (5) Business Days of discovery) give
written notice thereof to the other parties and the NIM Insurer. In
connection therewith, the Trustee shall require Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) at its option,
to
either (i) substitute, if the conditions in Section 2.03(c) with
respect to substitutions are satisfied, a Substitute Mortgage Loan for the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan
within 90 days of such discovery in the same manner as it would a Mortgage
Loan
for a breach of representation or warranty made pursuant to
Section 2.03. The Trustee shall reconvey to Countrywide the
Mortgage Loan to be released pursuant to this Section in the same manner,
and on
the same terms and conditions, as it would a Mortgage Loan repurchased for
breach of a representation or warranty contained in
Section 2.03.
|
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund
and,
concurrently with such transfer and assignment, has executed and delivered
to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust
Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders
of
the Certificates and to perform the duties set forth in this Agreement, to
the
end that the interests of the Holders of the Certificates may be adequately
and
effectively protected.
|
|
SECTION
2.07.
|
REMIC
Matters.
|
The
Preliminary Statement sets forth the designations and “latest possible maturity
date” for federal income tax purposes of all interests created
hereby. The “Startup Day” for purposes of the REMIC Provisions shall
be the Closing Date. The “tax matters person” with respect to each
REMIC hereunder shall be the Trustee and the Trustee shall hold the Tax Matters
Person Certificate. Each REMIC’s fiscal year shall be the calendar
year.
|
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
The
Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the
Master Servicer shall comply in the performance of its obligations under
this
Agreement with all reasonable rules and requirements of the insurer under
each
Required Insurance Policy; and
(b) no
written information, certificate of an officer, statement furnished in writing
or written report delivered to the Depositor, any affiliate of the Depositor
or
the Trustee and prepared by the Master Servicer pursuant to this Agreement
will
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make such information, certificate, statement or report not
misleading.
67
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
|
|
SECTION
3.01.
|
Master
Servicer to Service Mortgage
Loans.
|
For
and
on behalf of the Certificateholders, the Master Servicer shall service and
administer the Mortgage Loans in accordance with the terms of this Agreement
and
customary and usual standards of practice of prudent mortgage loan
servicers. In connection with such servicing and administration, the
Master Servicer shall have full power and authority, acting alone and/or
through
Subservicers as provided in Section 3.02, subject to the terms of this
Agreement (i) to execute and deliver, on behalf of the Certificateholders
and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the
manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and
other Liquidation Proceeds (which for the purpose of this Section 3.01 includes
any Subsequent Recoveries), and (iv) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage
Loan; provided that the Master Servicer shall not take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan, and shall not make or permit any modification,
waiver
or amendment of any Mortgage Loan which would cause any REMIC created under
this
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under section 860F(a) or section 860G(d) of the
Code. Without limiting the generality of the foregoing, the Master
Servicer, in its own name or in the name of the Depositor and the Trustee,
is
hereby authorized and empowered by the Depositor and the Trustee, when the
Master Servicer believes it appropriate in its reasonable judgment, to execute
and deliver, on behalf of the Trustee, the Depositor, the Certificateholders
or
any of them, any and all instruments of satisfaction or cancellation, or
of
partial or full release or discharge and all other comparable instruments,
with
respect to the Mortgage Loans, and with respect to the Mortgaged Properties
held
for the benefit of the Certificateholders. The Master Servicer shall
prepare and deliver to the Depositor and/or the Trustee such documents requiring
execution and delivery by either or both of them as are necessary or appropriate
to enable the Master Servicer to service and administer the Mortgage Loans
to
the extent that the Master Servicer is not permitted to execute and deliver
such
documents pursuant to the preceding sentence. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents
and
deliver them to the Master Servicer. The Master Servicer further is
authorized and empowered by the Trustee, on behalf of the Certificateholders
and
the Trustee, in its own name or in the name of the Subservicer, when the
Master
Servicer or the Subservicer, as the case may be, believes it appropriate
in its
best judgment to register any Mortgage Loan on the MERS® System, or cause the
removal from the registration of any Mortgage Loan on the MERS® System, to
execute and deliver, on behalf of the Trustee and the Certificateholders
or any
of them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name
of
MERS, solely as nominee for the Trustee and its successors and
assigns.
68
In
accordance with the standards of the preceding paragraph, the Master Servicer
shall advance or cause to be advanced funds as necessary for the purpose
of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by the Master
Servicer, if any, in effecting the timely payments of taxes and assessments
on
the Mortgaged Properties and related insurance premiums shall not, for the
purpose of calculating monthly distributions to the Certificateholders, be
added
to the Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
|
|
SECTION
3.02.
|
Subservicing;
Enforcement of the Obligations of
Subservicers.
|
(a) The
Master Servicer may arrange for the subservicing of any Mortgage Loan by
a
Subservicer pursuant to a subservicing agreement; provided,
however, that such subservicing arrangement and the terms of the
related
subservicing agreement must provide for the servicing of such Mortgage Loans
in
a manner consistent with the servicing arrangements contemplated under this
Agreement; provided, however, that the NIM Insurer shall have consented to
such
subservicing agreements (which consent shall not be unreasonably
withheld). Unless the context otherwise requires, references in this
Agreement to actions taken or to be taken by the Master Servicer in servicing
the Mortgage Loans include actions taken or to be taken by a Subservicer
on
behalf of the Master Servicer. Notwithstanding the provisions of any
subservicing agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Master Servicer and a Subservicer
or
reference to actions taken through a Subservicer or otherwise, the Master
Servicer shall remain obligated and liable to the Depositor, the Trustee
and the
Certificateholders for the servicing and administration of the Mortgage Loans
in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to
the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Mortgage Loans. All
actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Master Servicer with the
same
force and effect as if performed directly by the Master Servicer.
(b) For
purposes of this Agreement, the Master Servicer shall be deemed to have received
any collections, recoveries or payments with respect to the Mortgage Loans
that
are received by a Subservicer regardless of whether such payments are remitted
by the Subservicer to the Master Servicer.
|
|
SECTION
3.03.
|
Rights
of the Depositor, the NIM Insurer and the Trustee in Respect of
the Master
Servicer.
|
The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer under this Agreement and may, but is not obligated to, perform,
or
cause a designee to perform, any defaulted obligation of the Master Servicer
under this Agreement and in connection with any such defaulted obligation
to
exercise the related rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. None of the
69
Trustee,
the NIM Insurer or the Depositor shall have any responsibility or liability
for
any action or
failure to act by the Master Servicer nor shall the Trustee or the Depositor
be
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
|
|
SECTION
3.04.
|
Trustee
to Act as Master Servicer.
|
In
the
event that the Master Servicer shall for any reason no longer be the Master
Servicer under this Agreement (including by reason of an Event of Default
or
termination by the Depositor), the Trustee or its successor shall then
assume
all of the rights and obligations of the Master Servicer under this Agreement
arising thereafter (except that the Trustee shall not be (i) liable for
losses of the Master Servicer pursuant to Section 3.09 or any acts or
omissions of the predecessor Master Servicer under this Agreement),
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions
of Mortgage Loans under this Agreement including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03, (iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and
warranties of the Master Servicer under this Agreement). Any such
assumption shall be subject to Section 7.02. If the Master
Servicer shall for any reason no longer be the Master Servicer (including
by
reason of any Event of Default or termination by the Depositor), the Trustee
or
its successor shall succeed to any rights and obligations of the Master
Servicer
under each subservicing agreement.
The
Master Servicer shall, upon request of the Trustee, but at the expense
of the
Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement or substitute subservicing agreement
and
the Mortgage Loans then being serviced thereunder and an accounting of
amounts
collected or held by it and otherwise use its best efforts to effect the
orderly
and efficient transfer of the substitute subservicing agreement to the
assuming
party.
|
|
SECTION
3.05.
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution
Account;
Pre-Funding Account; Capitalized Interest Account; Carryover
Reserve
Fund.
|
(a) The
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect
all
payments called for under the terms and provisions of the Mortgage Loans
to the
extent such procedures shall be consistent with this Agreement and the
terms and
provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or, subject to Section 3.20, any Prepayment Charge or penalty
interest in connection with the prepayment of a Mortgage Loan and
(ii) extend the due dates for payments due on a Mortgage Note for a period
not greater than 180 days; provided, however, that the Master
Servicer cannot extend the maturity of any such Mortgage Loan past the
date on
which the final payment is due on the latest maturing Mortgage Loan as
of the
Cut-off Date. In the event of any such arrangement, the Master
Servicer shall make Advances on the related Mortgage Loan in accordance
with the
provisions of Section 4.01 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without modification thereof
by
reason of such arrangements. In addition, the NIM Insurer’s prior
written consent shall be
70
required
for any waiver of Prepayment Charges or for the extension of the due dates
for
payments due on a Mortgage Note, if the aggregate number of outstanding
Mortgage
Loans that have been granted such waivers or extensions exceeds 5% of the
aggregate number of Mortgage Loans. The Master Servicer shall not be
required to institute or join in litigation with respect to collection
of any
payment (whether under a Mortgage, Mortgage Note or otherwise or against
any
public or governmental authority with respect to a taking or condemnation)
if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law.
(b) The
Master Servicer shall establish and maintain a Certificate Account into
which
the Master Servicer shall deposit or cause to be deposited no later than
two
Business Days after receipt (or, if (i) the current short-term credit rating
of
Countrywide from S&P is reduced below “A-2” or, if
Countrywide does not have a short-term credit rating from S&P, the current
long-term credit rating of Countrywide from S&P is reduced below “BBB+”,
(ii) the current long-term credit rating of Countrywide from Xxxxx’x is reduced
below “A3” or (iii) the current long-term credit rating of Countrywide from
Fitch is reduced below “A-”, the Master Servicer shall deposit or cause to be
deposited on a daily basis within one Business Day of receipt), except
as
otherwise specifically provided in this Agreement, the following payments
and
collections remitted by Subservicers or received by it in respect of Mortgage
Loans subsequent to the Cut-off Date (other than in respect of principal
and
interest due on the Mortgage Loans on or before the Cut-off Date) and the
following amounts required to be deposited under this Agreement:
(i) all
payments on account of principal on the Mortgage Loans, including Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans, net of the related
Master
Servicing Fee, Prepayment Interest Excess and any lender paid mortgage
insurance
premiums;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds, other
than
proceeds to be applied to the restoration or repair of a Mortgaged Property
or
released to the Mortgagor in accordance with the Master Servicer’s normal
servicing procedures;
(iv) any
amount required to be deposited by the Master Servicer or the Depositor
in
connection with any losses on Permitted Investments for which it is
responsible;
(v) any
amounts required to be deposited by the Master Servicer pursuant to
Section 3.09(c) and in respect of net monthly income from REO Property
pursuant to Section 3.11;
(vi) all
Substitution Adjustment Amounts;
(vii) all
Advances made by the Master Servicer pursuant to Section 4.01;
(viii) all
payments on account of Prepayment Charges on the Mortgage Loans;
and
71
(ix) any
other amounts required to be deposited under this Agreement.
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly
payment remitted by the Mortgagor, the Master Servicer shall cause funds
to be
deposited into the Certificate Account in an amount required to cause an
amount
of interest to be paid with respect to such Mortgage Loan equal to the
amount of
interest that has accrued on such Mortgage Loan from the preceding Due
Date at
the Mortgage Rate net of the related Master Servicing Fee.
The
foregoing requirements for remittance by the Master Servicer shall be exclusive,
it being understood and agreed that, without limiting the generality of
the
foregoing, payments in the nature of late payment charges or assumption
fees, if
collected, need not be remitted by the Master Servicer. In the event
that the Master Servicer shall remit any amount not required to be remitted,
it
may at any time withdraw or direct the institution maintaining the Certificate
Account to withdraw such amount from the Certificate Account, any provision
in
this Agreement to the contrary notwithstanding. Such withdrawal or
direction may be accomplished by delivering written notice thereof to the
Trustee or such other institution maintaining the Certificate Account which
describes the amounts deposited in error in the Certificate
Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds
deposited in the Certificate Account shall be held in trust for the
Certificateholders until withdrawn in accordance with
Section 3.08.
(c) [Reserved].
(d) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Distribution Account. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain in the Distribution Account
the
following:
(i) the
aggregate amount remitted by the Master Servicer to the Trustee pursuant
to
Section 3.08(a)(ix);
(ii) any
amount deposited by the Master Servicer or the Depositor pursuant to Section
3.05(e) in connection with any losses on Permitted Investments for which
it is
responsible; and
(iii) any
other amounts deposited hereunder which are required to be deposited in
the
Distribution Account.
In
the
event that the Master Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee to withdraw such amount
from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. Such direction may be accomplished by delivering an
Officer’s Certificate to the Trustee which describes the amounts deposited in
error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.08. In no event shall the
Trustee incur liability for withdrawals from the Distribution Account at
the
direction of the Master Servicer.
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(e) Each
institution at which the Certificate Account, the Pre-Funding Account,
the
Capitalized Interest Account or the Distribution Account is maintained
shall
invest the funds therein as directed in writing by the Master Servicer
in
Permitted Investments, which shall mature not later than (i) in the case of
the Certificate Account, the Pre-Funding Account or the Capitalized Interest
Account, the second Business Day next preceding the related Distribution
Account
Deposit Date (except that if such Permitted Investment is an obligation
of the
institution that maintains such account, then such Permitted Investment
shall
mature not later than the Business Day next preceding such Distribution
Account
Deposit Date) and (ii) in the case of the Distribution Account, the
Business Day next preceding the Distribution Date (except that if such
Permitted
Investment is an obligation of the institution that maintains such fund
or
account, then such Permitted Investment shall mature not later than such
Distribution Date) and, in each case, shall not be sold or disposed of
prior to
its maturity. All such Permitted Investments shall be made in the
name of the Trustee, for the benefit of the Certificateholders. All
income and gain net of any losses realized from any such investment of
funds on
deposit in the Certificate Account, or the Distribution Account shall be
for the
benefit of the Master Servicer as servicing compensation and shall be remitted
to it monthly as provided in this Agreement. The amount of any
realized losses in the Certificate Account or the Distribution Account
incurred
in any such account in respect of any such investments shall promptly be
deposited by the Master Servicer in the Certificate Account or paid to
the
Trustee for deposit into the Distribution Account, as applicable. The
amount of any losses in the Pre-Funding Account or the Capitalized Interest
Account incurred in respect of any such investments shall promptly be deposited
by the Depositor in the Pre-Funding Account or the Capitalized Interest
Account,
as applicable. All income or gain (net of any losses) realized from
any such investment of funds on deposit in the Capitalized Interest Account
shall be credited to the Capitalized Interest Account. The Trustee in
its fiduciary capacity shall not be liable for the amount of any loss incurred
in respect of any investment or lack of investment of funds held in the
Certificate Account, the Pre-Funding Account, the Capitalized Interest
Account
or the Distribution Account and made in accordance with this Section
3.05.
(f) The
Master Servicer shall give notice to the Trustee, each Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof. The Trustee shall
give notice to the Master Servicer, each Seller, each Rating Agency and
the
Depositor of any proposed change of the location of the Distribution Account,
the Pre-Funding Account, the Capitalized Interest Account or the Carryover
Reserve Fund prior to any change thereof.
(g) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Pre-Funding Account. On the Closing Date Countrywide shall remit the
Pre-Funded Amount to the Trustee for deposit in the Pre-Funding
Account. On each Supplemental Transfer Date, upon satisfaction of the
conditions for such Supplemental Transfer Date set forth in Section 2.01(e),
with respect to the related Supplemental Transfer Agreement, the Trustee
shall
pay to each Seller selling Supplemental Mortgage Loans to the Depositor
on such
Supplemental Transfer Date the portion of the Aggregate Supplemental Transfer
Amount held in escrow pursuant to Section 2.01(e) as payment of the purchase
price for the Supplemental Mortgage Loans sold by such Seller. If at
any time the Depositor becomes aware that the Cut-off Date Principal Balance
of
Supplemental Mortgage Loans reflected on any Supplemental Transfer Agreement
exceeds the actual Cut-off Date Principal Balance of the relevant Supplemental
Mortgage Loans, the
73
Depositor
may so notify the Trustee and the Trustee shall redeposit into the Pre-Funding
Account the excess reported to it by the Depositor.
If
any
funds remain in the Pre-Funding Account at the end of the Funding Period,
to the
extent that they represent earnings on the amounts originally deposited
into the
Pre-Funding Account, the Trustee shall distribute them to the order of
the
Depositor. The remaining funds shall be transferred to the
Distribution Account to be included as part of the Principal Remittance
Amount.
(h) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Capitalized Interest Account. On the Closing Date, Countrywide shall
remit the Capitalized Interest Deposit to the Trustee for deposit in the
Capitalized Interest Account. On each Distribution Account Deposit
Date related to a Funding Period Distribution Date, the Trustee shall transfer
from the Capitalized Interest Account to the Distribution Account an amount
equal to the Capitalized Interest Requirement (which, to the extent required,
may include investment earnings on amounts on deposit therein) for the
related
Distribution Date.
On
each
Supplemental Transfer Date, upon satisfaction of the conditions for such
Supplemental Transfer Date set forth in Section 2.01(e), the Trustee shall
withdraw from the Capitalized Interest Account the Capitalized Interest
Release
Amount for such Supplemental Transfer Date and distribute the amount to
the
order of Countrywide.
If
any
funds remain in the Capitalized Interest Account at the end of the Distribution
Account Deposit Date for the last Funding Period Distribution Date, the
Trustee
shall distribute any such remaining funds to the order of Countrywide on
the
last Funding Period Distribution Date.
(i) On
the Closing Date, the Trustee shall establish and maintain in its name,
in trust
for the benefit of the Holders of the LIBOR Certificates, the Carryover
Reserve
Fund and shall deposit $1,000 therein upon receipt from or on behalf of
the
Depositor of such amount. The Carryover Reserve Fund shall be an
Eligible Account, and funds on deposit therein shall be held separate and
apart
from, and shall not be commingled with, any other moneys, including without
limitation, other moneys held by the Trustee pursuant to this
Agreement.
Funds
in
the Carryover Reserve Fund may be invested in Permitted Investments at
the
direction of the Majority of the Holders of the Class C-P Certificates,
which
Permitted Investments shall mature not later than the Business Day immediately
preceding the first Distribution Date that follows the date of such investment
(except that if such Permitted Investment is an obligation of the institution
that maintains the Carryover Reserve Fund, then such Permitted Investment
shall
mature not later than such Distribution Date) and shall not be sold or
disposed
of prior to maturity. All such Permitted Investments shall be made in
the name of the Trustee, for the benefit of the Holders of the Class C-P
Certificates. In the absence of such written direction, all funds in the
Carryover Reserve Fund shall be invested by the Trustee in The Bank of
New York
cash reserves. Any net investment earnings on such amounts shall be
retained therein until withdrawn as provided in Section 3.08. Any
losses incurred in the Carryover Reserve Fund in respect of any such investments
shall be charged against amounts on deposit in the Carryover Reserve Fund
(or
such investments) immediately as realized. The Trustee shall not be
liable for the amount of any loss incurred in respect of any investment
or lack
of investment of funds held in the Carryover Reserve Fund and made in accordance
with
74
this
Section 3.05. The Carryover Reserve Fund will not constitute an asset
of any REMIC created hereunder. The Class C-P Certificates shall
evidence ownership of the Carryover Reserve Fund for federal tax
purposes.
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|
SECTION
3.06.
|
Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts.
|
(a) To
the extent required by the related Mortgage Note and not violative of current
law, the Master Servicer shall establish and maintain one or more accounts
(each, an “Escrow Account”) and deposit and retain
therein all collections from the Mortgagors (or advances by the Master
Servicer)
for the payment of taxes, assessments, hazard insurance premiums or comparable
items for the account of the Mortgagors. Nothing in this Agreement
shall require the Master Servicer to compel a Mortgagor to establish an
Escrow
Account in violation of applicable law.
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse the Master Servicer
out
of related collections for any payments made pursuant to Sections 3.01
(with respect to taxes and assessments and insurance premiums) and 3.09
(with
respect to hazard insurance), to refund to any Mortgagors any sums determined
to
be overages, to pay interest, if required by law or the terms of the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account
or to
clear and terminate the Escrow Account at the termination of this Agreement
in
accordance with Section 9.01. The Escrow Accounts shall not be a
part of the Trust Fund.
(c) The
Master Servicer shall advance any payments referred to in Section 3.06(a)
that are not timely paid by the Mortgagors on the date when the tax, premium
or
other cost for which such payment is intended is due, but the Master Servicer
shall be required so to advance only to the extent that such advances,
in the
good faith judgment of the Master Servicer, will be recoverable by the
Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
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|
SECTION
3.07.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
The
Master Servicer shall afford each Seller, the Depositor, the NIM Insurer
and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge,
but only
upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon
reasonable advance notice in writing, the Master Servicer will provide
to each
Certificateholder and/or Certificate Owner which is a savings and loan
association, bank or insurance company certain reports and reasonable access
to
information and documentation regarding the Mortgage Loans sufficient to
permit
such Certificateholder and/or Certificate Owner to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided that the Master Servicer shall
be
entitled to be
75
reimbursed
by each such Certificateholder and/or Certificate Owner for actual expenses
incurred by the Master Servicer in providing such reports and
access. Upon request, the Master Servicer shall furnish to the
Trustee and the NIM Insurer its most recent publicly available financial
statements and any other information relating to its capacity to perform
its
obligations under this Agreement reasonably requested by the NIM
Insurer.
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|
SECTION
3.08.
|
Permitted
Withdrawals from the Certificate Account; the Distribution Account
and the
Carryover Reserve Fund.
|
(a) The
Master Servicer may from time to time make withdrawals from the Certificate
Account for the following purposes:
(i) to
pay to the Master Servicer (to the extent not previously retained by the
Master
Servicer) the servicing compensation to which it is entitled pursuant to
Section 3.14 and to pay to the Master Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in
or
credited to the Certificate Account;
(ii) to
reimburse each of the Master Servicer and the Trustee for unreimbursed
Advances
made by it, such right of reimbursement pursuant to this subclause (ii)
being limited to amounts received on the Mortgage Loan(s) in respect of
which
any such Advance was made;
(iii) to
reimburse each of the Master Servicer and the Trustee for any Nonrecoverable
Advance previously made by it;
(iv) to
reimburse the Master Servicer for Insured Expenses from the related Insurance
Proceeds;
(v) to
reimburse the Master Servicer for (a) unreimbursed Servicing Advances, the
Master Servicer’s right to reimbursement pursuant to this clause (a) with
respect to any Mortgage Loan being limited to amounts received on such
Mortgage
Loan(s) that represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 3.06 and (b) for
unpaid Master Servicing Fees as provided in Section 3.11;
(vi) to
pay to the purchaser, with respect to each Mortgage Loan or property acquired
in
respect thereof that has been purchased pursuant to Section 2.02, 2.03 or
3.11, all amounts received on such Mortgage Loan after the date of such
purchase;
(vii) to
reimburse the Sellers, the Master Servicer, the NIM Insurer or the Depositor
for
expenses incurred by any of them and reimbursable pursuant to
Section 6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not required
to be
deposited in the Certificate Account;
76
(ix) on
or prior to the Distribution Account Deposit Date, to withdraw an amount
equal
to the Interest Remittance Amount, Principal Remittance Amount, Prepayment
Charge Amount and the Trustee Fee for such Distribution Date and remit
such
amount to the Trustee for deposit in the Distribution Account; and
(x) to
clear and terminate the Certificate Account upon termination of this Agreement
pursuant to Section 9.01.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the
Certificate Account pursuant to such subclauses (i), (ii), (iv), (v) and
(vi). Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the
Trustee an Officer’s Certificate of a Servicing Officer indicating the amount of
any previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The
Trustee shall withdraw funds from the Distribution Account for distributions
to
Certificateholders and remittance to the Swap Accounts, in the manner specified
in this Agreement (and to withhold from the amounts so withdrawn, the amount
of
any taxes that it is authorized to withhold pursuant to the third paragraph
of
Section 8.11). In addition, the Trustee may from time to time make
withdrawals from the Distribution Account for the following
purposes:
(i) to
pay to itself the Trustee Fee for the related Distribution Date;
(ii) to
pay to the Master Servicer as additional servicing compensation earnings
on or
investment income with respect to funds in the Distribution
Account;
(iii) to
withdraw and return to the Master Servicer any amount deposited in the
Distribution Account and not required to be deposited therein;
(iv) to
reimburse the Trustee for any unreimbursed Advances made by it pursuant
to
Section 4.01(b) hereof, such right of reimbursement pursuant to this subclause
(iv) being limited to (x) amounts received on the related Mortgage Loan(s)
in
respect of which any such Advance was made and (y) amounts not otherwise
reimbursed to the Trustee pursuant to Section 3.08(a)(ii) hereof;
(v) to
reimburse the Trustee for any Nonrecoverable Advance previously made by
the
Trustee pursuant to Section 4.01(b) hereof, such right of reimbursement
pursuant
to this subclause (v) being limited to amounts not otherwise reimbursed
to the
Trustee pursuant to Section 3.08(a)(iii) hereof; and
(vi) to
clear and terminate the Distribution Account upon termination of this Agreement
pursuant to Section 9.01.
(c) The
Trustee shall withdraw funds from the Carryover Reserve Fund for distribution
to
the LIBOR Certificates in the manner specified in Section 4.02(c)(4) (and
to
withhold from the amounts so withdrawn the amount of any taxes that it
is
authorized to retain
77
pursuant
to the third paragraph of Section 8.11). In addition, the Trustee may
from time to time make withdrawals from the Carryover Reserve Fund for
the
following purposes:
(i) to
withdraw any amount deposited in the Carryover Reserve Fund and not required
to
be deposited therein; and
(ii) to
clear and terminate the Carryover Reserve Fund upon the termination of
this
Agreement pursuant to Section 9.01.
(d) [Reserved].
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|
SECTION
3.09.
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
(a) The
Master Servicer shall cause to be maintained, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to
the
lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan or (ii) the greater of (y) the outstanding principal
balance of the Mortgage Loan and (z) an amount such that the proceeds of
such policy shall be sufficient to prevent the Mortgagor and/or the mortgagee
from becoming a co-insurer. Each such policy of standard hazard
insurance shall contain, or have an accompanying endorsement that contains,
a
standard mortgagee clause. Any amounts collected by the Master
Servicer under any such policies (other than the amounts to be applied
to the
restoration or repair of the related Mortgaged Property or amounts released
to
the Mortgagor in accordance with the Master Servicer’s normal servicing
procedures) shall be deposited in the Certificate Account. Any cost
incurred by the Master Servicer in maintaining any such insurance shall
not, for
the purpose of calculating monthly distributions to the Certificateholders
or
remittances to the Trustee for their benefit, be added to the principal
balance
of the Mortgage Loan, notwithstanding that the terms of the Mortgage Loan
so
permit. Such costs shall be recoverable by the Master Servicer out of
late payments by the related Mortgagor or out of the proceeds of liquidation
of
the Mortgage Loan or Subsequent Recoveries to the extent permitted by
Section 3.08. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained
on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as
shall
require such additional insurance. If the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in
the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such
flood insurance shall be in an amount equal to the least of (i) the
outstanding principal balance of the related Mortgage Loan, (ii) the
replacement value of the improvements which are part of such Mortgaged
Property,
and (iii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program.
(b) [Reserved].
(c) The
Master Servicer shall not take any action which would result in non-coverage
under any applicable Primary Insurance Policy of any loss which, but for
the
actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or
78
refuse
to
renew any such Primary Insurance Policy that is in effect at the date of
the
initial issuance of the Certificates and is required to be kept in force
hereunder unless the replacement Primary Insurance Policy for such canceled
or
non-renewed policy is maintained with a Qualified Insurer.
Except
with respect to any Lender PMI Mortgage Loans, the Master Servicer shall
not be
required to maintain any Primary Insurance Policy (i) with respect to any
Mortgage Loan with a Loan-to-Value Ratio less than or equal to 80% as of
any
date of determination or, based on a new appraisal, the principal balance
of
such Mortgage Loan represents 80% or less of the new appraised value or
(ii) if maintaining such Primary Insurance Policy is prohibited by
applicable law. With respect to the Lender PMI Mortgage Loans, the
Master Servicer shall maintain the Primary Insurance Policy for the life
of such
Mortgage Loans, unless otherwise provided for in the related Mortgage Note
or
prohibited by law.
The
Master Servicer agrees to effect the timely payment of the premiums on
each
Primary Insurance Policy, and such costs not otherwise recoverable shall
be
recoverable by the Master Servicer from the related proceeds of liquidation
and
Subsequent Recoveries.
(d) In
connection with its activities as Master Servicer of the Mortgage Loans,
the
Master Servicer agrees to present on behalf of itself, the Trustee and
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary
to
permit recovery under any Primary Insurance Policies respecting defaulted
Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Certificate
Account.
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|
SECTION
3.10.
|
Enforcement
of Due-on-Sale Clauses; Assumption
Agreements.
|
(a) Except
as otherwise provided in this Section, when any property subject to a Mortgage
has been conveyed by the Mortgagor, the Master Servicer shall to the extent
that
it has knowledge of such conveyance, enforce any due-on-sale clause contained
in
any Mortgage Note or Mortgage, to the extent permitted under applicable
law and
governmental regulations, but only to the extent that such enforcement
will not
adversely affect or jeopardize coverage under any Required Insurance
Policy. Notwithstanding the foregoing, the Master Servicer is not
required to exercise such rights with respect to a Mortgage Loan if the
Person
to whom the related Mortgaged Property has been conveyed or is proposed
to be
conveyed satisfies the terms and conditions contained in the Mortgage Note
and
Mortgage related thereto and the consent of the mortgagee under such Mortgage
Note or Mortgage is not otherwise so required under such Mortgage Note
or
Mortgage as a condition to such transfer. In the event that the
Master Servicer is prohibited by law from enforcing any such due-on-sale
clause,
or if coverage under any Required Insurance Policy would be adversely affected,
or if nonenforcement is otherwise permitted hereunder, the Master Servicer
is
authorized, subject to Section 3.10(b), to take or enter into an assumption
and modification agreement from or with the person to whom such property
has
been or is about to be conveyed, pursuant to which such person becomes
liable
under the Mortgage Note and, unless prohibited by applicable state law,
the
Mortgagor remains liable thereon, provided that the Mortgage Loan shall
continue
to be covered (if so covered before the Master Servicer enters such agreement)
by the applicable Required Insurance Policies. The Master Servicer,
subject to Section 3.10(b), is also authorized with the prior approval of
the
79
insurers
under any Required Insurance Policies to enter into a substitution of liability
agreement with such Person, pursuant to which the original Mortgagor is
released
from liability and such Person is substituted as Mortgagor and becomes
liable
under the Mortgage Note. Notwithstanding the foregoing, the Master
Servicer shall not be deemed to be in default under this Section by reason
of
any transfer or assumption which the Master Servicer reasonably believes
it is
restricted by law from preventing, for any reason whatsoever.
(b) Subject
to the Master Servicer’s duty to enforce any due-on-sale clause to the extent
set forth in Section 3.10(a), in any case in which a Mortgaged Property has
been conveyed to a Person by a Mortgagor, and such Person is to enter into
an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Master Servicer shall prepare and deliver
or
cause to be prepared and delivered to the Trustee for signature and shall
direct, in writing, the Trustee to execute the assumption agreement with
the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
as
are reasonable or necessary to carry out the terms of the Mortgage Note
or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In
connection with any such assumption, no material term of the Mortgage Note
may
be changed. In addition, the substitute Mortgagor and the Mortgaged
Property must be acceptable to the Master Servicer in accordance with its
underwriting standards as then in effect. Together with each such
substitution, assumption or other agreement or instrument delivered to
the
Trustee for execution by it, the Master Servicer shall deliver an Officer’s
Certificate signed by a Servicing Officer stating that the requirements
of this
subsection have been met in connection therewith. The Master Servicer
shall notify the Trustee that any such substitution or assumption agreement
has
been completed by forwarding to the Trustee the original of such substitution
or
assumption agreement, which in the case of the original shall be added
to the
related Mortgage File and shall, for all purposes, be considered a part
of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Master Servicer
for entering into an assumption or substitution of liability agreement
will be
retained by the Master Servicer as additional servicing
compensation.
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|
SECTION
3.11.
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
(a) The
Master Servicer shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the Master Servicer
shall
follow such practices and procedures as it shall deem necessary or advisable
and
as shall be normal and usual in its general mortgage servicing activities
and
meet the requirements of the insurer under any Required Insurance Policy;
provided, however, that the Master Servicer shall not be required to expend
its
own funds in connection with any foreclosure or towards the restoration
of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will
be
recoverable to it through the
80
proceeds
of liquidation of the Mortgage Loan and Subsequent Recoveries (respecting
which
it shall have priority for purposes of withdrawals from the Certificate
Account). The Master Servicer shall be responsible for all other
costs and expenses incurred by it in any such proceedings; provided, however,
that it shall be entitled to reimbursement of such costs and expenses from
the
proceeds of liquidation of the Mortgage Loan and Subsequent Recoveries
with
respect to the related Mortgaged Property, as provided in the definition
of
Liquidation Proceeds. If the Master Servicer has knowledge that a
Mortgaged Property which the Master Servicer is contemplating acquiring
in
foreclosure or by deed in lieu of foreclosure is located within a one-mile
radius of any site listed in the Expenditure Plan for the Hazardous Substance
Clean Up Bond Act of 1984 or other site with environmental or hazardous
waste
risks known to the Master Servicer, the Master Servicer will, prior to
acquiring
the Mortgaged Property, consider such risks and only take action in accordance
with its established environmental review procedures.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. The Trustee’s name
shall be placed on the title to such REO Property solely as the Trustee
hereunder and not in its individual capacity. The Master Servicer
shall ensure that the title to such REO Property references the Pooling
and
Servicing Agreement and the Trustee’s capacity thereunder. The Master
Servicer shall allow any REO Property that was subject to a lease at the
time of
acquisition through foreclosure or deed-in-lieu of foreclosure to continue
to be
rented pursuant to such lease, but upon the expiration of such lease, the
Master
Servicer shall not take any action to rent the related REO
Property. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall either itself or through an agent selected by the
Master
Servicer protect and conserve such REO Property in the same manner and
to such
extent as is customary in the locality where such REO Property is
located. The Master Servicer shall prepare for and deliver to the
Trustee a statement with respect to each REO Property that has been rented
showing the aggregate rental income received and all expenses incurred
in
connection with the maintenance of such REO Property at such times as is
necessary to enable the Trustee to comply with the reporting requirements
of the
REMIC Provisions. Any net monthly income from such REO Property shall
be deposited in the Certificate Account no later than the close of business
on
each Determination Date. The Master Servicer shall perform the tax
reporting and withholding required by Sections 1445 and 6050J of the Code
with respect to foreclosures and abandonments, the tax reporting required
by
Section 6050H of the Code with respect to the receipt of mortgage interest
from individuals and any tax reporting required by Section 6050P of the
Code with respect to the cancellation of indebtedness by certain financial
entities, by preparing such tax and information returns as may be required,
in
the form required, and delivering the same to the Trustee for
filing.
In
the
event that the Trust Fund acquires any Mortgaged Property as aforesaid
or
otherwise in connection with a default or imminent default on a Mortgage
Loan,
the Master Servicer shall dispose of such Mortgaged Property as soon as
practicable in a manner that maximizes the Liquidation Proceeds thereof,
but in
no event later than three years after its acquisition by the Trust
Fund. In the event that the Trustee shall have been supplied with an
Opinion of Counsel to the effect that the holding by the Trust Fund of
such
Mortgaged Property subsequent to a three-year period, if applicable, will
not
result in the imposition of taxes on “prohibited transactions” of any REMIC
hereunder as defined in Section 860F of the Code or
81
cause
any
REMIC hereunder to fail to qualify as a REMIC at any time that any Certificates
are outstanding, then the Trust Fund may continue to hold such Mortgaged
Property (subject to any conditions contained in such Opinion of Counsel)
after
the expiration of such three-year period. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust
Fund
shall be allowed to continue to be rented or otherwise used for the production
of income by or on behalf of the Trust Fund in such a manner or pursuant
to any
terms that would (i) cause such Mortgaged Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code
or (ii) subject any REMIC hereunder to the imposition of any federal, state
or local income taxes on the income earned from such Mortgaged Property
under
Section 860G(c) of the Code or otherwise, unless the Master Servicer has
agreed to indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
In
the
event of a default on a Mortgage Loan one or more of whose obligor is not
a
United States Person, as that term is defined in Section 7701(a)(30) of the
Code, in connection with any foreclosure or acquisition of a deed in lieu
of
foreclosure (together, “foreclosure”) in respect of such Mortgage Loan, the
Master Servicer will cause compliance with the provisions of Treasury Regulation
Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure that
no withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure
are
required to be remitted to the obligors on such Mortgage Loan.
The
decision of the Master Servicer to foreclose on a defaulted Mortgage Loan
shall
be subject to a determination by the Master Servicer that the proceeds
of such
foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the rental of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including
any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall
be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were
still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate
Account. To the extent the net income received during any calendar
month is in excess of the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan
for
such calendar month, such excess shall be considered to be a partial prepayment
of principal of the related Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as any income
from an
REO Property, will be applied in the following order of priority: first,
to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Master Servicing Fees; second, to reimburse the Master Servicer or
the
Trustee for any unreimbursed Advances; third, to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer or the Trustee pursuant to
Section 3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued
and unpaid interest (to the extent no Advance has been made for such amount
or
any such Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Net Mortgage Rate to the Due Date occurring in
the
month in which such amounts are required to be distributed; and fifth,
as a
recovery of principal of the Mortgage Loan. Excess Proceeds, if any,
from the liquidation of a Liquidated
82
Mortgage
Loan will be retained by the Master Servicer as additional servicing
compensation pursuant to Section 3.14.
The
Master Servicer, in its sole discretion, shall have the right to purchase
for
its own account from the Trust Fund any Mortgage Loan which is 151 days
or more
delinquent at a price equal to the Purchase Price; provided, however, that
the
Master Servicer may only exercise this right on or before the next to the
last
day of the calendar month which such Mortgage Loan became 151 days delinquent
(such month, the “Eligible Repurchase Month”); provided further, that any such
Mortgage Loan which becomes current but thereafter becomes delinquent may
be
purchased by the Master Servicer pursuant to this Section in any ensuing
Eligible Repurchase Month. The Master Servicer, in its sole
discretion, shall also have the right to purchase for its own account from
the
Trust Fund at a price equal to the Purchase Price any Eligible EPD Protected
Mortgage Loan. The Master Servicer’s right to purchase any such
Eligible EPD Protected Mortgage Loan shall expire on the 270th day
following the
date on which the related Mortgage Loan became an Eligible EPD Protected
Mortgage Loan. The Purchase Price for any Mortgage Loan purchased
under this Section 3.11 shall be deposited in the Certificate Account and
the
Trustee, upon receipt of a certificate from the Master Servicer in the
form of
Exhibit N to this Agreement, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute
and
deliver such instruments of transfer or assignment prepared by the purchaser
of
such Mortgage Loan, in each case without recourse, as shall be necessary
to vest
in the purchaser of such Mortgage Loan any Mortgage Loan released pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all the
Trustee’s right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an
assignment outright and not for security. The purchaser of such
Mortgage Loan shall thereupon own such Mortgage Loan, and all security
and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto. In addition, if the Master
Servicer receives any Premium in connection with an Eligible EPD Protected
Mortgage Loan that the Master Servicer has purchased pursuant to this Section
3.11, the Master Servicer shall transfer such Premium to the Certificate
Account
(not later than 1:00 p.m. Pacific time on the Master Servicer Advance Date
for
the Distribution Date related to the Due Period in which such Premium is
received), and such amount shall be distributable as part of the Prepayment
Charge Amount on the related Distribution Date.
(b) Countrywide
is permitted to solicit Mortgagors for reductions to the Mortgage Rates of their
respective Mortgage Loans so long as the Mortgagors are not selected for
solicitation based on the inclusion of the related Mortgage Loans in the
Trust
Fund. If a Mortgagor requests a reduction to the Mortgage Rate for
the related Mortgage Loan, the Master Servicer shall agree to a reduction
in the
Mortgage Rate of that Mortgage Loan (the “Modified Mortgage Loan”) if (i) no
monetary default exists with respect to such Mortgage Loan and (ii) Countrywide,
in its corporate capacity, agrees to purchase the Modified Mortgage Loan
from
the Trust Fund immediately following the modification as described below.
Effective immediately after the modification, and, in any event, on the
same
Business Day on which the modification occurs, all interest of the Trustee
in
the Modified Mortgage Loan shall automatically be deemed transferred and
assigned to Countrywide and all benefits and burdens of ownership thereof,
including the right to accrued interest thereon from the date of modification
and the risk of default thereon, shall pass to Countrywide. The Master
Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to
the effect that all requirements of this paragraph
83
have
been
satisfied with respect to the Modified Mortgage Loan. For federal
income tax purposes, the Trustee shall account for such purchase as a prepayment
in full of the Modified Mortgage Loan.
Countrywide
shall remit to the Master Servicer and the Master Servicer shall deposit
the
Purchase Price for any Modified Mortgage Loan in the Certificate Account
pursuant to Section 3.05 within one Business Day after the purchase of
the
Modified Mortgage Loan. Upon receipt by the Trustee of written notification
of
any such deposit signed by a Servicing Officer, the Trustee shall release
to
Countrywide the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as
shall
be necessary to vest in Countrywide any Modified Mortgage Loan previously
transferred and assigned pursuant hereto. Countrywide covenants and agrees
to
indemnify the Trust Fund against any liability for any “prohibited transaction”
taxes and any related interest, additions, and penalties imposed on the
Trust
Fund established hereunder as a result of any modification of a Mortgage
Loan
effected pursuant to this subsection (b), any holding of a Modified Mortgage
Loan by the Trust Fund or any purchase of a Modified Mortgage Loan by
Countrywide (but such obligation shall not prevent Countrywide or any other
appropriate Person from in good faith contesting any such tax in appropriate
proceedings and shall not prevent Countrywide from withholding payment
of such
tax, if permitted by law, pending the outcome of such proceedings). Countrywide
shall have no right of reimbursement for any amount paid pursuant to the
foregoing indemnification, except to the extent that the amount of any
tax,
interest, and penalties, together with interest thereon, is refunded to
the
Trust Fund or Countrywide. Nothing in this Section 3.11(b) restricts
the ability of the Master Servicer to modify a Mortgage Loan in a manner
that is
consistent with the servicing standard set forth in Section 3.01; provided,
however, that Countrywide shall have no obligation to purchase any such
modified
Mortgage Loan.
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|
SECTION
3.12.
|
Trustee
to Cooperate; Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Master Servicer will immediately notify the Trustee
by
delivering, or causing to be delivered a “Request for Release” substantially in
the form of Exhibit N of this Agreement. Upon receipt of such
request, the Trustee shall promptly release the related Mortgage File to
the
Master Servicer, and the Trustee shall at the Master Servicer’s direction
execute and deliver to the Master Servicer the request for reconveyance,
deed of
reconveyance or release or satisfaction of mortgage or such instrument
releasing
the lien of the Mortgage in each case provided by the Master Servicer,
together
with the Mortgage Note with written evidence of cancellation on the Mortgage
Note. The Master Servicer is authorized to cause the removal from the
registration on the MERS® System of such Mortgage and to execute and deliver, on
behalf of the Trustee and the Certificateholders or any of them, any and
all
instruments of satisfaction or cancellation or of partial or full
release. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any fidelity bond or errors
or
omissions policy, or for the purposes of effecting a partial release of
any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any
84
of
the
other documents included in the Mortgage File, the Trustee shall, upon
delivery
to the Trustee of a Request for Release in the form of Exhibit M signed by
a Servicing Officer, release the Mortgage File to the Master
Servicer. Subject to the further limitations set forth below, the
Master Servicer shall cause the Mortgage File or documents so released
to be
returned to the Trustee when the need therefor by the Master Servicer no
longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof
are
deposited in the Certificate Account, in which case the Master Servicer
shall
deliver to the Trustee a Request for Release in the form of Exhibit N,
signed by a Servicing Officer.
If
the
Master Servicer at any time seeks to initiate a foreclosure proceeding
in
respect of any Mortgaged Property as authorized by this Agreement, the
Master
Servicer shall deliver or cause to be delivered to the Trustee, for signature,
as appropriate, any court pleadings, requests for trustee’s sale or other
documents necessary to effectuate such foreclosure or any legal action
brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or
to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at
law or
in equity.
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|
SECTION
3.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held
for the
Trustee.
|
Notwithstanding
any other provisions of this Agreement, the Master Servicer shall transmit
to
the Trustee as required by this Agreement all documents and instruments
in
respect of a Mortgage Loan coming into the possession of the Master Servicer
from time to time and shall account fully to the Trustee for any funds
received
by the Master Servicer or which otherwise are collected by the Master Servicer
as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries in
respect
of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or
from
Liquidation Proceeds and any Subsequent Recoveries, including but not limited
to, any funds on deposit in the Certificate Account, shall be held by the
Master
Servicer for and on behalf of the Trustee and shall be and remain the sole
and
exclusive property of the Trustee, subject to the applicable provisions
of this
Agreement. The Master Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, Distribution Account or any Escrow Account, or any
funds
that otherwise are or may become due or payable to the Trustee for the
benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, or assert by legal action
or
otherwise any claim or right of setoff against any Mortgage File or any
funds
collected on, or in connection with, a Mortgage Loan, except, however,
that the
Master Servicer shall be entitled to set off against and deduct from any
such
funds any amounts that are properly due and payable to the Master Servicer
under
this Agreement.
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|
SECTION
3.14.
|
Servicing
Compensation.
|
As
compensation for its activities hereunder, the Master Servicer shall be
entitled
to retain or withdraw from the Certificate Account an amount equal to the
Master
Servicing Fee; provided, that the aggregate Master Servicing Fee with respect
to
any Distribution Date shall be reduced (i) by an amount equal to the aggregate
of the Prepayment Interest Shortfalls, if any,
85
with
respect to such Distribution Date, but not by more than the Compensating
Interest for that Distribution Date, and (ii) with respect to the first
Distribution Date, an amount equal to any amount to be deposited into the
Distribution Account by the Depositor pursuant to Section 2.01(a) and not
so
deposited.
Additional
servicing compensation in the form of Excess Proceeds, Prepayment Interest
Excess, assumption fees, late payment charges and all income and gain net
of any
losses realized from Permitted Investments shall be retained by the Master
Servicer to the extent not required to be deposited in the Certificate
Account
pursuant to Section 3.05. The Master Servicer shall be required
to pay all expenses incurred by it in connection with its master servicing
activities hereunder (including payment of any premiums for hazard insurance
and
any Primary Insurance Policy and maintenance of the other forms of insurance
coverage required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
|
|
SECTION
3.15.
|
Access
to Certain Documentation.
|
The
Master Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders and/or Certificate Owners and
the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall
be afforded without charge, but only upon reasonable and prior written
request
and during normal business hours at the offices designated by the Master
Servicer. Nothing in this Section shall limit the obligation of the
Master Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of the Master Servicer
to
provide access as provided in this Section as a result of such obligation
shall
not constitute a breach of this Section.
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|
SECTION
3.16.
|
Annual
Statement as to Compliance.
|
(a) The
Master Servicer shall deliver to the Depositor and the Trustee on or before
March 15 of each year, commencing with its 2008 fiscal year, an Officer’s
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer
under
this Agreement has been made under such officer’s supervision and (ii) to the
best of such officer’s knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there has
been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status
thereof.
(b) The
Master Servicer shall cause each Subservicer to deliver to the Depositor
and the
Trustee on or before March 15 of each year, commencing with its 2008 fiscal
year, an Officer’s Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Subservicer during the preceding calendar
year
(or applicable portion thereof) and of the performance of the Subservicer
under
the applicable Subservicing Agreement or primary servicing agreement, has
been
made under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, such Subservicer has fulfilled all its
obligations
86
under
the
applicable Subservicing Agreement or primary servicing agreement, in all
material respects throughout such year (or applicable portion thereof),
or, if
there has been a failure to fulfill any such obligation in any material
respect,
specifying each such failure known to such officer and the nature and status
thereof.
(c) The
Trustee shall forward a copy of each such statement to each Rating
Agency.
|
|
SECTION
3.17.
|
Errors
and Omissions Insurance; Fidelity
Bonds.
|
The
Master Servicer shall for so long as it acts as master servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as
Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond
shall, together, comply with the requirements from time to time of FNMA
or FHLMC
for persons performing servicing for mortgage loans purchased by FNMA or
FHLMC. In the event that any such policy or bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy
or bond
from an insurer or issuer, meeting the requirements set forth above as
of the
date of such replacement.
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|
SECTION
3.18.
|
Notification
of Adjustments.
|
On
each
Adjustment Date, the Master Servicer shall make interest rate and scheduled
payment adjustments for each Mortgage Loan in compliance with the requirements
of the related Mortgage and Mortgage Note and applicable
regulations. The Master Servicer shall execute and deliver the
notices required by each Mortgage and Mortgage Note and applicable regulations
regarding interest rate and/or monthly payment adjustments. The
Master Servicer also shall provide timely notification to the Trustee of
all
applicable data and information regarding such interest rate or monthly
payment
adjustments and the Master Servicer’s methods of implementing such
adjustments. Upon the discovery by the Master Servicer or the Trustee
that the Master Servicer has failed to adjust or has incorrectly adjusted
a
Mortgage Rate or a monthly payment pursuant to the terms of the related
Mortgage
Note and Mortgage, the Master Servicer shall immediately deposit in the
Certificate Account from its own funds the amount of any interest and/or
principal loss caused thereby without reimbursement therefor; provided,
however,
the Master Servicer shall be held harmless with respect to any interest
rate
and/or monthly payment adjustments made by any servicer prior to the Master
Servicer.
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|
SECTION
3.19.
|
The
Swap Contracts.
|
The
Trustee’s rights to receive certain proceeds of each Swap Contract as provided
in the Swap Contract Administration Agreement shall be rights of the Trustee
as
the Swap Trustee hereunder, shall be an asset of the Swap Trust and shall
not be
an asset of the Trust Fund or of any REMIC. The Swap Trustee shall
deposit any amounts received from time to time from the Swap Contract
Administrator with respect to each Swap Contract into the related Swap
Account.
On
the
Business Day preceding each Distribution Date, the Swap Trustee shall notify
the
Swap Contract Administrator of any amounts distributable to the Certificate
Swap
Certificates pursuant to Section 4.02(d)(3) through (8) that will remain
unpaid
following all distributions to be made on such Distribution Date pursuant
to
Section 4.02(a) through (c).
87
No
later
than two Business Days following each Distribution Date, the Trustee shall
provide the Swap Contract Administrator with information regarding the
Class
Certificate Balance of the Class A-1-B Certificates after all distributions
on
such Distribution Date.
Upon
the
Swap Contract Administrator obtaining actual knowledge of a Collateral
Event (as
defined in the related ISDA Master Agreement), the Swap Trustee shall direct
the
Swap Contract Administrator to (i) demand delivery of the Delivery Amount
(as
defined in the related ISDA Master Agreement) from the related Swap Counterparty
on each Valuation Date (as defined in the related ISDA Master Agreement),
if
applicable, (ii) deliver to the related Swap Counterparty the Return Amount
(as
defined in the related ISDA Master Agreement) on each Valuation Date, if
applicable, as well as Distributions and the Interest Amount (each as defined
in
the related ISDA Master Agreement), to the extent required under that ISDA
Master Agreement and (iii) take such other action required under the related
ISDA Master Agreement. If a Delivery Amount is demanded, the Swap
Contract Administrator, in accordance with the Swap Contract Administration
Agreement, shall open and maintain a segregated account meeting the requirements
set forth in the related ISDA Master Agreement. Any cash or other
Eligible Collateral (as defined in the related ISDA Master Agreement) pledged
under the related ISDA Master Agreement shall not be part of the Distribution
Account or any Swap Account unless remitted to such accounts by the Swap
Contract Administrator in accordance with the Swap Contract Administration
Agreement. If Eligible Collateral with a Value (as defined in the
related ISDA Master Agreement) equal to the Delivery Amount is not delivered
to
the Swap Contract Administrator by the related Swap Counterparty, the Swap
Trustee shall direct the Swap Contract Administrator to notify the related
Swap
Counterparty and Countrywide of such failure.
Upon
the
Swap Trustee obtaining actual knowledge of an Event of Default or Termination
Event (each as defined in the related ISDA Master Agreement) for which
the Swap
Contract Administrator has the right to designate an Early Termination
Date (as
defined in the related ISDA Master Agreement), the Swap Trustee shall act
at the
written direction of Countrywide as to whether to direct the Swap Contract
Administrator to designate an Early Termination Date; provided, however,
that
following such Event of Default or Termination Event and before directing
the
Swap Contract Administrator to designate an Early Termination Date, the
Swap
Trustee shall provide written notice to each Rating Agency. Following
the designation of an Early Termination Date, (i) the Swap Trustee shall
use its
reasonable best efforts to enforce the rights of the Swap Contract Administrator
under the related ISDA Master Agreement and consistent with the terms hereof,
(ii) Countrywide shall assist the Swap Contract Administrator in procuring
a
replacement swap contract with terms that are substantially the same as
those of
the original Swap Contract and (iii) the Swap Trustee shall direct the
Swap
Contract Administrator to request the related Swap Counterparty to assist
in
procuring a replacement swap contract with terms that are substantially
the same
as those of the original Swap Contract.
Any
Swap
Termination Payment received from a Swap Counterparty shall be used to
pay any
upfront amount required under any replacement swap contract and any excess
shall
be distributed to Countrywide and will not be available to make distributions
in
respect of any Class of Certificates. In the event that a replacement
swap contract cannot be procured, any Swap Termination Payment received
from a
Swap Counterparty in respect of the termination of the original Swap Contract
shall, in accordance with the Swap Contract Administration Agreement,
88
be
retained by the Swap Contract Administrator and remitted to the Swap Trustee
on
subsequent Distribution Dates up to and including the related Swap Contract
Termination Date (i) in the case of a Certificate Swap Termination Payment,
to
pay any amounts distributable to the Certificate Swap Certificates pursuant
to
Section 4.02(d)(3) through (8) that will remain unpaid following all
distributions to be made on such Distribution Date pursuant to Section
4.02(a)
through (c) and (ii) in the case of a Class A-1-B Swap Termination Payment,
to
pay any amounts distributable to the Class A-1-B Certificates pursuant
to
Section 4.02(e) following all distributions to be made on such Distribution
Date
pursuant to Section 4.02(a) through (d). Any portion of such Swap
Termination Payment remaining after the related Swap Contract Termination
Date
shall be distributed to Countrywide and will not be available to make
distributions in respect of any Class of Certificates.
In
the
event that the swap counterparty in respect of a replacement swap contract
pays
any upfront amount to the Swap Contract Administrator in connection with
entering into the replacement swap contract and such upfront amount is
received
by the Swap Contract Administrator prior to the Distribution Date on which
any
Swap Termination Payment will be payable to the related Swap Counterparty
in
respect of the original Swap Contract, a portion of that upfront amount
equal to
the lesser of (x) that upfront amount and (y) the amount of the Swap Termination
Payment due to the related Swap Counterparty in respect of the original
Swap
Contract (the “Adjusted Replacement Upfront Amount”) shall be included in
Interest Funds for that Distribution Date, and any upfront amount in excess
of
the Adjusted Replacement Upfront Amount shall be distributed to Countrywide
and
will not be available to make distributions in respect of any Class of
Certificates. If any upfront amount is paid to the Swap Contract
Administrator by the swap counterparty in respect of a replacement swap
contract
after the Distribution Date on which any Swap Termination Payment will
be
payable to the related Swap Counterparty in respect of the original Swap
Contract, such upfront amount shall be retained by the Swap Contract
Administrator and remitted to the Swap Trustee on subsequent Distribution
Dates
up to and including the related Swap Contract Termination Date (i) in the
case
of the Certificate Swap Contract, to pay any amounts distributable to the
Certificate Swap Certificates pursuant to Section 4.02(d)(3) through (8)
that
will remain unpaid following all distributions to be made on such Distribution
Date pursuant to Section 4.02(a) through (c) and (ii) in the case of the
Class
A-1-B Swap Contract, to pay any amounts distributable to the Class A-1-B
Certificates pursuant to Section 4.02(e) following all distributions to
be made
on such Distribution Date pursuant to Section 4.02(a) through (d).
Each
Swap
Counterparty shall be an express third party beneficiary of this Agreement
for
the purpose of enforcing the provisions hereof to the extent of such Swap
Counterparty’s rights explicitly specified herein as if a party
hereto.
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SECTION
3.20.
|
Prepayment
Charges.
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(a) Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Master Servicer may
not
waive any Prepayment Charge or portion thereof required by the terms of
the
related Mortgage Note unless (i) such Mortgage Loan is in default or the
Master
Servicer believes that such a default is imminent, and the Master Servicer
determines that such waiver would maximize recovery of Liquidation Proceeds
for
such Mortgage Loan, taking into account the value of such Prepayment
89
Charge,
or (ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights
generally or (2) due to acceleration in connection with a foreclosure or
other
involuntary payment, or (B) the enforceability is otherwise limited or
prohibited by applicable law. In the event of a Principal Prepayment
in full or in part with respect to any Mortgage Loan, the Master Servicer
shall
deliver to the Trustee an Officer’s Certificate substantially in the form of
Exhibit T no later than the third Business Day following the immediately
succeeding Determination Date with a copy to the Class C-P
Certificateholders. If the Master Servicer has waived or does not
collect all or a portion of a Prepayment Charge relating to a Principal
Prepayment in full or in part due to any action or omission of the Master
Servicer, other than as provided above, the Master Servicer shall deliver
to the
Trustee, together with the Principal Prepayment in full or in part, the
amount
of such Prepayment Charge (or such portion thereof as had been waived)
for
deposit into the Certificate Account (not later than 1:00 p.m. Pacific
time on
the immediately succeeding Master Servicer Advance Date, in the case of
such
Prepayment Charge) for distribution in accordance with the terms of this
Agreement.
(b) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee
of a
breach of the foregoing subsection (a), the party discovering the breach
shall
give prompt written notice to the other parties.
(c) Countrywide
represents and warrants to the Depositor and the Trustee, as of the Closing
Date, that the information contained in clauses (xxi), (xxii) and (xxiii)
of the
Mortgage Loan Schedule is complete and accurate in all material respects
at the
dates as of which the information is furnished and each Prepayment Charge
is
permissible and enforceable in accordance with its terms under applicable
state
law, except as the enforceability thereof is limited due to acceleration
in
connection with a foreclosure or other involuntary payment.
(d) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee
of a
breach of the foregoing clause (c) that materially and adversely affects
the
right of the Holders of the Class C-P Certificates to any Prepayment
Charge, the party discovering the breach shall give prompt written notice
to the
other parties. Within 60 days of the earlier of discovery by the Master
Servicer
or receipt of notice by the Master Servicer of breach, the Master Servicer
shall
cure the breach in all material respects or shall pay into the Certificate
Account the amount of the Prepayment Charge that would otherwise be due
from the
Mortgagor, less any amount representing such Prepayment Charge previously
collected and paid by the Master Servicer into the Certificate
Account.
90
ARTICLE
IV
DISTRIBUTIONS
AND
ADVANCES
BY THE MASTER SERVICER
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|
SECTION
4.01.
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Advances.
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(a) The
Master Servicer shall determine on or before each Master Servicer Advance
Date
whether it is required to make an Advance pursuant to the definition
thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master Servicer Advance Date, either
(i) deposit into the Certificate Account an amount equal to the Advance or
(ii) make an appropriate entry in its records relating to the Certificate
Account that any Amount Held for Future Distribution has been used by the
Master
Servicer in discharge of its obligation to make any such Advance. Any
funds so applied shall be replaced by the Master Servicer by deposit in
the
Certificate Account no later than the close of business on the next Master
Servicer Advance Date. The Master Servicer shall be entitled to be
reimbursed from the Certificate Account for all Advances of its own funds
made
pursuant to this Section as provided in Section 3.08. The
obligation to make Advances with respect to any Mortgage Loan shall continue
if
such Mortgage Loan has been foreclosed or otherwise terminated and the
related
Mortgaged Property has not been liquidated.
(b) If
the Master Servicer determines that it will be unable to comply with its
obligation to make the Advances as and when described in the second sentence
of
Section 4.01(a), it shall use its best efforts to give written notice thereof
to
the Trustee (each such notice a “Trustee Advance Notice”; and such notice may be
given by telecopy), not later than 3:00 P.M., New York time, on the Business
Day
immediately preceding the related Master Servicer Advance Date, specifying
the
amount that it will be unable to deposit (each such amount an “Advance
Deficiency”) and certifying that such Advance Deficiency constitutes an Advance
hereunder and is not a Nonrecoverable Advance. If the Trustee
receives a Trustee Advance Notice on or before 3:30 P.M., New York time
on a
Master Servicer Advance Date, the Trustee shall, not later than 3:00 P.M.,
New
York time, on the related Distribution Date, deposit in the Distribution
Account
an amount equal to the Advance Deficiency identified in such Trustee Advance
Notice unless it is prohibited from so doing by applicable
law. Notwithstanding the foregoing, the Trustee shall not be required
to make such deposit if the Trustee shall have received written notification
from the Master Servicer that the Master Servicer has deposited or caused
to be
deposited in the Certificate Account an amount equal to such Advance
Deficiency. All Advances made by the Trustee pursuant to this Section
4.01(b) shall accrue interest on behalf of the Trustee at the Trustee Advance
Rate from and including the date such Advances are made to but excluding
the
date of repayment, with such interest being an obligation of the Master
Servicer
and not the Trust Fund. The Master Servicer shall reimburse the
Trustee for the amount of any Advance made by the Trustee pursuant to this
Section 4.01(b) together with accrued interest, not later than the fifth
day
following the related Master Servicer Advance Date. In the event that
the Master Servicer does not reimburse the Trustee in accordance with the
requirements of the preceding sentence, the Trustee shall have the right,
but
not the obligation, to immediately (a) terminate all of the rights and
obligations of the Master Servicer under this Agreement in accordance with
Section 7.01 and (b) subject to the limitations set forth in Section 3.04,
assume all of the rights and obligations of the Master Servicer
hereunder.
91
(c) The
Master Servicer shall, not later than the close of business on the second
Business Day immediately preceding each Distribution Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the
Trustee)
that indicates (i) the Mortgage Loans with respect to which the Master
Servicer
has determined that the related Scheduled Payments should be advanced and
(ii)
the amount of the related Scheduled Payments. The Master Servicer
shall deliver to the Trustee on the related Master Servicer Advance Date
an
Officer’s Certificate of a Servicing Officer indicating the amount of any
proposed Advance determined by the Master Servicer to be a Nonrecoverable
Advance.
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SECTION
4.02.
|
Priorities
of Distribution.
|
(a) Distributions
of Interest Funds. On each Distribution Date, the Interest Funds
for such Distribution Date shall be distributed by the Trustee from the
Distribution Account in the following order:
(1) to
the Certificate Swap Account, the amount of any Net Certificate Swap Payment
and
any Certificate Swap Termination Payment (other than a Certificate Swap
Termination Payment due to a Swap Counterparty Trigger Event) payable to
the
Certificate Swap Counterparty for that Distribution Date;
(2) concurrently
and on a pro rata basis based on their respective entitlements, as
follows:
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(a)
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prior
to the termination of the Class A-1-B Swap Contract, to the Class
A-1-B
Swap Account, the amount of the Class A-1-B Swap Fee payable
to the Class
A-1-B Swap Counterparty for that Distribution
Date;
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(b)
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concurrently,
to each Class of Senior Certificates, the respective Current
Interest and
Interest Carry Forward Amounts for that Distribution Date, provided,
however, that prior to the termination of the Class A-1-B Swap
Contract, any amounts of Current Interest and Interest Carry
Forward
Amounts that would be distributed to the Class A-1-B Certificates
in the
absence of the Class A-1-B Swap Contract will instead be distributed
to
the Class A-1-B Swap Account and, provided further, if a Class
A-1-B Swap Termination Payment (other than a Class A-1-B Swap
Termination
Payment due to a Class A-1-B Swap Counterparty Trigger Event)
is due to
the Class A-1-B Swap Counterparty, then any amounts of Current
Interest
and Interest Carry Forward Amount that would be distributed to
the Class
A-1-B Certificates in the absence of such Class A-1-B Swap Termination
Payment will instead be distributed, up to the amount of such
Class A-1-B
Swap Termination Payment, to the Class A-1-B Swap Account;
and;
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(c)
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prior
to the termination of the Class A-1-B Swap Contract, to the Class
A-1-B
Swap Account, current interest and interest carry forward
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92
amounts
on the Class A-1-B Swap Principal Amount at the
Pass-Through Rate for the Class A-1-B Certificates for that Distribution
Date;
(3) [Reserved]
(4) sequentially,
to the Class M-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6
and
Class M-7 Certificates, in that order, the Current Interest for each such
Class
and such Distribution Date; and
(5) any
remainder as part of the Excess Cashflow.
(b) Distributions
of Principal Distribution Amount. On each Distribution Date, the
Principal Distribution Amount for such Distribution Date shall be distributed
by
the Trustee from the Distribution Account in the following order (with
the
Principal Distribution Amount exclusive of the portion thereof consisting
of the
Extra Principal Distribution Amount being applied first and the Extra Principal
Distribution Amount being applied thereafter):
(1) For
each Distribution Date prior to the Stepdown Date or on which a Trigger
Event is
in effect, in the following order:
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(a)
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to
the Class A-R Certificates, until its Class Certificate Balance
is reduced
to zero;
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(b)
|
concurrently
and on a pro rata basis based on (1) the Class A-1-B Swap Principal
Amount, if any, immediately prior to such Distribution Date and
(2) the
aggregate Class Certificate Balance of the Class A-1-A, Class
A-1-B, Class
A-2 and Class A-3 Certificates immediately prior to such Distribution
Date
as follows:
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i.
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to
the Class A-1-B Swap Account, an amount up to the Class A-1-B
Swap
Principal Amount; and
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ii.
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concurrently,
to the Class A-1-A, Class A-1-B, Class A-2 and Class A-3 Certificates,
pro
rata, until their respective Class Certificate Balances are reduced
to
zero; and
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(c)
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sequentially,
to the Class M-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6
and Class M-7 Certificates, in that order, until their respective
Class
Certificate Balances are reduced to zero;
and
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(d)
|
any
remainder as part of the Excess Cashflow;
and
|
(2) For
each Distribution Date on or after the Stepdown Date and so long as a Trigger
Event is not in effect, sequentially:
93
|
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(a)
|
in
an amount up to the Senior Principal Distribution Target Amount
concurrently and on a pro rata basis based on (1) the Class A-1-B
Swap
Principal Amount, if any, immediately prior to such Distribution
Date and
(2) the aggregate Class Certificate Balance of the Class A-1-A,
Class
A-1-B, Class A-2 and Class A-3 Certificates immediately prior
to such
Distribution Date, as follows:
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i.
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to
the Class A-1-B Swap Account, an amount up to the Class A-1-B
Swap
Principal Amount; and
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ii.
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concurrently,
to the Class A-1-A, Class A-1-B, Class A-2 and Class A-3 Certificates,
pro
rata, until their respective Class Certificate Balances are reduced
to
zero;
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(b)
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sequentially,
to the Class M-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6
and Class M-7 Certificates, in that order, the Subordinated Class
Principal Distribution Target Amount for each such Class, in
each case
until its Class Certificate Balance is reduced to zero;
and
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(c)
|
any
remainder as part of the Excess
Cashflow.
|
(c) Distributions
of Excess Cashflow. With respect to any Distribution Date, any
Excess Cashflow will be distributed to the Classes of Certificates and
deposited
in the Swap Accounts in the following order, in each case to the extent
of
remaining Excess Cashflow:
(1) to
the Class A-1-B Swap Account (up to the Class A-1-B Swap Principal Amount)
and
to the Classes of Certificates then entitled to receive distributions in
respect
of principal, in an amount equal to the Extra Principal Distribution Amount,
payable as part of the Principal Distribution Amount pursuant to Section
4.02(b)
hereof;
(2) to
the Class A-1-A, Class A-1-B, Class A-2 and Class A-3 Certificates and
to the
Class A-1-B Swap Account in the following order:
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(a)
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concurrently,
to the Class A-1-A and Class A-1-B Certificates and to the Class
A-1-B
Swap Account, pro rata based on the Unpaid Realized Loss Amount
for each
such Class and the Class A-1-B Swap Principal Amount, respectively,
in an
amount up to the Unpaid Realized Loss Amount for such Class and
such Class
A-1-B Swap Principal Amount,
respectively;
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(b)
|
to
the Class A-2 Certificates, in an amount up to the Unpaid Realized
Loss
Amount for such Class; and
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|
(c)
|
to
the Class A-3 Certificates, in an amount up to the Unpaid Realized
Loss
Amount for such Class;
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94
(3) sequentially,
to the Class M-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6
and
Class M-7 Certificates, in that order, in each case, first, in an amount
up to
any remaining Current Interest and Interest Carry Forward Amount for each
such
Class and such Distribution Date and then in an amount up to the Unpaid
Realized
Loss Amount for each such Class;
(4) to
the Carryover Reserve Fund and then from the Carryover Reserve Fund,
concurrently, to the Classes of LIBOR Certificates, pro rata based on their
respective Class Certificate Balances to the extent needed to pay any Net
Rate
Carryover for each such Class; and then any Excess Cashflow remaining after
such
allocation to pay Net Rate Carryover based on Class Certificate Balances
of the
LIBOR Certificates will be distributed to each Class of LIBOR Certificates
with
respect to which there remains any unpaid Net Rate Carryover, pro rata,
based on
the amount of such unpaid Net Rate Carryover; provided, however, that
prior to the termination the Class A-1-B Swap Contract, any amount of Net
Rate
Carryover that would be distributed to the Class A-1-B Certificates in
the
absence of the Class A-1-B Swap Contract shall instead be distributed to
the
Class A-1-B Swap Account and, provided further, if a Class A-1-B Swap
Termination Payment (other than a Class A-1-B Swap Termination Payment
due to a
Swap Counterparty Trigger Event of the related Swap Counterparty) is due
to the
Class A-1-B Swap Counterparty, then any amount of Net Rate Carryover that
would
be distributed to the Class A-1-B Certificates in the absence of such Class
A-1-B Swap Termination Payment will instead be distributed, up to the amount
of
such Class A-1-B Swap Termination Payment, to the Class A-1-B Swap
Account;
(5) concurrently,
to the Certificate Swap Account and the Class A-1-B Swap Account, up to
the
amount of any unpaid Certificate Swap Termination Payment and unpaid Class
A-1-B
Swap Termination Payment due to the Certificate Swap Counterparty and the
Class
A-1-B Swap Counterparty, respectively, as a result of a Swap Counterparty
Trigger Event of the related Swap Counterparty, pro rata, based upon the
respective amounts of such unpaid payments;
(6) to
the Class C-P Certificates, in an amount up to the Class C-P Distributable
Amount for such Distribution Date; and
(7) to
the Class A-R Certificates.
(d) On
each Distribution Date on or prior to the Certificate Swap Contract Termination
Date, following all deposits to the Certificate Swap Account and the
distributions described under Sections 4.02(a) - (c), the Certificate Swap
Trustee shall distribute amounts on deposit in the Certificate Swap Account
in
the following amounts and order:
(1) to
the Swap Contract Administrator for payment to the Certificate Swap
Counterparty, any Net Certificate Swap Payment payable to the Certificate
Swap
Counterparty with respect to that Distribution Date;
(2) to
the Swap Contract Administrator for payment to the Certificate Swap
Counterparty, any Certificate Swap Termination Payment (other than a Certificate
Swap
95
Termination
Payment due to a Swap Counterparty Trigger Event of the related Swap
Counterparty) payable to the Certificate Swap Counterparty with respect
to that
Distribution Date;
(3) concurrently,
to the Class A-1-A, Class A-1-B, Class A-2 and Class A-3 Certificates,
any
remaining Current Interest and Interest Carry Forward Amounts and, prior
to the
termination of the Class A-1-B Swap Contract, to the Class A-1-B Swap Account,
any remaining current interest and interest carry forward amounts on the
Class
A-1-B Swap Principal Amount at the Pass-Through Rate for the Class A-1-B
Certificates for that Distribution Date, pro rata based on their respective
entitlements; provided, however, that prior to the termination of the Class
A-1-B Swap Contract, any amounts of remaining Current Interest and Interest
Carry Forward Amounts that would be distributed to the Class A-1-B Certificates
in the absence of the Class A-1-B Swap Contract will instead be distributed
to
the Class A-1-B Swap Account and, provided further, if a Class A-1-B Swap
Termination Payment (other than a Class A-1-B Swap Termination Payment
due to a
Swap Counterparty Trigger Event of the related Swap Counterparty) is due
to the
Class A-1-B Swap Counterparty, then any amounts of remaining Current Interest
and Interest Carry Forward Amount that would be distributed to the Class
A-1-B
Certificates in the absence of such Class A-1-B Swap Termination Payment
will
instead be distributed, up to the amount of such Class A-1-B Swap Termination
Payment, to the Class A-1-B Swap Account;
(4) sequentially,
to the Class M-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6
and
Class M-7 Certificates, in that order, in each case in an amount equal
to any
remaining Current Interest and Interest Carry Forward Amount for the
Class;
(5) to
the Class A-1-B Swap Account (up to the Class A-1-B Swap Principal Amount)
and
to the Classes of Certificates then entitled to receive distributions in
respect
of principal, in an aggregate amount equal to the Overcollateralization
Deficiency Amount remaining unpaid following the distribution of Excess
Cashflow
payable in the same manner in which the Extra Principal Distribution Amount
would be distributed;
(6) concurrently,
to each Class of LIBOR Certificates, pro rata based on their respective
amounts
of unpaid Net Rate Carryover, to the extent needed to pay any remaining
Net Rate
Carryover for each such Class; provided, however, that prior to the termination
of the Class A-1-B Swap Contract, any amount of remaining Net Rate Carryover
that would be distributed to the Class A-1-B Certificates in the absence
of the
Class A-1-B Swap Contract will instead be distributed to the Class A-1-B
Swap
Account and, provided further, if a Class A-1-B Swap Termination Payment
(other
than a Class A-1-B Swap Termination Payment due to a Swap Counterparty
Trigger
Event of the related Swap Counterparty) is due to the Class A-1-B Swap
Counterparty, then any amount of remaining Net Rate Carryover that would
be
distributed to the Class A-1-B Certificates in the absence of such Class
A-1-B
Swap Termination Payment will instead be distributed, up to the amount
of such
Class A-1-B Swap Termination Payment, to the Class A-1-B Swap
Account;
96
(7) to
the Class A-1-A, Class A-1-B, Class A-2 and Class A-3 Certificates and
to the
Class A-1-B Swap Account in the following order:
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(a)
|
concurrently,
to the Class A-1-A and Class A-1-B Certificates and to the Class
A-1-B
Swap Account, pro rata based on the remaining Unpaid Realized
Loss Amount
for each such Class and the Class A-1-B Swap Principal Amount,
respectively, in an amount up to the remaining Unpaid Realized
Loss Amount
for such Class and such Swap Principal Amount,
respectively;
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(b)
|
to
the Class A-2 Certificates, in an amount up to the remaining
Unpaid
Realized Loss Amount for such Class;
and
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|
(c)
|
to
the Class A-3 Certificates, in an amount up to the remaining
Unpaid
Realized Loss Amount for such
Class;
|
(8) sequentially,
to the Class M-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6
and
Class M-7 Certificates, in that order, in each case, in an amount up to
the
remaining Unpaid Realized Loss Amount for such Class; and
(9) to
the Swap Contract Administrator for payment to the Certificate Swap
Counterparty, only to the extent necessary to cover any Certificate Swap
Termination Payment due to a Swap Counterparty Trigger Event of the related
Swap
Counterparty payable to the Certificate Swap Counterparty with respect
to that
Distribution Date.
(e) On
each Distribution Date with respect to the Class A-1-B Swap Contract on
or prior
to the Class A-1-B Swap Contract Termination Date, following all deposits
to the
Class A-1-B Swap Account and the distributions described under Sections
4.02(a)
- (d), the Class A-1-B Swap Trustee shall distribute amounts on deposit
in each
Class A-1-B Swap Account in the following amounts and order:
(1) to
the Swap Contract Administrator for payment to the Class A-1-B Swap
Counterparty, any Class A-1-B Net Swap Payment payable to the Class A-1-B
Swap
Counterparty with respect to such Distribution Date;
(2) to
the Swap Contract Administrator for payment to the Class A-1-B Swap
Counterparty, any Class A-1-B Swap Termination Payment (other than a Class
A-1-B
Swap Termination Payment due to a Swap Counterparty Trigger Event of the
related
Swap Counterparty) payable to the Class A-1-B Swap Counterparty with respect
to
such Distribution Date;
(3) to
the Class A-1-B Certificates, an amount equal to the product of (i) the
sum of
(a) LIBOR and (b) the Pass-Through Margin for the Class A-1-B Certificates
for
such Distribution Date, (ii) the Class Certificate Balance of the Class
A-1-B
Certificates immediately prior to such Distribution Date and (iii) the
actual
number of days in the related Interest Accrual Period divided by 360;
and
97
(4) to
the Swap Contract Administrator for payment to the Class A-1-B Swap
Counterparty, any Class A-1-B Swap Termination Payment due to a Swap
Counterparty Trigger Event of the related Swap Counterparty payable to
the Class
A-1-B Swap Counterparty with respect to such Distribution Date.
(f) To
the extent that a Class of LIBOR Certificates receives interest in excess
of the
related Net Rate Cap, if such interest is paid pursuant to Section 4.02(c),
then
it shall be deemed to have been paid to the Carryover Reserve Fund and
then paid
by the Carryover Reserve Fund to those Certificateholders, and if such
interest
is paid pursuant to Section 4.02(d), then such interest shall be deemed
to have
been paid to the Certificate Swap Account and then paid by the Certificate
Swap
Account to those Certificateholders. For purposes of the Code,
amounts deemed deposited in the Carryover Reserve Fund shall be deemed
to have
first been distributed to the Class C-P Certificates.
(g) On
each Distribution Date, the Prepayment Charge Amount shall be distributed
to the
Class C-P Certificates.
(h) Application
of Applied Realized Loss Amounts. On each Distribution Date, the
Trustee shall allocate the Applied Realized Loss Amount to reduce the applicable
Class Certificate Balances or the Class A-1-B Swap Principal Amount, as
applicable, in the following order of priority: (1) sequentially, to the
Class
M-0, Xxxxx X-0, Class M-5, Class M-4, Class M-3, Class M-2 and Class M-1
Certificates, in that order, until their respective Class Certificate Balances
are reduced to zero; (2) to the Class A-3 Certificates, until its Class
Certificate Balance is reduced to zero; (3) to the Class A-2 Certificates,
until
its Class Certificate Balance is reduced to zero; and (4) concurrently,
to the
Class A-1-A and Class A-1-B Certificates and the Class A-1-B Swap Principal
Amount, pro rata, based on the Class Certificate Balance or Class A-1-B
Swap
Principal Amount, as applicable, until each Class Certificate Balance or
Class
A-1-B Swap Principal Amount is reduced to zero.
(i) Application
of Subsequent Recoveries. If Subsequent Recoveries have been
received with respect to a Liquidated Mortgage Loan, the amount of such
Subsequent Recoveries will be applied to increase the applicable Class
Certificate Balances or the Class A-1-B Swap Principal Amount, as applicable,
in
the following order of priority: (1) concurrently, to the Class A-1-A and
Class
A-1-B Certificates and the Class A-1-B Swap Principal Amount, if any, pro
rata
based on their respective Unpaid Realized Loss Amounts, in an amount up
to their
respective Unpaid Realized Loss Amounts; (2) to the Class A-2 Certificates
in an
amount up to its respective Unpaid Realized Loss Amount; (3) to the Class
A-3
Certificates, in an amount up to its respective Unpaid Realized Loss Amount;
and
(4) sequentially, to the Class M-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5,
Class M-6 and Class M-7 Certificates, in that order, in an amount up to
their
respective Unpaid Realized Loss Amounts.
Holders
of such Certificates will not be entitled to any payment in respect of
Current
Interest on the amount of such increases for any Interest Accrual Period
preceding the Distribution Date on which such increase occurs. Any
such increases shall be applied pro rata to the Certificate Balance of
each
Certificate of such Class.
98
The
Swap
Counterparty will not be entitled to any payment in respect of interest
on the
Class A-1-B Swap Principal Amount at the related Pass-Through Rate on the
amount
of such increases for any Interest Accrual Period preceding the Distribution
Date on which such increase occurs.
SECTION
4.03. Allocation
of Net Deferred Interest.
(a) For
any Distribution Date, Net Deferred Interest will be allocated among the
Classes
of interest bearing Certificates in an amount equal to the excess, if any,
of:
(i) the amount of interest that accrued on such Class of Certificates at
its
respective Pass-Through Rate during the Interest Accrual Period related
to that
Distribution Date over (ii) the amount of interest that accrued on such
Class of
Certificates at its respective Adjusted Cap Rate during the Interest Accrual
Period related to that Distribution Date.
(b) Any
Net Deferred Interest allocated to a Class of Certificates will be added
to the
Class Certificate Balance of such Class of Certificates; provided, however,
that
for so long as the Class A-1-B Swap Contract is in effect, any Net Deferred
Interest allocated to the Class A-1-B Certificates will not increase the
Class
Certificate Balance of the Class A-1-B Certificates but will instead increase
the Class A-1-B Swap Principal Amount.
|
|
SECTION
4.04.
|
[Reserved].
|
|
|
SECTION
4.05.
|
[Reserved].
|
|
|
SECTION
4.06.
|
Monthly
Statements to
Certificateholders.
|
(a) Concurrently
with each distribution on a Distribution Date, the Trustee will forward
by mail
to each Rating Agency and make available to Certificateholders on the Trustee’s
website (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting
forth the information contained in Exhibit U.
(b) The
Trustee’s responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy
of
the information provided by the Master Servicer.
(c) On
or before the fifth Business Day following the end of each Prepayment Period
(but in no event later than the third Business Day prior to the related
Distribution Date), the Master Servicer shall deliver to the Trustee (which
delivery may be by electronic data transmission) a report in substantially
the
form set forth as Schedule VI hereto.
(d) Within
a reasonable period of time after the end of each calendar year, the Trustee
shall cause to be furnished to each Person who at any time during the calendar
year was a Certificateholder, a statement containing the information set
forth
in items (1), (2) and (7) of Exhibit U aggregated for such calendar year
or
applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code
as
from time to time in effect.
99
|
|
SECTION
4.07.
|
Determination
of Pass-Through Rates for COFI
Certificates.
|
The
Pass-Through Rate for each Class of COFI Certificates for each Interest
Accrual
Period after the initial Interest Accrual Period shall be determined by
the
Trustee as provided below on the basis of the Index and the applicable
formulae
appearing in footnotes corresponding to the COFI Certificates in the table
relating to the Certificates in the Preliminary Statement.
Except
as
provided below, with respect to each Interest Accrual Period following
the
initial Interest Accrual Period, the Trustee shall not later than two Business
Days prior to such Interest Accrual Period but following the publication
of the
applicable Index determine the Pass-Through Rate at which interest shall
accrue
in respect of the COFI Certificates during the related Interest Accrual
Period.
Except
as
provided below, the Index to be used in determining the respective Pass-Through
Rates for the COFI Certificates for a particular Interest Accrual Period
shall
be COFI for the second calendar month preceding the Outside Reference Date
for
such Interest Accrual Period. If at the Outside Reference Date for
any Interest Accrual Period, COFI for the second calendar month preceding
such
Outside Reference Date has not been published, the Trustee shall use COFI
for
the third calendar month preceding such Outside Reference Date. If
COFI for neither the second nor third calendar months preceding any Outside
Reference Date has been published on or before the related Outside Reference
Date, the Index for such Interest Accrual Period and for all subsequent
Interest
Accrual Periods shall be the National Cost of Funds Index for the third
calendar
month preceding such Interest Accrual Period (or the fourth preceding calendar
month if such National Cost of Funds Index for the third preceding calendar
month has not been published by such Outside Reference Date). In the
event that the National Cost of Funds Index for neither the third nor fourth
calendar months preceding an Interest Accrual Period has been published
on or
before the related Outside Reference Date, then for such Interest Accrual
Period
and for each succeeding Interest Accrual Period, the Index shall be LIBOR,
determined in the manner set forth below.
With
respect to any Interest Accrual Period for which the applicable Index is
LIBOR,
LIBOR for such Interest Accrual Period will be established by the Trustee
on the
related Interest Determination Date as provided in Section 4.08.
In
determining LIBOR and any Pass-Through Rate for the COFI Certificates or
any
Reserve Interest Rate, the Trustee may conclusively rely and shall be protected
in relying upon the offered quotations (whether written, oral or on the
Reuters
Screen) from the Reference Banks or the New York City banks as to LIBOR
or the
Reserve Interest Rate, as appropriate, in effect from time to
time. The Trustee shall not have any liability or responsibility to
any Person for (i) the Trustee’s selection of New York City banks for purposes
of determining any Reserve Interest Rate or (ii) its inability, following
a
good-faith reasonable effort, to obtain such quotations from the Reference
Banks
or the New York City banks or to determine such arithmetic mean, all as
provided
for in this Section 4.07.
100
The
establishment of LIBOR and each Pass-Through Rate for the COFI Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate and the Trustee.
|
|
SECTION
4.08.
|
Determination
of Pass-Through Rates for LIBOR
Certificates.
|
(a) On
each Interest Determination Date, so long as any LIBOR Certificates or
Swap
Certificates are Outstanding, the Trustee will determine LIBOR on the basis
of
the British Bankers’ Association (“BBA”) “Interest Settlement Rate” for
one-month deposits in U.S. dollars as quoted on the “BBAM” page of the Bloomberg
Terminal.
(b) If
on any Interest Determination Date, LIBOR cannot be determined as provided
in
paragraph (a) of this Section 4.08, the Trustee shall either (i) request
each
Reference Bank to inform the Trustee of the quotation offered by its principal
London office for making one-month United States dollar deposits in leading
banks in the London interbank market, as of 11:00 a.m. (London time) on
such
Interest Determination Date or (ii) in lieu of making any such request,
rely on
such Reference Bank quotations that appear at such time on the Reuters
Screen
LIBO Page (as defined in the International Swap Dealers Association Inc.
Code of
Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition),
to the
extent available. LIBOR for a Class of LIBOR Certificates for the
next Interest Accrual Period will be established by the Trustee on each
Interest
Determination Date as follows:
(i) If
on any Interest Determination Date two or more Reference Banks provide
such
offered quotations, LIBOR for the next applicable Interest Accrual Period
shall
be the arithmetic mean of such offered quotations (rounding such arithmetic
mean
upwards if necessary to the nearest whole multiple of 1/32%).
(ii) If
on any Interest Determination Date only one or none of the Reference Banks
provides such offered quotations, LIBOR for the next Interest Accrual Period
shall be whichever is the higher of (i) LIBOR as determined on the previous
Interest Determination Date or (ii) the Reserve Interest Rate. The
“Reserve Interest Rate” shall be the rate per annum which the Trustee determines
to be either (i) the arithmetic mean (rounded upwards if necessary to the
nearest whole multiple of 1/32%) of the one-month United States dollar
lending
rates that New York City banks selected by the Trustee are quoting, on
the
relevant Interest Determination Date, to the principal London offices of
at
least two of the Reference Banks to which such quotations are, in the opinion
of
the Trustee, being so made, or (ii) in the event that the Trustee can determine
no such arithmetic mean, the lowest one-month United States dollar lending
rate
which New York City banks selected by the Trustee are quoting on such Interest
Determination Date to leading European banks.
(iii) If
on any Interest Determination Date the Trustee is required but is unable
to
determine the Reserve Interest Rate in the manner provided in paragraph
(b)
above, LIBOR for the related Classes of Certificates shall be LIBOR as
determined on the preceding applicable Interest Determination
Date. If on the initial Interest Determination Date the Trustee is
required but unable to determine LIBOR in the manner provided above, LIBOR
for
the next Interest Accrual Period will be the Initial LIBOR Rate.
101
Until
all
of the LIBOR Certificates and the Swap Certificates are paid in full, the
Trustee will at all times retain at least four Reference Banks for the
purpose
of determining LIBOR with respect to each Interest Determination
Date. The Master Servicer initially shall designate the Reference
Banks. For purposes of this Section 4.08, each “Reference Bank” shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by,
or be
under common control with, the Trustee and shall have an established place
of
business in London. If any such Reference Bank should be unwilling or
unable to act as such or if the Master Servicer should terminate its appointment
as Reference Bank, the Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank
for
purposes of determining LIBOR or (ii) any inability to retain at least
four
Reference Banks which is caused by circumstances beyond its reasonable
control.
(c) The
Pass-Through Rate for each Class of LIBOR Certificates for each Interest
Accrual
Period shall be determined by the Trustee on each Interest Determination
Date so
long as the Class Certificate Balance of a Class of LIBOR Certificates
is
greater than zero, on the basis of LIBOR and the respective formulae appearing
in footnotes corresponding to the LIBOR Certificates in the table relating
to
the Certificates in the Preliminary Statement.
In
determining LIBOR, any Pass-Through Rate for the LIBOR Certificates, any
Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the
Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect
from
time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee’s selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City
banks
or to determine such arithmetic mean, all as provided for in this Section
4.08.
The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate, the Swap Counterparty and the
Trustee.
|
|
SECTION
4.09.
|
Determination
of Pass-Through Rates for MTA
Certificates.
|
[Reserved].
|
|
SECTION
4.10.
|
The
Swap Trust and Swap Accounts.
|
On
the
Closing Date, there is hereby established a separate trust (the “Swap Trust”),
the assets of which shall consist of the Trustee’s rights and obligations under
the Swap Contract Administration Agreement with respect to each Swap
Contract. The Swap Trust shall be maintained by the Swap Trustee, who
initially shall be the Trustee. The Swap Trustee shall hold the
assets of the Swap Trust in trust for the benefit of the Holders of the
related
Classes of Certificates and the related Swap Counterparty. No later
than the Closing Date, the Swap
102
Trustee
shall establish and maintain two segregated trust accounts to be held in
the
Swap Trust, titled:
(i) “Class
A-1-B Swap Account, The Bank of New York, as Swap Trustee, in trust for
the
Class A-1-B Swap Counterparty and the registered holders of the Class A-1-B
Certificates of CWALT, Inc., Mortgage Pass-Through Certificates, Series
2007-OH3”; and
(ii) “Certificate Swap
Account, The Bank of New York, as Swap Trustee, in trust for the Certificate
Swap Counterparty and the registered holders of the Certificate Swap
Certificates of CWALT, Inc., Mortgage Pass-Through Certificates, Series
2007-OH3.”
Each
account shall be an Eligible Account and funds on deposit therein shall
be held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant
to this
Agreement. Amounts therein shall be held uninvested. Funds on deposit
in a Swap Account shall be distributed in the amounts and in the order
of
priority described under Section 4.02(d) or Section 4.02(e), as
applicable. For federal income tax purposes, the Certificate Swap
Account shall be owned by the Class C-P Certificates, and the Class A-1-B
Swap
Account shall be owned by the Class A-1-B Swap Counterparty.
On
each
Distribution Date, the Trustee shall make the deposits to the Class A-1-B
Swap
Account required by Section 4.02. On each Distribution Date, the
Trustee shall make a deposit to the Certificate Swap Account pursuant to
Section
4.02(a)(1), and to the extent that the amount of such deposit is insufficient
to
pay any Net Certificate Swap Payment and/or Certificate Swap Termination
Payment
(other than a Certificate Swap Termination Payment due to a Swap Counterparty
Trigger Event) due to the Certificate Swap Counterparty with respect to
such
Distribution Date, the Trustee shall withdraw, out of amounts on deposit
in the
Distribution Account in respect of the Principal Remittance Amount such
additional amount as is necessary to cover the remaining portion of any
such Net
Certificate Swap Payment and/or Certificate Swap Termination Payment (other
than
a Certificate Swap Termination Payment due to a Swap Counterparty Trigger
Event)
due to the Certificate Swap Counterparty with respect to such Distribution
Date. Notwithstanding anything to the contrary in this Agreement, the
Swap Trustee shall be allowed to transfer funds in the related Swap Account
to
the Trustee to facilitate, for administrative purposes, distribution of
such
funds to Certificateholders through the Distribution Account.
103
ARTICLE
V
THE
CERTIFICATES
|
|
SECTION
5.01.
|
The
Certificates.
|
The
Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in
the minimum dollar denominations, integral dollar multiples in excess thereof
and aggregate dollar denominations as set forth in the following
table:
|
Class
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Original
Class Certificate Balance
|
|
Class
A-1-A
|
$25,000
|
$1
|
$158,685,000
|
|
Class
A-1-B
|
$25,000
|
$1
|
$170,000,000
|
|
Class
A-2
|
$25,000
|
$1
|
$136,952,000
|
|
Class
A-3
|
$25,000
|
$1
|
$
82,172,000
|
|
Class
M-1
|
$25,000
|
$1
|
$ 9,987,000
|
|
Class
M-2
|
$25,000
|
$1
|
$ 6,462,000
|
|
Class
M-3
|
$25,000
|
$1
|
$ 2,938,000
|
|
Class
M-4
|
$25,000
|
$1
|
$ 2,937,000
|
|
Class
M-5
|
$25,000
|
$1
|
$ 2,937,000
|
|
Class
M-6
|
$25,000
|
$1
|
$ 3,525,000
|
|
Class
M-7
|
$25,000
|
$1
|
$ 3,231,000
|
|
Class A-R
|
$99.99(1)
|
$1
|
$100
|
|
Class C-P
|
N/A
|
N/A
|
N/A
|
|
(1)
|
The
Tax Matters Person Certificate may be issued in a denomination
of
$0.01.
|
Subject
to Section 9.02 respecting the final distribution on the Certificates, on
each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at
a bank
or other entity having appropriate facilities therefor, if (i) such Holder
has so notified the Trustee at least five Business Days prior to the related
Record Date and (ii) such Holder shall hold (A) a Notional Amount
Certificate, (B) 100% of the Class Certificate Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder
appearing in the Certificate Register.
The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized officer. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
were affixed, authorized to sign on behalf of the Trustee shall bind the
Trustee, notwithstanding that such individuals or any of them have ceased
to be
so authorized prior to the countersignature and delivery of such Certificates
or
did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be
valid
for any purpose, unless countersigned by the Trustee by manual signature,
and
such countersignature upon any Certificate shall be conclusive evidence,
and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their
countersignature. On the Closing
104
Date,
the
Trustee shall countersign the Certificates to be issued at the direction
of the
Depositor, or any affiliate of the Depositor.
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
|
|
SECTION
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
(a) The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06, a Certificate Register for the Trust Fund in
which, subject to the provisions of subsections (b) and (c) below and to
such reasonable regulations as it may prescribe, the Trustee shall provide
for
the registration of Certificates and of transfers and exchanges of Certificates
as provided in this Agreement. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in
the name
of the designated transferee or transferees, one or more new Certificates
of the
same Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Trustee. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder
making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a
written instrument of transfer in form satisfactory to the Trustee duly
executed
by the holder thereof or his attorney duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall
be
cancelled and subsequently destroyed by the Trustee in accordance with
the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless (i) such transfer
is made
more than 90 days after the Closing Date and (ii) such transfer is made
pursuant
to an effective registration statement under the Securities Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities
Act and
such laws, in order to assure compliance with the Securities Act and such
laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer in substantially the form set
forth
in Exhibit J-2 (the “Transferor Certificate”) and (i) deliver a letter
in substantially the form of either Exhibit K (the “Investment Letter”) or
Exhibit L-1 (the “Rule 144A Letter”) or (ii) there shall be
delivered to the Trustee at the expense of the transferor an Opinion of
Counsel
that such transfer may be made pursuant to an exemption from the
105
Securities
Act; provided, however, that in the case of the delivery of an Investment
Letter
in connection with the transfer of any Class C-P Certificate to a transferee
that is formed with the purpose of issuing notes backed by such Class C-P
Certificate, as the case may be, clause (b) and (c) of the form of Investment
Letter shall not be applicable and shall be deleted by such
transferee. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and
such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Master
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to
the
Depositor such information regarding the Certificates, the Mortgage Loans
and
other matters regarding the Trust Fund as the Depositor shall reasonably
request
to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and the Depositor, the Sellers, the NIM
Insurer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of
such
Certificate acceptable to and in form and substance satisfactory to the
Trustee
(in the event such Certificate is a Private Certificate, such requirement
is
satisfied only by the Trustee’s receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L-1, or in
the
event such Certificate is a Residual Certificate, such requirement is satisfied
only by the Trustee’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that (x) such transferee
is not an employee benefit plan or arrangement subject to Section 406 of
ERISA
or a plan or arrangement subject to Section 4975 of the Code, nor a person
acting on behalf of any such plan or arrangement or using the assets of
any such
plan or arrangement to effect such transfer or (y) in the case of a Certificate
that is an ERISA-Restricted Certificate and that has been the subject of
an
ERISA-Qualifying Underwriting, a representation that the purchaser is an
insurance company which is purchasing such Certificate with funds contained
in
an “insurance company general account” (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that
the purchase and holding of such Certificate satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60 or (ii) in the
case of
any ERISA-Restricted Certificate presented for registration in the name
of an
employee benefit plan or arrangement subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee or any other person acting on behalf of any such
plan
or arrangement, or using such plan’s or arrangement’s assets, an Opinion of
Counsel satisfactory to the Trustee, which Opinion of Counsel shall not
be an
expense of the Trustee, the Master Servicer or the Trust Fund, addressed
to the
Trustee and the Master Servicer to the effect that the purchase and holding
of
such ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and
will not
subject the Trustee or the Master Servicer to any obligation in addition
to
those expressly undertaken in this Agreement or to any liability (such
Opinion
of Counsel, a “Benefit Plan Opinion”). For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a
Residual
Certificate, in the event the representation letter or Benefit Plan Opinion
referred to in the preceding sentence is not
106
so
furnished, one of the representations in clause (i), as appropriate, shall
be
deemed to have been made to the Trustee by the transferee’s (including an
initial acquirer’s) acceptance of the ERISA-Restricted
Certificates. Notwithstanding anything else to the contrary in this
Agreement, any purported transfer of an ERISA-Restricted Certificate to
or on
behalf of an employee benefit plan or arrangement subject to ERISA or to
Section
4975 of the Code without the delivery to the Trustee of a Benefit Plan
Opinion
of Counsel satisfactory to the Trustee as described above shall be void
and of
no effect.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Certificate that is in fact not permitted
by
this Section 5.02(b) or for making any payments due on such Certificate
to the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the transfer was registered by
the
Trustee in accordance with the foregoing requirements.
Until
the
related Swap Contract is terminated, no transfer of any Class A-1-A or
Class
A-1-B Certificate (other than a transfer of a Class A-1-A or Class A-1-B
Certificate to an affiliate of the Depositor (either directly or through
a
nominee) in connection with the initial issuance of the Certificates) shall
be
made unless the Trustee shall have received a representation letter from
the
transferee of such Class A-1-A or Class A-1-B Certificate substantially
in the
form of Exhibit L-2 to the effect that (i) such transferee is not a Plan,
or
(ii) the purchase and holding of the Class A-1-A or Class A-1-B Certificate
satisfies the requirements for exemptive relief under XXXX 00-00, XXXX
00-0,
XXXX 00-00, XXXX 00-00, XXXX 96-23, the service provider exemption provided
under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or
a
similar exemption. In the event that such representation letter is
not delivered, one of the foregoing representations, as appropriate, shall
be
deemed to have been made by the transferee’s (including an initial acquirer’s)
acceptance of the Class A-1-A or Class A-1-B Certificate. In the
event that such representation is violated, such transfer or acquisition
shall
be void and of no effect.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of
each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of
any
change or impending change in its status as a Permitted Transferee.
(ii) Except
in connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Residual Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Residual Certificate may be registered on the
Closing
Date or thereafter transferred, and the Trustee shall not register the
Transfer
of any Residual Certificate unless the Trustee shall have been furnished
with an
affidavit (a “Transfer Affidavit”) of the initial owner or the proposed
transferee in the form attached to this Agreement as
Exhibit I.
107
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee and to provide
to the
Trustee a certificate substantially in the form attached hereto as Exhibit
J-1
stating that it has no knowledge that such Person is not a Permitted
Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this
Section 5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under
no liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the Transfer was registered after
receipt of the related Transfer Affidavit, Transferor Certificate and either
the
Rule 144A Letter or the Investment Letter, if required. The
Trustee shall be entitled but not obligated to recover from any Holder
of a
Residual Certificate that was in fact not a Permitted Transferee at the
time it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after
either
such time. Any such payments so recovered by the Trustee shall be
paid and delivered by the Trustee to the last preceding Permitted Transferee
of
such Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of
written
request from the Trustee, all information necessary to compute any tax
imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Master
Servicer or any Seller, to the effect that the elimination of such restrictions
will not cause any REMIC hereunder to fail to qualify as a REMIC at any
time
that the Certificates are outstanding or result in the imposition of any
tax on
the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion
of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure
that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to
108
a
Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the Transfer of a Residual Certificate which is held by a Person that is
not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as provided below, the Book-Entry Certificates shall at all times remain
registered in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Book-Entry Certificates; (iii) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall
be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses
from
its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates
for
purposes of exercising the rights of holders under this Agreement, and
requests
and directions for and votes of such representatives shall not be deemed
to be
inconsistent if they are made with respect to different Certificate Owners;
and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect
to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made
in
accordance with the procedures established by the Depository Participant
or
brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate
Owners it
represents or of brokerage firms for which it acts as agent in accordance
with
the Depository’s normal procedures.
If
(x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge
its
responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
Certificate Balance of the Book-Entry Certificates together advise the
Trustee
and the Depository through the Depository Participants in writing that
the
continuation of a book-entry system through the Depository is no longer
in the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such
event
and of the availability of definitive, fully-registered Certificates (the
“Definitive Certificates”) to Certificate Owners requesting the
same. Upon surrender to the Trustee of the related Class of
Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and
each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Master Servicer shall provide the Trustee with an
adequate inventory of certificates to facilitate the issuance and transfer
of
Definitive Certificates. Upon the issuance of Definitive Certificates
all
109
references
in this Agreement to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee,
to
the extent applicable with respect to such Definitive Certificates and
the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue
of
its assumption of such obligations become liable to any party for any act
or
failure to act of the Depository.
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|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft
of any
Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required by them to save each
of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like
Class, tenor and Percentage Interest. In connection with the issuance
of any new Certificate under this Section 5.03, the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge
that
may be imposed in relation thereto and any other expenses (including the
fees
and expenses of the Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete
and indefeasible evidence of ownership, as if originally issued, whether
or not
the lost, stolen or destroyed Certificate shall be found at any
time.
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|
SECTION
5.04.
|
Persons
Deemed Owners.
|
The
Master Servicer, the NIM Insurer, the Trustee and any agent of the Master
Servicer, the NIM Insurer or the Trustee may treat the Person in whose
name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other
purposes
whatsoever, and neither the Master Servicer, the NIM Insurer, the Trustee
nor
any agent of the Master Servicer, the NIM Insurer or the Trustee shall
be
affected by any notice to the contrary.
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|
SECTION
5.05.
|
Access
to List of Certificateholders’ Names and
Addresses.
|
If
three
or more Certificateholders and/or Certificate Owners (a) request such
information in writing from the Trustee, (b) state that such Certificateholders
and/or Certificate Owners desire to communicate with other Certificateholders
and/or Certificate Owners with respect to their rights under this Agreement
or
under the Certificates, and (c) provide a copy of the communication which
such
Certificateholders and/or Certificate Owners propose to transmit, or if
the
Depositor or Master Servicer shall request such information in writing
from the
Trustee, then the Trustee shall, within ten Business Days after the receipt
of
such request, (x) provide the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients’ expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any, and (y) assist the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients’ expense with
obtaining from the Depository a list of the related Depository Participants
acting on behalf of Certificate Owners of Book Entry
Certificates. The Depositor and every Certificateholder and
Certificate Owner, by receiving and
110
holding
a
Certificate or beneficial interest therein, agree that the Trustee shall
not be
held accountable by reason of the disclosure of any such information as
to the
list of the Certificateholders and/or Depository Participants hereunder,
regardless of the source from which such information was derived.
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|
SECTION
5.06.
|
Maintenance
of Office or Agency.
|
The
Trustee will maintain or cause to be maintained at its expense an office
or
offices or agency or agencies in New York City where Certificates may be
surrendered for registration of transfer or exchange. The Trustee
initially designates its Corporate Trust Office for such
purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
111
ARTICLE
VI
THE
DEPOSITOR AND THE MASTER SERVICER
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|
SECTION
6.01.
|
Respective
Liabilities of the Depositor and the Master
Servicer.
|
The
Depositor and the Master Servicer shall each be liable in accordance with
this
Agreement only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them in this Agreement.
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|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor or the Master
Servicer.
|
The
Depositor will keep in full effect its existence, rights and franchises
as a
corporation under the laws of the United States or under the laws of one
of the
states thereof and will obtain and preserve its qualification to do business
as
a foreign corporation in each jurisdiction in which such qualification
is or
shall be necessary to protect the validity and enforceability of this Agreement,
or any of the Mortgage Loans and to perform its duties under this
Agreement. The Master Servicer will keep in effect its existence,
rights and franchises as a limited partnership under the laws of the United
States or under the laws of one of the states thereof and will obtain and
preserve its qualification or registration to do business as a foreign
partnership in each jurisdiction in which such qualification or registration
is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under
this
Agreement.
Any
Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation
to which
the Depositor or the Master Servicer shall be a party, or any person succeeding
to the business of the Depositor or the Master Servicer, shall be the successor
of the Depositor or the Master Servicer, as the case may be, hereunder,
without
the execution or filing of any paper or any further act on the part of
any of
the parties hereto, anything in this Agreement to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the
Master Servicer shall be qualified to service mortgage loans on behalf
of, FNMA
or FHLMC.
As
a
condition to the effectiveness of any merger or consolidation, at least
15
calendar days prior to the effective date of any merger or consolidation
of the
Master Servicer, the Master Servicer shall provide (x) written notice to
the
Depositor of any successor pursuant to this Section and (y) in writing
and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
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|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer,
the NIM
Insurer and Others.
|
None
of
the Depositor, the Master Servicer, the NIM Insurer or any Seller or any
of the
directors, officers, employees or agents of the Depositor, the Master Servicer,
the NIM Insurer or any Seller shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking
of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the
Depositor, the Master Servicer, any Seller or any such Person against any
breach
of representations or warranties made
112
by
it in
this Agreement or protect the Depositor, the Master Servicer, any Seller
or any
such Person from any liability which would otherwise be imposed by reasons
of
willful misfeasance, bad faith or gross negligence in the performance of
duties
or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, the Master Servicer, the NIM Insurer, each
Seller and any director, officer, employee or agent of the Depositor, the
Master
Servicer, the NIM Insurer or each Seller may rely in good faith on
any document of any kind primafacie properly executed and
submitted by any Person respecting any matters arising under this
Agreement. The Depositor, the Master Servicer, the NIM Insurer, each
Seller and any director, officer, employee or agent of the Depositor, the
Master
Servicer, the NIM Insurer or any Seller shall be indemnified by the Trust
Fund
and held harmless against any loss, liability or expense incurred in connection
with any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any
specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith
or
gross negligence in the performance of duties hereunder or by reason of
reckless
disregard of obligations and duties hereunder. None of the Depositor,
the Master Servicer, the NIM Insurer or any Seller shall be under any obligation
to appear in, prosecute or defend any legal action that is not incidental
to its
respective duties hereunder and which in its opinion may involve it in
any
expense or liability; provided, however, that any of the
Depositor, the Master Servicer, the NIM Insurer or any Seller may in its
discretion undertake any such action that it may deem necessary or desirable
in
respect of this Agreement and the rights and duties of the parties hereto
and
interests of the Trustee and the Certificateholders hereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
Fund,
and the Depositor, the Master Servicer, the NIM Insurer and each Seller
shall be
entitled to be reimbursed therefor out of the Certificate Account.
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|
SECTION
6.04.
|
Limitation
on Resignation of Master
Servicer.
|
The
Master Servicer shall not resign from the obligations and duties hereby
imposed
on it except (a) upon appointment of a successor servicer that is
reasonably acceptable to the Trustee and the NIM Insurer and the written
confirmation from each Rating Agency (which confirmation shall be furnished
to
the Depositor, the Trustee and the NIM Insurer) that such resignation will
not
cause such Rating Agency to reduce the then-current rating of the Certificates
or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No resignation of the Master Servicer shall become effective
until the Trustee or a successor master servicer shall have assumed the
Master
Servicer’s responsibilities, duties, liabilities (other than those liabilities
arising prior to the appointment of such successor) and obligations under
this
Agreement and the Depositor shall have received the information described
in the
following sentence. As a condition to the effectiveness of any such
resignation, at least 15 calendar days prior to the effective date of such
resignation, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing
and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to the resignation
of the
Master Servicer.
113
ARTICLE
VII
DEFAULT
|
|
SECTION
7.01.
|
Events
of Default.
|
“Event
of Default,” wherever used in this Agreement, means any one of the
following events:
(i) any
failure by the Master Servicer to deposit in the Certificate Account or
remit to
the Trustee any payment required to be made under the terms of this Agreement,
which failure shall continue unremedied for five days after the date upon
which
written notice of such failure shall have been given to the Master Servicer
by
the Trustee, the NIM Insurer or the Depositor or to the Master Servicer,
the NIM
Insurer and the Trustee by the Holders of Certificates having not less
than 25%
of the Voting Rights evidenced by the Certificates; or
(ii) any
failure by the Master Servicer to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Master Servicer
contained in this Agreement (except with respect to a failure related to
a
Limited Exchange Act Reporting Obligation), which failure materially affects
the
rights of Certificateholders, that failure continues unremedied for a period
of
60 days after the date on which written notice of such failure shall have
been
given to the Master Servicer by the Trustee, the NIM Insurer or the Depositor,
or to the Master Servicer and the Trustee by the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates; provided, however, that the sixty day cure
period shall not apply to the initial delivery of the Mortgage File for
Delay
Delivery Mortgage Loans nor the failure to substitute or repurchase in
lieu of
delivery; or
(iii) a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Master Servicer and such decree or order
shall
have remained in force undischarged or unstayed for a period of 60 consecutive
days; or
(iv) the
Master Servicer shall consent to the appointment of a receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings of or relating to the Master Servicer or all or
substantially all of the property of the Master Servicer; or
(v) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of, or commence a
voluntary case under, any applicable insolvency or reorganization statute,
make
an assignment for the benefit of its creditors, or voluntarily suspend
payment
of its obligations; or
114
(vi) the
Master Servicer shall fail to reimburse in full the Trustee within five
days of
the Master Servicer Advance Date for any Advance made by the Trustee pursuant
to
Section 4.01(b) together with accrued and unpaid interest.
If
an
Event of Default described in clauses (i) to (vi) of this Section shall
occur,
then, and in each and every such case, so long as such Event of Default
shall
not have been remedied, the Trustee may, or, if an Event of Default described
in
clauses (i) to (v) of this Section shall occur, then, and in each and every
such
case, so long as such Event of Default shall not have been remedied, at
the
direction of either the NIM Insurer or the Holders of Certificates evidencing
not less than 66-2/3% of the Voting Rights, evidenced by the Certificates,
the
Trustee shall by notice in writing to the Master Servicer (with a copy
to each
Rating Agency and the Depositor), terminate all of the rights and obligations
of
the Master Servicer under this Agreement and in and to the Mortgage Loans
and
the proceeds thereof, other than its rights as a Certificateholder
hereunder. In addition, if during the period that the Depositor is
required to file Exchange Act Reports with respect to the Trust Fund, the
Master
Servicer shall fail to observe or perform any of the obligations that constitute
a Limited Exchange Act Reporting Obligation or the obligations set forth
in
Section 3.16(a) or Section 11.07(a)(1) and (2), and such failure continues
for
the lesser of 10 calendar days or such period in which the applicable Exchange
Act Report can be filed timely (without taking into account any extensions),
so
long as such failure shall not have been remedied, the Trustee shall, but
only
at the direction of the Depositor, terminate all of the rights and obligations
of the Master Servicer under this Agreement and in and to the Mortgage
Loans and
the proceeds thereof, other than its rights as a Certificateholder
hereunder. The Depositor shall not be entitled to terminate the
rights and obligations of the Master Servicer if a failure of the Master
Servicer to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely
to the
role or functions of such Subcontractor with respect to mortgage loans
other
than the Mortgage Loans.
On
and
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer hereunder, whether with respect to the
Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall thereupon make any Advance which the Master Servicer failed
to
make subject to Section 4.01 whether or not the obligations of the Master
Servicer have been terminated pursuant to this Section. The Trustee
is hereby authorized and empowered to execute and deliver, on behalf of
the
Master Servicer, as attorney-in-fact or otherwise, any and all documents
and
other instruments, and to do or accomplish all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, whether
to
complete the transfer and endorsement or assignment of the Mortgage Loans
and
related documents, or otherwise. Unless expressly provided in such
written notice, no such termination shall affect any obligation of the
Master
Servicer to pay amounts owed pursuant to Article VIII. The Master
Servicer agrees to cooperate with the Trustee in effecting the termination
of
the Master Servicer’s responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee of all cash amounts which shall
at the
time be credited to the Certificate Account, or thereafter be received
with
respect to the Mortgage Loans.
Notwithstanding
any termination of the activities of the Master Servicer hereunder, the
Master
Servicer shall be entitled to receive, out of any late collection of a
Scheduled
Payment on a Mortgage Loan which was due prior to the notice terminating
such
Master Servicer’s rights and obligations as Master Servicer hereunder and
received after such notice, that portion thereof to
115
which
such Master Servicer would have been entitled pursuant to
Sections 3.08(a)(i) through (viii), and any other amounts payable to such
Master Servicer hereunder the entitlement to which arose prior to the
termination of its activities under this Agreement.
If
the
Master Servicer is terminated, the Trustee shall provide the Depositor
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of
the
Master Servicer as set forth herein.
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|
SECTION
7.02.
|
Trustee
to Act; Appointment of
Successor.
|
On
and
after the time the Master Servicer receives a notice of termination pursuant
to
Section 7.01, the Trustee shall, subject to and to the extent provided in
Section 3.04, be the successor to the Master Servicer in its capacity as
master servicer under this Agreement and the transactions set forth or
provided
for in this Agreement and shall be subject to all the responsibilities,
duties
and liabilities relating thereto placed on the Master Servicer by the terms
and
provisions of this Agreement and applicable law including the obligation
to make
Advances pursuant to Section 4.01. As compensation therefor, the
Trustee shall be entitled to all funds relating to the Mortgage Loans that
the
Master Servicer would have been entitled to charge to the Certificate Account
or
Distribution Account if the Master Servicer had continued to act
hereunder. Notwithstanding the foregoing, if the Trustee has become
the successor to the Master Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 or if it is
otherwise unable to so act, (i) appoint any established mortgage loan servicing
institution reasonably acceptable to the NIM Insurer (as evidenced by the
prior
written consent of the NIM Insurer), or (ii) if it is unable for 60 days
to
appoint a successor servicer reasonably acceptable to the NIM Insurer,
petition
a court of competent jurisdiction to appoint any established mortgage loan
servicing institution, the appointment of which does not adversely affect
the
then-current rating of the Certificates and the NIM Insurer guaranteed
notes
(without giving any effect to any policy or guaranty provided by the NIM
Insurer) by each Rating Agency as the successor to the Master Servicer
hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer hereunder. Any successor to the
Master Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least $15,000,000,
and which is willing to service the Mortgage Loans and (i) executes and
delivers
to the Depositor and the Trustee an agreement accepting such delegation
and
assignment, which contains an assumption by such Person of the rights,
powers,
duties, responsibilities, obligations and liabilities of the Master Servicer
(other than liabilities of the Master Servicer under Section 6.03 incurred
prior to termination of the Master Servicer under Section 7.01), with like
effect as if originally named as a party to this Agreement; and provided
further
that each Rating Agency acknowledges that its rating of the Certificates
in
effect immediately prior to such assignment and delegation will not be
qualified
or reduced as a result of such assignment and delegation and (ii) provides
to
the Depositor in writing, fifteen (15) days prior to the effective date
of such
appointment, and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply
with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
replacement master servicer. The Trustee shall provide written notice
to the Depositor of such successor pursuant to
116
this
Section. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting,
shall, subject to Section 3.04, act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor
out of
payments on the Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of
the Master Servicing Fee permitted to be paid to the Master Servicer
hereunder. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any
such
succession. Neither the Trustee nor any other successor master
servicer shall be deemed to be in default hereunder by reason of any failure
to
make, or any delay in making, any distribution hereunder or any portion
thereof
or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of the
Master
Servicer to deliver or provide, or any delay in delivering or providing,
any
cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give notice
to the
NIM Insurer and the Mortgagors of such change of servicer and shall, during
the
term of its service as master servicer maintain in force the policy or
policies
that the Master Servicer is required to maintain pursuant to
Section 3.09.
In
connection with the termination or resignation of the Master Servicer hereunder,
either (i) the successor Master Servicer, including the Trustee if the
Trustee is acting as successor Master Servicer, shall represent and warrant
that
it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with
the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer
either (x) in causing MERS to execute and deliver an assignment of Mortgage
in
recordable form to transfer the Mortgage from MERS to the Trustee and to
execute
and deliver such other notices, documents and other instruments as may
be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS® System to the successor Master Servicer or
(y) in causing MERS to designate on the MERS® System the successor Master
Servicer as the servicer of such Mortgage Loan. The predecessor
Master Servicer shall file or cause to be filed any such assignment in
the
appropriate recording office. The successor Master Servicer shall
cause such assignment to be delivered to the Trustee promptly upon receipt
of
the original with evidence of recording thereon or a copy certified by
the
public recording office in which such assignment was recorded.
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|
SECTION
7.03.
|
Notification
to Certificateholders.
|
(a) Upon
any termination of or appointment of a successor to the Master Servicer,
the
Trustee shall give prompt written notice thereof to the Certificateholders
and
to each Rating Agency.
(b) Within
60 days after the occurrence of any Event of Default, the Trustee shall
transmit
by mail to all Certificateholders notice of each such Event of Default
hereunder
known to the Trustee, unless such Event of Default shall have been cured
or
waived.
117
ARTICLE
VIII
CONCERNING
THE TRUSTEE
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|
SECTION
8.01.
|
Duties
of Trustee.
|
The
Trustee, prior to the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, shall undertake to perform
such
duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested
in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct
of such person’s own affairs.
The
Trustee,
upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee that are
specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they are in the form
required
by this Agreement; provided, however, that the Trustee shall not
be responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument.
No
provision
of this Agreement shall be construed to relieve the Trustee from liability
for
its own negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
(i) unless
an Event of Default known to the Trustee shall have occurred and be continuing,
the duties and obligations of the Trustee shall be determined solely by
the
express provisions of this Agreement, the Trustee shall not be liable except
for
the performance of such duties and obligations as are specifically set
forth in
this Agreement, no implied covenants or obligations shall be read into
this
Agreement against the Trustee and the Trustee may conclusively rely, as
to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the
requirements of this Agreement which it believed in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the
Trustee shall not be liable for an error of judgment made in good faith
by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
finally proven that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken, suffered
or
omitted to be taken by it in good faith in accordance with the direction
of
Holders of Certificates evidencing not less than 25% of the Voting Rights
of
Certificates relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement; and
(iv) without
in any way limiting the provisions of this Section 8.01 or Section 8.02,
the
Trustee shall be entitled to rely conclusively on the information delivered
to
it by the Master Servicer in a Trustee Advance Notice in determining whether
it
is required
118
to
make
an Advance under Section 4.01(b), shall have no responsibility to ascertain
or
confirm any information contained in any Trustee Advance Notice, and shall
have
no obligation to make any Advance under Section 4.01(b) in the absence
of a
Trustee Advance Notice or actual knowledge of a Responsible Officer of
the
Trustee that (A) such Advance was not made by the Master Servicer and (B)
such
Advance is not a Nonrecoverable Advance.
The
Trustee
hereby represents, warrants, covenants and agrees that, except as permitted
by
Article IX hereof, it shall not cause the Trust Fund to consolidate or
amalgamate with, or merge with or into, or transfer all or substantially
all of
the Trust Fund to, another Person.
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|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 8.01:
(i) the
Trustee may request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officers’ Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party
or
parties and the Trustee shall have no responsibility to ascertain or confirm
the
genuineness of any signature of any such party or parties;
(ii) the
Trustee may consult with counsel, financial advisers or accountants of
its
selection and the advice of any such counsel, financial advisers or accountants
and any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder
in good faith and in accordance with such Opinion of Counsel;
(iii) the
Trustee shall not be liable for any action taken, suffered or omitted by
it in
good faith and believed by it to be authorized or within the discretion
or
rights or powers conferred upon it by this Agreement;
(iv) the
Trustee shall not be bound to make any investigation into the facts or
matters
stated in any resolution, certificate, statement, instrument, opinion,
report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by the NIM Insurer or Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated
to each
Class of Certificates;
(v) the
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents, accountants or
attorneys;
(vi) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against
such risk or liability is not assured to it;
119
(vii) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security);
(viii) the
Trustee shall not be deemed to have knowledge of an Event of Default until
a
Responsible Officer of the Trustee shall have received written notice thereof;
and
(ix)
the Trustee shall be under no obligation to exercise any of the trusts,
rights
or powers vested in it by this Agreement or to institute, conduct or defend
any
litigation hereunder or in relation hereto at the request, order or direction
of
the NIM Insurer or any of the Certificateholders, pursuant to the provisions
of
this Agreement, unless the NIM Insurer or such Certificateholders shall
have
offered to the Trustee reasonable security or indemnity satisfactory to
the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby.
The
Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under the Swap Contract Administration Agreement (in its capacity
as
Swap Trustee). The Sellers, the Depositor, the Master Servicer and
the Holders of the Covered Certificates by their acceptance of such Certificates
acknowledge and agree that the Trustee shall execute, deliver and perform
its
obligations under the Swap Contract Administration Agreement and shall
do so
solely in its capacity as Swap Trustee and not in its individual
capacity. Every provision of this Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustee shall
apply
to the Trustee’s execution of the Swap Contract Administration Agreement in its
capacity as Swap Trustee, and the performance of its duties and satisfaction
of
its obligations thereunder.
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|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained in this Agreement and in the Certificates shall be taken
as
the statements of the Depositor or a Seller, as the case may be, and the
Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or
of the
Certificates or of any Mortgage Loan or related document or of MERS or
the MERS®
System other than with respect to the Trustee’s execution and counter-signature
of the Certificates. The Trustee shall not be accountable for the use
or application by the Depositor or the Master Servicer of any funds paid
to the
Depositor or the Master Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor or the Master
Servicer.
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|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
The
Trustee in its individual or any other capacity may become the owner or
pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
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|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
The
Trustee, as compensation for its activities hereunder, shall be entitled
to
withdraw from the Distribution Account on each Distribution Date an amount
equal
to the Trustee Fee for such Distribution Date. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified
by the
Master Servicer and held harmless against any loss, liability or
120
expense
(including reasonable attorney’s fees) (i) incurred in connection with any
claim or legal action relating to (a) this Agreement, (b) the
Certificates or (c) in connection with the performance of any of the
Trustee’s duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance
of
any of the Trustee’s duties hereunder or incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders and (ii) resulting
from any error in any tax or information return prepared by the Master
Servicer. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee
hereunder. Without limiting the foregoing, the Master Servicer
covenants and agrees, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any such expense, disbursement
or
advance as may arise from the Trustee’s negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with
any of the provisions of this Agreement with respect to: (A) the
reasonable compensation and the expenses and disbursements of its counsel
not
associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant,
engineer
or appraiser that is not regularly employed by the Trustee, to the extent
that
the Trustee must engage such persons to perform acts or services hereunder
and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided in this
Agreement, the Trustee shall not be entitled to payment or reimbursement
for any
routine ongoing expenses incurred by the Trustee in the ordinary course
of its
duties as Trustee, Registrar, Tax Matters Person or Paying Agent hereunder
or
for any other expenses.
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|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which
would
not cause either of the Rating Agencies to reduce or withdraw their respective
then current ratings of the Certificates (or having provided such security
from
time to time as is sufficient to avoid such reduction) as evidenced in
writing
by each Rating Agency. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes
of
this Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth
in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
this Section 8.06, the Trustee shall resign immediately in the manner and
with the effect specified in Section 8.07. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor
and
its affiliates or the Master Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Master
Servicer
other than the Trustee in its role as successor to the Master
Servicer.
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|
SECTION
8.07.
|
Resignation
and Removal of Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby
created
by giving written notice of resignation to the Depositor, the Master Servicer
and each Rating
121
Agency
not less than 60 days before the date specified in such notice when, subject
to
Section 8.08, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.08 meeting the
qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall
provide
(x) written notice to the Depositor of any successor pursuant to this Section
and (y) in writing and in form and substance reasonably satisfactory to
the
Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Trustee.
If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof and shall fail to resign after written
request
thereto by the NIM Insurer or the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or
a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property
or
affairs for the purpose of rehabilitation, conservation or liquidation,
(iii)(A)
a tax is imposed with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund is located and (B) the imposition of such tax
would be
avoided by the appointment of a different trustee, or (iv) during the period
that the Depositor is required to file Exchange Act Reports with respect
to the
Trust Fund, the Trustee fails to comply with its obligations under the
last
sentence of Section 7.01, in the preceding paragraph, Section 8.09 or Article
XI
and such failure is not remedied within the lesser of 10 calendar days
or such
period in which the applicable Exchange Act Report can be filed timely
(without
taking into account any extensions), then, in the case of clauses (i) through
(iii), the Depositor, the NIM Insurer or the Master Servicer, and in the
case of
clause (iv), the Depositor, may remove the Trustee and appoint a successor
trustee, reasonably acceptable to the NIM Insurer, by written instrument,
in
triplicate, one copy of which instrument shall be delivered to the Trustee,
one
copy of which shall be delivered to the Master Servicer, one copy of which
shall
be delivered to the NIM Insurer and one copy of which shall be delivered
to the
successor trustee.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Trustee to the Master Servicer, one complete set to the Trustee so removed,
one
complete set to the NIM Insurer and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to
each Rating Agency by the successor trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in
Section 8.08.
122
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|
SECTION
8.08.
|
Successor
Trustee.
|
Any
successor trustee appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee and the Master Servicer an instrument
accepting such appointment hereunder and thereupon the resignation or removal
of
the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested
with all
the rights, powers, duties and obligations of its predecessor hereunder,
with
the like effect as if originally named as trustee in this Agreement. The
Depositor, the Master Servicer and the predecessor trustee shall execute
and
deliver such instruments and do such other things as may reasonably be
required
for more fully and certainly vesting and confirming in the successor trustee
all
such rights, powers, duties, and obligations. In addition, if a Swap Contract
is
still outstanding, the Person appointed as successor trustee shall execute,
acknowledge and deliver to the predecessor trustee, Countrywide and the
Master
Servicer an instrument accepting the appointment as successor Swap Contract
Administrator under the Swap Contract Administration Agreement and as successor
Swap Trustee.
No
successor trustee shall accept appointment as provided in this Section
8.08
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06 hereof, is reasonably acceptable to
the NIM
Insurer, its appointment shall not adversely affect the then-current ratings
of
the Certificates and has provided to the Depositor in writing and in form
and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to the NIM Insurer and all Holders of
Certificates. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the
Depositor.
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|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the
Trustee
hereunder, provided that such corporation shall be eligible under the provisions
of Section 8.06 without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything in this Agreement to
the
contrary notwithstanding.
As
a
condition to the effectiveness of any merger or consolidation, at least
15
calendar days prior to the effective date of any merger or consolidation
of the
Trustee, the Trustee shall provide (x) written notice to the Depositor
of any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under
Item
6.02 of Form 8-K with respect to a replacement Trustee.
123
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|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate
Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of
meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or property securing any Mortgage Note may at the time be located, the
Master
Servicer and the Trustee acting jointly shall have the power and shall
execute
and deliver all instruments to appoint one or more Persons approved by
the
Trustee and reasonably acceptable to the NIM Insurer to act as co-trustee
or
co-trustees jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons,
in
such capacity and for the benefit of the Certificateholders, such title
to the
Trust Fund or any part thereof, whichever is applicable, and, subject to
the
other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. If the Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request to do so,
or in
the case an Event of Default shall have occurred and be continuing, the
Trustee
alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as
a successor trustee under Section 8.06 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
under
Section 8.08.
Every
separate trustee and co-trustee shall, to the extent permitted by law,
be
appointed and act subject to the following provisions and
conditions:
(i) To
the extent necessary to effectuate the purposes of this Section 8.10, all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for the obligation of the Trustee under this Agreement to advance
funds
on behalf of the Master Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not
authorized to act separately without the Trustee joining in such act),
except to
the extent that under any law of any jurisdiction in which any particular
act or
acts are to be performed (whether as Trustee hereunder or as successor
to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified
to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable Trust Fund
or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Trustee;
(ii) No
trustee hereunder shall be held personally liable by reason of any act
or
omission of any other trustee hereunder and such appointment shall not,
and
shall not be deemed to, constitute any such separate trustee or co-trustee
as
agent of the Trustee;
(iii) The
Trustee may at any time accept the resignation of or remove any separate
trustee
or co-trustee; and
(iv) The
Master Servicer, and not the Trustee, shall be liable for the payment of
reasonable compensation, reimbursement and indemnification to any such
separate
trustee or co-trustee.
124
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing
any separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested
with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to
all the provisions of this Agreement, specifically including every provision
of
this Agreement relating to the conduct of, affecting the liability of,
or
affording protection to, the Trustee. Every such instrument shall be
filed with the Trustee and a copy thereof given to the Master Servicer
and the
Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee
its
agent or attorney-in-fact, with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall
die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised
by the
Trustee, to the extent permitted by law, without the appointment of a new
or
successor trustee.
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|
SECTION
8.11.
|
Tax
Matters.
|
It
is
intended that the assets with respect to which any REMIC election is to
be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify
such
assets as, a “real estate mortgage investment conduit” as defined in and in
accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent
(and the
Trustee is hereby appointed to act as agent) on behalf of any such REMIC
and
that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared
and filed
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to
any such
REMIC, containing such information and at the times and in the manner as
may be
required by the Code or state or local tax laws, regulations, or rules,
and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby;
(b)
within thirty days of the Closing Date, furnish or cause to be furnished
to the
Internal Revenue Service, on Forms 8811 or as otherwise may be required
by the
Code, the name, title, address, and telephone number of the person that
the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form,
and
update such information at the time or times in the manner required by
the Code;
(c) make or cause to be made elections that such assets be treated as a
REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared
and
forwarded, to the Certificateholders and to the Internal Revenue Service
and, if
necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for
the
computation of tax imposed on the transfer of a Residual Certificate to
a Person
that is not a Permitted Transferee, or an agent
125
(including
a broker, nominee or other middleman) of a Non-Permitted Transferee, or
a
pass-through entity in which a Non-Permitted Transferee is the record holder
of
an interest (the reasonable cost of computing and furnishing such information
may be charged to the Person liable for such tax); (f) to the extent that
they
are under its control conduct matters relating to such assets at all times
that
any Certificates are outstanding so as to maintain the status as a REMIC
under
the REMIC Provisions; (g) not knowingly or intentionally take any action
or omit
to take any action that would cause the termination of the tax status of
any
REMIC; (h) pay, from the sources specified in the third paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any such REMIC prior to
its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee
from
withholding payment of such tax, if permitted by law, pending the outcome
of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person
as may
be required to sign such returns by the Code or state or local laws, regulations
or rules; (j) maintain records relating to any such REMIC, including but
not
limited to the income, expenses, assets and liabilities thereof and the
fair
market value and adjusted basis of the assets determined at such intervals
as
may be required by the Code, as may be necessary to prepare the foregoing
returns, schedules, statements or information; and (k) as and when necessary
and
appropriate, represent any such REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year
of any
such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any
such
REMIC, and otherwise act on behalf of any such REMIC in relation to any
tax
matter or controversy involving it.
In
order
to enable the Trustee to perform its duties as set forth in this Agreement,
the
Depositor shall provide, or cause to be provided, to the Trustee within
ten (10)
days after the Closing Date all information or data that the Trustee requests
in
writing and determines to be relevant for tax purposes to the valuations
and
offering prices of the Certificates, including, without limitation, the
price,
yield, prepayment assumption and projected cash flows of the Certificates
and
the Mortgage Loans. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor, any such additional information
or data that the Trustee may, from time to time, reasonably request in
order to
enable the Trustee to perform its duties as set forth in this
Agreement. The Depositor hereby indemnifies the Trustee for any
losses, liabilities, damages, claims or expenses of the Trustee arising
from any
errors or miscalculations of the Trustee that result from any failure of
the
Depositor to provide, or to cause to be provided, accurate information
or data
to the Trustee on a timely basis.
In
the
event that any tax is imposed on “prohibited transactions” of any REMIC
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of such REMIC as defined in Section 860G(c) of the Code,
on any contribution to any REMIC hereunder after the Startup Day pursuant
to
Section 860G(d) of the Code, or any other tax is imposed, including, without
limitation, any minimum tax imposed upon any REMIC hereunder pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if
not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by
the
Trustee of any of its obligations under this
126
Agreement,
(ii) the Master Servicer, in the case of any such minimum tax, or if such
tax
arises out of or results from a breach by the Master Servicer or a Seller
of any
of their obligations under this Agreement, (iii) any Seller, if any such
tax
arises out of or results from that Seller’s obligation to repurchase a Mortgage
Loan pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in
the
event that the Trustee, the Master Servicer or any Seller fails to honor
its
obligations under the preceding clauses (i),(ii) or (iii), any such tax
will be
paid with amounts otherwise to be distributed to the Certificateholders,
as
provided in Section 3.08(b).
For
federal income tax purposes, the Trustee shall treat the following items
as
specified. The Trustee shall treat the Carryover Reserve Fund and the
Swap Trust (including the Swap Accounts) as an outside reserve fund within
the
meaning of Treasury Regulation 1.860G-2(h), neither of which is an asset
of any
REMIC created hereunder. The Carryover Reserve Fund shall be treated
as owned by the Holders of the Class C-P Certificates. The
Certificate Swap Account shall be treated as owned by the Holders of the
Class
C-P Certificates. The Class A-1-B Swap Account shall be treated as
owned by the Class A-1-B Swap Counterparty. The Trustee shall treat
the rights and deemed obligations of the Holders of the LIBOR Certificates
and
the Class C-P Certificates with respect the Carryover Reserve Fund and
the
Certificate Swap Account as rights and obligations with respect to a notional
principal contract written by (i) the Class A-1-B Swap Counterparty
in respect of any Net Rate Carryover distributed pursuant to Section 4.02(c)(4)
herein and (ii) the Holders of the Class C-P Certificates in respect of
any Net
Rate Carryover funded by the Certificate Swap Contract and in respect of
any
residual payments from such Certificate Swap Contract received by the Class
C-P
Certificates. The Trustee shall treat the rights of the Holders of
the Class C-P Certificates with respect to any Premium as an interest in
the
payments made pursuant to a mortgage loan purchase agreement under which
the
mortgage loan seller becomes obligated to repurchase the related Mortgage
Loan
from Countrywide (in its own capacity and not as the representative of
any
REMIC) under certain conditions. The Trustee shall treat the rights
and deemed obligations of the Holders of the Class A-1-B Certificates with
respect to the Class A-1-B Swap Contract as (i) the right to receive LIBOR
plus
the related Pass-Through Margin on a notional amount equal to the principal
balance of the related Master REMIC Interests, advances of unpaid Net Deferred
Interest and unpaid Net Rate Carryover from the Class A-1-B Swap Counterparty
and as (ii) the deemed obligation to (A) pay LIBOR plus the related margin
on a
notional amount equal to the principal balance of the related Master REMIC
Interest, (B) return the amounts of any advances to the Class A-1-B Swap
Counterparty and (C) compensate the Class A-1-B Swap Counterparty for standing
ready to make, and forebear the return of, any advances. Thus, the
LIBOR Certificates and the Class C-P Certificates shall be treated as
representing ownership of Master REMIC regular interests coupled with
contractual rights and obligations within the meaning of Treasury Regulation
1.860G-2(i). For purposes of determining the issue price of the Class
A-1-B Certificates, the Trustee shall assume that the Class A-1-B Swap
Contract
was acquired without either the Holders of the Class A-1-B Certificates
or the
Class A-1-B Swap Counterparty making any lump sum payment to the other.
The
Trustee shall treat any amount of Net Rate Carryover payable from Excess
Cashflow as first paid to the Class C-P Certificateholder and as then deposited
in the Carryover Reserve Fund. In addition, to the extent any amount
payable with respect to the Class A-1-B Certificates (as described in the
Preliminary Statement) is used to make payments to the Class A-1-B Swap
Counterparty, the Trustee shall treat the amount as first payable to the
Holders
of the Class A-1-B Certificates and as then paid by the Holders of the
127
related
Certificates with respect to their deemed obligations to the Class A-1-B
Swap
Counterparty as described above.
The
Trustee shall also treat any amount payable to a Class C-P Certificate
with
respect to the STR-C-OC Interest as deposited into the Carryover Reserve
Fund. To the extent the amount payable with respect to the
Certificate Swap Contract exceeds the amount payable with respect to the
Class
C-P Certificates, the Trustee, for federal income tax purposes, shall treat
such
excess as Realized Losses from Mortgage Loans and to the extent such Realized
Losses (if they had occurred) would have been allocated to a particular
class
(or classes) of Certificateholders, the Trustee shall treat such amount
as first
payable to the Certificateholders of such particular class (or classes)
as
principal and as then payable by such Certificateholders with respect to
a
notional principal contract
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SECTION
8.12.
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Monitoring
of Significance Percentage.
|
With
respect to each Distribution Date, the Trustee shall calculate the “significance
percentage” (as defined in Item 1115 of Regulation AB) of each derivative
instrument, if any, based on the aggregate Class Certificate Balance of
the
related Classes of Certificates for such derivative instrument and Distribution
Date (after all distributions to be made thereon on such Distribution Date)
and
based on the methodology provided in writing by or on behalf of Countrywide
no
later than the fifth Business Day preceding such Distribution
Date. On each Distribution Date, the Trustee shall provide to
Countrywide a written report (which written report may include similar
information with respect to other derivative instruments relating to
securitization transactions sponsored by Countrywide) specifying the
“significance percentage” of each derivative instrument, if any, for that
Distribution Date. If the “significance percentage” of any derivative
instrument exceeds 7.0% with respect to any Distribution Date, the Trustee
shall
make a separate notation thereof in the written report described in the
preceding sentence. Such written report may contain such assumptions
and disclaimers as are deemed necessary and appropriate by the
Trustee.
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ARTICLE
IX
TERMINATION
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|
SECTION
9.01.
|
Termination
upon Liquidation or Purchase of all Mortgage
Loans.
|
Subject
to Section 9.03 and Section 9.04, the obligations and responsibilities
of the
Depositor, the Sellers, the Master Servicer and the Trustee created hereby
with
respect to the Trust Fund shall terminate upon the earliest of (a) the
purchase
by the Master Servicer or NIM Insurer (the party exercising such purchase
option, the “Terminator”) of all of the Mortgage Loans (and REO Properties) at a
price (the “Termination Price”) equal to the sum of (i) 100% of the Stated
Principal Balance of each Mortgage Loan (other than in respect of an REO
Property), (ii) accrued interest thereon at the applicable Mortgage Rate
(or, if
such repurchase is effected by the Master Servicer, at the applicable Adjusted
Mortgage Rate), (iii) the appraised value of any REO Property (up to the
Stated
Principal Balance of the related Mortgage Loan), such appraisal to be conducted
by an appraiser mutually agreed upon by the Terminator and the Trustee,
(iv) any
remaining unpaid costs and damages incurred by the Trust Fund that arises
out of
a violation of any predatory or abusive lending law that also constitutes
an
actual breach of clause (46) on Schedule III-A, in all cases plus accrued
and
unpaid interest thereon at the applicable Adjusted Mortgage Rate and (v)
plus,
if the Terminator is the NIM Insurer, any unreimbursed Servicing Advances,
and
the principal portion of any unreimbursed Advances, made on the Mortgage
Loans
prior to the exercise of such repurchase, (b) the purchase by the Winning
Bidder
of all of the Mortgage Loans (and REO Properties) remaining in the Trust
Fund
after a Successful Auction is conducted pursuant to Section 9.04 and the
related
auction proceeds are distributed pursuant to Section 9.02(c) and (c) the
later
of (i) the maturity or other liquidation (or any Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and the disposition
of all
REO Property and (ii) the distribution to the Certificateholders of all
amounts
required to be distributed to them pursuant to this Agreement, as
applicable. In no event shall the trusts created hereby continue
beyond the earlier of (i) the expiration of 21 years from the death of
the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the
United States to the Court of St. James’s, living on the date hereof and (ii)
the Latest Possible Maturity Date.
The
right
to purchase all Mortgage Loans and REO Properties by the Terminator pursuant
to
clause (a) of the immediately preceding paragraph of this Section 9.01
shall be conditioned upon (1) the Pool Stated Principal Balance, at the
time of
any such repurchase, is less than or equal to ten percent (10%) of the
Cut-off
Date Pool Principal Balance and (2) unless the NIM Insurer otherwise consents,
the purchase price for such Mortgage Loans and REO Properties shall result
in a
final distribution on any NIM Insurer guaranteed notes that is sufficient
(x) to
pay such notes in full and (y) to pay any amounts due and payable to the
NIM
Insurer pursuant to the indenture related to such notes.
The
preceding notwithstanding, on any Distribution Date on which each of the
Master
Servicer and the NIM Insurer shall have the option to purchase all the
Mortgage
Loans (and REO Properties) remaining in the Trust Fund pursuant to this
Section
9.01, the NIM Insurer’s purchase option shall require the prior written consent
of the Master Servicer.
129
The
Swap
Trust shall terminate on the earliest of (i) the Swap Contract Termination
Date
of the last outstanding Swap Contract and (ii) the termination of this
Agreement.
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|
SECTION
9.02.
|
Final
Distribution on the
Certificates.
|
(a) Timing
of Notice of Final Distribution, Auction or Optional
Termination.
(i) If
on any Determination Date, the Master Servicer determines that there are
no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other
than the funds in the Certificate Account, then the Master Servicer shall
direct
the Trustee promptly to send a final distribution notice to each
Certificateholder in accordance with Section 9.02(b). In the event
such notice is given, the Master Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on or before the Business Day prior to the applicable
Distribution Date , net of any amounts permitted to be withdrawn pursuant
to
Section 3.08(a). Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for Release therefor,
the
Trustee shall promptly release to the Master Servicer the Mortgage Files
for the
Mortgage Loans.
(ii) If
the Directing Certificateholder chooses to exercise its right to cause
an
auction pursuant to Section 9.04, then the Directing Certificateholder
shall
provide written notice to the Master Servicer no later than the 1st day
of the
calendar month in which such auction is to be conducted. If a
Successful Auction is held pursuant to the requirements of Section 9.04,
then
the Trustee shall distribute the proceeds of the Successful Auction that
have
been remitted to the Distribution Account to the Certificateholders pursuant
to
Sections 4.02 and 9.04 hereof on the Distribution Date in the calendar
month
immediately following the calendar month in which the Successful Auction
occurs.
(iii) If
the Directing Certificateholder does not exercise its right to cause an
auction
pursuant to Section 9.04 and the Terminator (after prior written notice
to the
Master Servicer if the Terminator is the NIM Insurer) elects to terminate
the
Trust Fund pursuant to Section 9.01, then at least 20 days prior to the
date
notice is to be mailed to Certificateholders in accordance with Section
9.02(b),
the Terminator shall notify the Depositor and the Trustee of (a) its election
to
terminate the Trust Fund, (b) the Distribution Date on which it intends
to
terminate the Trust Fund pursuant to Section 9.01 and (c) the applicable
purchase price of the Mortgage Loans and REO Properties. In the event
such notice is given, the Terminator shall remit to the Master Servicer,
on or
before the Business Day prior to the final Distribution Date, for deposit
into
the Certificate Account, the Termination Price. The Master Servicer
shall cause all funds in the Certificate Account, including the Termination
Price, net of any amounts permitted to be withdrawn pursuant to Section
3.08(a),
be remitted to the Trustee for deposit in the Distribution Account on or
before
the Business Day prior to the applicable Distribution Date. Upon such
final deposit with respect to the Trust Fund and the receipt by the Trustee
of a
Request for Release therefor, the Trustee shall promptly release to the
Master
Servicer the Mortgage Files for the Mortgage Loans..
130
(b) Timing
of Notice to Certificateholders of Termination. Notice of any termination
of the Trust Fund (whether because of a Successful Auction, Optional Termination
or otherwise), specifying the Distribution Date on which Certificateholders
may
surrender their Certificates for payment of the final distribution and
cancellation, shall be given promptly by the Trustee by letter to
Certificateholders mailed not earlier than the 10th day and no later than
the
15th day of the month next preceding the month of such final
distribution. Any such notice shall specify (i) the Distribution Date
upon which final distribution on the Certificates will be made upon presentation
and surrender of the Certificates at the office therein designated, (ii)
the
amount of such final distribution, (iii) the location of the office or
agency at
which such presentation and surrender must be made, and (iv) that the Record
Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Master Servicer
will give such notice to each Rating Agency at the time such notice is
given to
Certificateholders.
(c) Upon
presentation and surrender of the Certificates, the Trustee shall cause
to be
distributed to the Certificateholders of each Class, in each case on the
final
Distribution Date and in the order set forth in Section 4.02 (and with
respect
to the Class C-P Certificates after a Successful Auction, Section 9.04(g)
and
(k)), in proportion to their respective Percentage Interests, with respect
to
Certificateholders of the same Class, an amount equal to (i) as to each
Class of
Regular Certificates, the Certificate Balance thereof plus accrued interest
thereon (or on its Notional Amount, if applicable) in the case of an interest
bearing Certificate and (ii) as to the Residual Certificates, the amount,
if
any, which remains on deposit in the Distribution Account (other than the
amounts retained to meet claims) after application pursuant to clause (i)
above. Notwithstanding the reduction of the Class Certificate Balance
of any Class of Certificates to zero, such Class will be outstanding hereunder
(solely for the purpose of receiving distributions and not for any other
purpose) until the termination of the respective obligations and
responsibilities of the Depositor, each Seller, the Master Servicer and
the
Trustee hereunder in accordance with Article IX.
(d) In
the event that any affected Certificateholders shall not surrender their
respective Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give
a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation,
the
Trustee may take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining Certificateholders concerning surrender
of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered
for
cancellation, then the Class A-R Certificateholders shall be entitled to
all
unclaimed funds and other assets of the Trust Fund which remain subject
to this
Agreement.
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|
SECTION
9.03.
|
Additional
Termination Requirements.
|
(a) In
the event the Terminator exercises its purchase option as provided in Section
9.01 or there is a Successful Auction pursuant to Section 9.04, the Trust
Fund
shall be terminated in accordance with the following additional requirements,
unless the Trustee has been supplied
131
with
an
Opinion of Counsel, at the expense of the Terminator (or the Directing
Certificateholder, in the case of a Successful Auction), to the effect
that the
failure to comply with the requirements of this Section 9.03 will not (i)
result
in the imposition of taxes on “prohibited transactions” on any REMIC as defined
in section 860F of the Code, or (ii) cause any REMIC created hereunder
to fail
to qualify as a REMIC at any time that any Certificates are
outstanding:
(1) The
Master Servicer shall establish a 90-day liquidation period and notify
the
Trustee thereof, which shall in turn specify the first day of such period
in a
statement attached to the Trust Fund’s final Tax Return pursuant to Treasury
Regulation Section 1.860F-1. The Master Servicer shall prepare a plan
of complete liquidation and shall otherwise satisfy all the requirements
of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel delivered to the Trustee
and
the Depositor obtained at the expense of the Terminator (or the Directing
Certificateholder, in the case of a Successful Auction); and
(2) Within
90 days after the time of adoption of such a plan of complete liquidation,
the
Trustee shall sell all of the assets of the Trust Fund to the Terminator
(or the
Winning Bidder in the case of a Successful Auction) for cash in accordance
with
Section 9.01 and, if applicable, Section 9.04.
(b) The
Trustee, as agent for any REMIC created hereunder, hereby agrees to adopt
and
sign such a plan of complete liquidation upon the written request of the
Master
Servicer, and the receipt of the Opinion of Counsel referred to in Section
9.03(a)(1) and to take such other action in connection therewith as may
be
reasonably requested by the Terminator or the Directing Certificateholder,
as
applicable.
(c) By
their acceptance of the Certificates, the Holders thereof hereby authorize
the
Master Servicer to prepare and the Trustee to adopt and sign a plan of
complete
liquidation.
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|
SECTION
9.04.
|
Auction
of the Mortgage Loans and REO
Properties.
|
(a) On
or after the Optional Termination Date, the Holder of the largest Percentage
Interest of the Class C-P Certificates (the “Directing Certificateholder”), at
its option, may by written instruction direct the Trustee to solicit bids
in a
commercially reasonable manner from Qualified Bidders for the purchase
of the
Mortgage Loans and any REO Properties owned by the Trust Fund. The
Directing Certificateholder shall provide written notice to the Master
Servicer
as provided in Section 9.02(a)(ii). Any such direction by the
Directing Certificateholder shall (i) be made in writing and (ii) include
contact information for the Directing Certificateholder. Upon receipt
of any direction from the Directing Certificateholder meeting the requirements
of the immediately preceding sentence, the Trustee shall commence the auction
process described in this Section 9.04. The Trustee may engage a
financial advisor, which financial advisor may be Countrywide or one of
its
affiliates, in order to perform any of the duties of the Trustee specified
in
Section 9.04. To effectuate such sale, the Trustee (or such financial
advisor) shall follow the procedures specified in Section 9.04(b)
below. The Trustee shall facilitate the sale of the assets in the
Trust Fund to the Winning Bidder so long as the Trustee (or any financial
advisor on its behalf) has received at least three bids from Qualified
Bidders
and at least one such bid is at least equal to the Acceptable Bid
Amount. In the event the auction is not a Successful Auction, the
132
Trustee
may repeat this process periodically, at the direction of the Directing
Certificateholder until a Successful Auction is conducted or the Terminator
purchases all of the Mortgage Loans and REO Properties pursuant to Section
9.01. The Trustee shall be reimbursed for its reasonable costs,
including expenses associated with engaging any financial advisor, from
the
Directing Certificateholder if the auction is not a Successful Auction,
and, if
the auction is a Successful Auction, from the proceeds of the auction before
the
proceeds are distributed to Certificateholders.
The
Trustee, upon inquiry from the Master Servicer, agrees to provide the Master
Servicer with the Percentage Interest of Class C-P Certificates held by
the
Directing Certificateholder.
If
Countrywide or any of its affiliates is the Directing Certificateholder,
such
Directing Certificateholder shall not have the right to direct the Trustee
to
solicit bids for the purchase of the Mortgage Loans and any REO Properties
owned
by the Trust Fund.
(b) The
Trustee (or any financial advisor on its behalf) shall solicit bids for
the
purchase of assets owned by the Trust Fund as provided in Section 9.04(a)
not
later than two Business Days following receipt of the Directing
Certificateholder’s written instruction by contacting by telephone or in writing
at least three Qualified Bidders and requesting that each Qualified Bidder
bid
on the Mortgage Loans and REO Properties owned by the Trust Fund (on a
non-recourse basis with no representations or warranties of any nature
whatsoever made by the Trustee (or such financial advisor)) and providing
to the
Qualified Bidder any information relating to the Mortgage Loans and REO
Properties owned by the Trust Fund reasonably requested by such Qualified
Bidder, subject to the Qualified Bidder’s written agreement not to use such
information in the purchase or sale of Certificates (it being understood
no
Qualified Bidder shall be obligated to submit a bid or take any other action
in
connection with any auction). The Master Servicer shall cooperate
with the Trustee (and any financial advisor on its behalf) during the auction
process. At 1:00 p.m. New York time on the second Business Day after
the date on which bids are last solicited (such second day, the “Bid
Determination Date”), the Trustee (or any financial advisor on its behalf) shall
determine the highest bid based on the bids received by the Trustee (or
any
financial advisor on its behalf) on or before such time.
(c) If
the highest of the bids that are submitted by Qualified Bidders is less
than the
Minimum Auction Amount, then the Trustee shall promptly inform the Directing
Certificateholder of the amount of the shortfall and indicate that the
Directing
Certificateholder must notify the Trustee within 24 hours whether it will
contribute the amount of such difference (such difference being the “Auction
Supplement Amount”) so that the auction will be a Successful
Auction. If the highest of the bids that are submitted by Qualified
Bidders is equal to or greater than the Minimum Auction Amount, or if the
Directing Certificateholder notifies the Trustee within 24 hours of its
receipt
of notice as described in the previous sentence that it will contribute
the
Auction Supplement Amount, then the Trustee (or any financial advisor on
its
behalf) shall notify promptly (but in any event no later than 3:00 p.m.
New York
time on the Business Day following the Bid Determination Date) the Winning
Bidder that its bid was the highest bid and shall provide wiring instructions
for payment of the bid amount into the Certificate Account by 12:00 p.m.
New
York time on the second Business Day following the Bid Determination Date
and,
if applicable, provide the Directing Certificateholder with wiring
133
instructions
for payment of the Auction Supplement Amount into the Certificate Account
by
such time.
(d) If
such Winning Bidder does not wire the bid amount so that it is received
in the
Certificate Account in immediately available funds by 12:00 p.m. New York
time
on the second Business Day following the Bid Determination Date, the Trustee
shall repeat the process specified in the preceding paragraph with respect
to
the second highest bid, but only if such bid is at least the Minimum Auction
Amount or the Directing Certificateholder agrees to pay the new Auction
Supplement Amount. If no other bids are available to be accepted
pursuant to the preceding sentence, or if the amount remitted by the Winning
Bidder plus any Auction Supplement Amount remitted by the Directing
Certificateholder is less than the Minimum Auction Amount, then the auction
shall be considered to have failed for all purposes.
(e) The
Trustee shall not be liable with regard to the selection or engagement
of, or
for any act or omission of, a financial advisor pursuant to this Section
9.04 if
the Trustee engages Countrywide to be such financial advisor.
(f) In
the event of a Successful Auction and so long as the Winning Bidder has
wired
its bid amount (and the Directing Certificateholder has wired any Auction
Supplement Amount, if applicable) to the Certificate Account as provided
above,
then the Trustee shall promptly convey to the Winning Bidder the Mortgage
Loans
and REO Properties owned by the Trust Fund. The Master Servicer shall
take all reasonable actions requested by the Trustee to effect such conveyance,
including remitting to the Distribution Account from the Certificate Account,
on
the Business Day prior to the Distribution Date on which final distribution
on
the Certificates is required to be paid under this Agreement, all amounts
on
deposit in the Certificate Account, net of any amounts permitted to be
withdrawn
pursuant to Section 3.08(a) and amounts owing to the Trustee in reimbursement
of
its reasonable costs, including expenses associated with engaging any financial
advisor, incurred in connection with the auction process. Such
amounts owed to the Trustee shall be withdrawn from the Certificate Account
by
the Master Servicer and paid to the Trustee.
(g) Any
amount paid by the Winning Bidder in excess of the Minimum Auction Amount
shall
be distributed by the Trustee pro rata to the Class C-P Certificates on
the
Distribution Date on which the final distribution on the Certificates is
made.
(h) In
the event of a Successful Auction and to the extent the Certificate Swap
Contract is still outstanding, the Directing Certificateholder shall
either:
(i) if
any Certificate Swap Termination Payment would be payable by the Swap Contract
Administrator to the Certificate Swap Counterparty were the Certificate
Swap
Contract to be terminated following final distribution on the Certificates,
either:
(A) pay
to the Swap Contract Administrator any such Swap Termination Payment;
or
(B) accept
assignment of the Certificate Swap Contract to the extent that the Directing
Certificateholder is an acceptable counterparty for the Certificate Swap
Counterparty;
134
(ii) if
any Certificate Swap Termination Payment would be payable by the Certificate
Swap Counterparty to the Swap Contract Administrator were the Certificate
Swap
Contract to be terminated following final distribution on the Certificates,
either
(A) (i)
if the Directing Certificateholder does not own 100% of the Class C-P
Certificates, accept assignment of the Certificate Swap Contract to the
extent
that the Directing Certificateholder is an acceptable counterparty for
the
Certificate Swap Counterparty and pay to the Swap Contract Administrator
the
Certificate Swap Termination Payment that would be owed to the Swap Contact
Administrator by the Certificate Swap Counterparty if the Certificate Swap
Contract were terminated by the Swap Contract Administrator following
distribution on the Certificates or (ii) if the Directing Certificateholder
owns
100% of the Class C-P Certificates, accept assignment of the Certificate
Swap
Contract to the extent that the Directing Certificateholder is an acceptable
counterparty for the Certificate Swap Counterparty; or
(B) instruct
the Swap Contract Administrator to accept from the Certificate Swap Counterparty
any Swap Termination Payment that would be owed to the Swap Contract
Administrator.
(i) Any
amounts paid to the Swap Contract Administrator pursuant to subsection
(h)(ii)
above shall be distributed to the Class C-P Certificates, pro rata, based
on
entitlement, by the Swap Contract Administrator.
(j) The
Master Servicer may purchase the Mortgage Loans and REO Properties owned
by the
Trust Fund for its own account pursuant to Section 9.01 or consent to the
NIM
Insurer’s purchase of the Mortgage Loans and REO Properties owned by the Trust
Fund pursuant to Section 9.01 only if (1) the Directing Certificateholder
chooses not to request an auction as described above or if the immediately
preceding auction is unsuccessful or (2) the Master Servicer notifies the
Directing Certificateholder no later than 30 days prior to the date on
which the
Master Servicer or the NIM Insurer, as applicable, intends to effect the
purchase of the Mortgage Loans and REO Properties owned by the Trust Fund
and
the Directing Certificateholder does not direct the Trustee to conduct
an
auction prior to the end of that 30-day period.
(k) If
the Directing Certificateholder pays any Auction Supplement Amount pursuant
to
Section 9.04(c), on the final Distribution Date any amounts to be distributed
to
the Class C-P Certificates pursuant to Section 4.02 will be distributed
as
follows, first to the Directing Certificateholder, in an amount up to such
Auction Supplement Amount and second to the Class C-P Certificates, pro
rata. For federal income tax purposes, such Auction Supplement Amount
so distributed shall be deemed paid pro rata to the Class C-P Certificates,
and
the portion of such amounts deemed distributed to holders of the Class
C-P
Certificates other than the Directing Certificateholder shall be deemed
paid
from such other holders to the Directing Certificateholder.
135
ARTICLE
X
MISCELLANEOUS
PROVISIONS
|
|
SECTION
10.01.
|
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, each Seller,
the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any
defective provision in this Agreement or to supplement any provision in
this
Agreement which may be inconsistent with any other provision in this Agreement,
(iii) to conform this Agreement to the Prospectus and Prospectus Supplement
provided to investors in connection with the initial offering of the
Certificates, (iv) to add to the duties of the Depositor, any Seller or
the
Master Servicer, (v) to modify, alter, amend, add to or rescind any of
the terms
or provisions contained in this Agreement to comply with any rules or
regulations promulgated by the Securities and Exchange Commission from
time to
time, (vi) to add any other provisions with respect to matters or questions
arising hereunder or (vii) to modify, alter, amend, add to or rescind any
of the
terms or provisions contained in this Agreement; provided that any action
pursuant to clauses (vi) or (vii) above shall not, as evidenced by an Opinion
of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee
or the
Trust Fund), adversely affect in any material respect the interests of
any
Certificateholder; provided, however, that the amendment shall be deemed
not to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating
Agency
stating that the amendment would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent
a
determination only as to the credit issues affecting any such
rating. Notwithstanding the foregoing, no amendment that
significantly changes the permitted activities of the trust created by
this
Agreement may be made without the consent of a Majority in Interest of
each
Class of Certificates affected by such amendment. Each party to this
Agreement hereby agrees that it will cooperate with each other party in
amending
this Agreement pursuant to clause (v) above. The Trustee, each
Seller, the Depositor and the Master Servicer also may at any time and
from time
to time amend this Agreement without the consent of the Certificateholders
to
modify, eliminate or add to any of its provisions to such extent as shall
be
necessary or helpful to (i) maintain the qualification of any REMIC as
a REMIC
under the Code, (ii) avoid or minimize the risk of the imposition of any
tax on
any REMIC pursuant to the Code that would be a claim at any time prior
to the
final redemption of the Certificates or (iii) comply with any other requirements
of the Code, provided that the Trustee has been provided an Opinion of
Counsel,
which opinion shall be an expense of the party requesting such opinion
but in
any case shall not be an expense of the Trustee or the Trust Fund, to the
effect
that such action is necessary or helpful to, as applicable, (i) maintain
such
qualification, (ii) avoid or minimize the risk of the imposition of such
a tax
or (iii) comply with any such requirements of the Code.
This
Agreement may also be amended from time to time by the Depositor, each
Seller,
the Master Servicer and the Trustee with the consent of the Holders of
a
Majority in Interest of each Class of Certificates affected thereby for
the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders of such Certificates; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments
136
required
to be distributed on any Certificate without the consent of the Holder
of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as described
in
(i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating 66-2/3%
or
(iii) reduce the aforesaid percentages of Certificates the Holders of which
are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding
any contrary provision of this Agreement, no amendment shall adversely
affect in
any material respect a Swap Counterparty without the prior written consent
of
such Swap Counterparty, which consent shall not be unreasonably
withheld. Countrywide shall provide each Swap Counterparty with prior
written notice of any proposed material amendment of this
Agreement.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent
to any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel, which opinion shall not be an expense of the Trustee or the Trust
Fund,
to the effect that such amendment will not cause the imposition of any
tax on
any REMIC or the Certificateholders or cause any REMIC to fail to qualify
as a
REMIC at any time that any Certificates are outstanding.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder, each Swap
Counterparty and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section
to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of
the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment
without
receiving an Opinion of Counsel (which Opinion shall not be an expense
of the
Trustee or the Trust Fund), satisfactory to the Trustee that (i) such
amendment is permitted and is not prohibited by this Agreement and that
all
requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any
material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
|
|
SECTION
10.02.
|
Recordation
of Agreement; Counterparts.
|
This
Agreement is subject to recordation in all appropriate public offices for
real
property records in all the counties or other comparable jurisdictions
in which
any or all of the properties subject to the Mortgages are situated, and
in any
other appropriate public recording office or elsewhere, such recordation
to be
effected by the Master Servicer at its expense, but only upon direction
by the
Trustee accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the
Certificateholders.
137
For
the
purpose of facilitating the recordation of this Agreement as in this Agreement
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed
to be
an original, and such counterparts shall constitute but one and the same
instrument.
|
|
SECTION
10.03.
|
Governing
Law.
|
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH
LAWS.
|
|
SECTION
10.04.
|
Intention
of Parties.
|
(a) It
is the express intent of the parties hereto that the conveyance of the
(i) Mortgage Loans by the Sellers to the Depositor and (ii) Trust Fund
by the Depositor to the Trustee each be, and be construed as, an
absolute sale thereof to the Trustee. It is, further, not the
intention of the parties that such conveyances be deemed a pledge
thereof. However, in the event that, notwithstanding the intent of
the parties, such assets are held to be the property of any Seller or the
Depositor, as the case may be, or if for any other reason this Agreement
or any
Supplemental Transfer Agreement is held or deemed to create a security
interest
in either such assets, then (i) this Agreement or any Supplemental Transfer
Agreement shall be deemed to be a security agreement (within the meaning
of the
Uniform Commercial Code of the State of New York) with respect to all such
assets and security interests and (ii) the conveyances provided for in this
Agreement or any Supplemental Transfer Agreement shall be deemed to be
an
assignment and a grant pursuant to the terms of this Agreement (a) by each
Seller to the Depositor or (b) by the Depositor to the Trustee, for the
benefit of the Certificateholders and each Swap Counterparty, of a security
interest in all of the assets that constitute the Trust Fund, whether now
owned
or hereafter acquired.
Each
Seller and the Depositor for the benefit of the Certificateholders and
each Swap
Counterparty shall, to the extent consistent with this Agreement, take
such
actions as may be necessary to ensure that, if this Agreement were deemed
to
create a security interest in the Trust Fund, such security interest would
be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any security
interest
granted or assigned to the Trustee for the benefit of the Certificateholders
and
each Swap Counterparty.
(b) The
Depositor hereby represents that:
(i) This
Agreement creates a valid and continuing security interest (as defined
in the
Uniform Commercial Code as enacted in the State of New York (the “NY UCC”)) in
the Mortgage Notes in favor of the Trustee, which security interest is
prior to
all other
138
liens,
and is enforceable as such as against creditors
of and purchasers from the Depositor.
(ii) The
Mortgage Notes constitutes “instruments” within the meaning of the NY
UCC.
(iii) Immediately
prior to the assignment of each Mortgage Loan to the Trustee, the Depositor
owns
and has good and marketable title to such Mortgage Loan free and clear
of any
lien, claim or encumbrance of any Person.
(iv) The
Depositor has received all consents and approvals required by the terms
of the
Mortgage Loans to the sale of the Mortgage Loans hereunder to the
Trustee.
(v) All
original executed copies of each Mortgage Note that are required to be
delivered
to the Trustee pursuant to Section 2.01 have been delivered to the
Trustee.
(vi) Other
than the security interest granted to the Trustee pursuant to this Agreement,
the Depositor has not pledged, assigned, sold, granted a security interest
in,
or otherwise conveyed any of the Mortgage Loans. The Depositor has
not authorized the filing of and is not aware of any financing statements
against the Depositor that include a description of collateral covering
the
Mortgage Loans other than any financing statement relating to the security
interest granted to the Trustee hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor.
The
parties to this Agreement shall not waive any of the representations set
forth
in this Section 10.04(b) without obtaining a confirmation of the then-current
ratings of the Certificates.
(c) The
Master Servicer shall take such action as is reasonably necessary to maintain
the perfection and priority of the security interest of the Trustee in
the
Mortgage Loans; provided, however, that the obligation to deliver the Mortgage
File to the Trustee pursuant to Section 2.01 shall be solely the Depositor’s
obligation and the Master Servicer shall not be responsible for the safekeeping
of the Mortgage Files by the Trustee.
(d) It
is understood and agreed that the representations and warranties set forth
in
subsection (b) above shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach
of any of the foregoing representations and warranties set forth in subsection
(b) above, which breach materially and adversely affects the interest of
the
Certificateholders, the party discovering such breach shall give prompt
written
notice to the others and to each Rating Agency.
|
|
SECTION
10.05.
|
Notices.
|
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual
knowledge:
1. Any
material change or amendment to this Agreement;
139
2.
The occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee and the
appointment of any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to
Section 2.03;
5. The
final payment to Certificateholders; and
6. Any
rating action involving the long-term credit rating of Countrywide, which
notice
shall be made by first class mail within two Business Days after the
Trustee gains actual knowledge of such a rating action.
In
addition, the Trustee shall promptly furnish to each Rating Agency copies
of the
following:
1. Each
report
to Certificateholders described in Section 4.06;
2. Each
annual
statement as to compliance described in Section 3.16;
3. Each
annual
independent public accountants’ servicing report described in
Section 11.07; and
4. Any
notice of
a purchase of a Mortgage Loan pursuant to Section 2.02, 2.03 or
3.11.
All
directions, demands and notices under this Agreement shall be in writing
and
shall be deemed to have been duly given when delivered by first class mail,
by
courier or by facsimile transmission to (1) in the case of the Depositor,
CWALT,
Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile
number: (000) 000-0000, Attention: Xxxx Xxxxx, (2) in the
case of Countrywide, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxx Xxxxx or such other address as may be hereafter
furnished to the Depositor and the Trustee by Countrywide in writing, (3)
in the
case of Park Granada LLC, c/o Countrywide Financial Corporation, 0000 Xxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Granada in
writing,
(4) in the case of Park Monaco Inc., c/o Countrywide Financial Corporation,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Monaco in
writing,
(5) in the case of Park Sienna LLC, c/o Countrywide Financial Corporation,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Sienna in
writing,
(6) in the case of the Master Servicer, Countrywide Home Loans Servicing
LP, 000
Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, facsimile number (000)
000-0000,
Attention: Xxxx Xxxx, or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing,
(7) in the case of the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx,
0
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile number: (000) 000-0000,
Attention: Mortgage-Backed Securities Group, CWALT, Inc. Series 2007-OH3,
or
such
140
other
address as the Trustee may hereafter furnish to the Depositor or Master
Servicer, (8) in the case of the Rating Agencies, the address specified
therefor
in the definition corresponding to the name of such Rating Agency, (9)
in the
case of the Certificate Swap Counterparty, Xxxxxx Brothers Special Financing
Inc., c/x Xxxxxx Brothers Inc., Corporate Advisory Division Transaction
Management Group, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile
number: (000) 000-0000, Attention: Documentation Manager, or such other
address
as the Certificate Swap Counterparty may hereafter furnish to the Depositor
or
Master Servicer, and (10) in the case of the Class A-1-B Swap Counterparty,
BNP
Paribas, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile number:
(000)
000-0000, Attention: Legal and Transaction Management Group – ISDA, or such
other address as the Class A-1-B Swap Counterparty may hereafter furnish
to the
Depositor or Master Servicer. Notices to Certificateholders shall be
deemed given when mailed, first class postage prepaid, to their respective
addresses appearing in the Certificate Register.
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|
SECTION
10.06.
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders of the
Certificates.
|
|
SECTION
10.07.
|
Assignment.
|
Notwithstanding
anything to the contrary contained in this Agreement, except as provided
in
Section 6.02, this Agreement may not be assigned by the Master Servicer
without the prior written consent of the Trustee and the Depositor.
|
|
SECTION
10.08.
|
Limitation
on Rights of
Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the
trust
created by this Agreement, or otherwise affect the rights, obligations
and
liabilities of the parties hereto or any of them.
No
Certificateholder shall have any right to vote (except as provided in this
Agreement) or in any manner otherwise control the operation and management
of
the Trust Fund, or the obligations of the parties hereto, nor shall anything
set
forth in this Agreement or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time
as
partners or members of an association; nor shall any Certificateholder
be under
any liability to any third party by reason of any action taken by the parties
to
this Agreement pursuant to any provision of this Agreement.
No
Certificateholder shall have any right by virtue or by availing itself
of any
provisions of this Agreement to institute any suit, action or proceeding
in
equity or at law upon or under or with respect to this Agreement, unless
such
Holder previously shall have given to the Trustee a written notice of an
Event
of Default and of the continuance thereof, as provided in this
141
Agreement,
and unless the Holders of Certificates evidencing not less than 25% of
the
Voting Rights evidenced by the Certificates shall also have made written
request
to the Trustee to institute such action, suit or proceeding in its own
name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities
to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt
of
such notice, request and offer of indemnity shall have neglected or refused
to
institute any such action, suit or proceeding; it being understood and
intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain
or seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner provided in this Agreement
and
for the common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 10.08, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be
given either at law or in equity.
|
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
The
Master Servicer agrees that, on reasonable prior notice, it will permit
and will
cause each Subservicer to permit any representative of the Depositor or
the
Trustee during the Master Servicer’s normal business hours, to examine all the
books of account, records, reports and other papers of the Master Servicer
relating to the Mortgage Loans, to make copies and extracts therefrom,
to cause
such books to be audited by independent certified public accountants selected
by
the Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Master Servicer hereby authorizes
said accountants to discuss with such representative such affairs, finances
and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the
Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses
shall be
borne by the Master Servicer or the related Subservicer.
|
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust
Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof
by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
|
|
SECTION
10.11.
|
[Reserved].
|
|
|
SECTION
10.12.
|
Protection
of Assets.
|
142
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this Agreement, the Trust Fund created
by
this Agreement is not authorized and has no power to:
(i) borrow
money or issue debt;
(ii) merge
with another entity, reorganize, liquidate or sell assets; or
(iii) engage
in any business or activities.
(b) Each
party to this Agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form
of
insolvency proceeding until the date that is one year and one day after
the
Certificates have been paid.
|
|
SECTION
10.13.
|
Rights
of NIM Insurer
|
(a) The
rights of the NIM Insurer under this Agreement shall exist only so long
as
either:
(1) the
notes certain, payments on which are guaranteed by the NIM Insurer, remain
outstanding or
(2) the
NIM Insurer is owed amounts paid by it with respect to that
guaranty.
(b) The
rights of the NIM Insurer under this Agreement are exercisable by the NIM
Insurer only so long as no default by the NIM Insurer under its guaranty
of
certain payments under notes backed or secured by the Class C-P Certificates
has
occurred and is continuing. If the NIM Insurer is the subject of any insolvency
proceeding, the rights of the NIM Insurer under this Agreement will be
exercisable by the NIM Insurer only so long as:
(1) the
obligations of the NIM Insurer under its guaranty of notes backed or secured
by
the Class C-P Certificates have not been disavowed and
(2) Countrywide
and the Trustee have received reasonable assurances that the NIM Insurer
will be
able to satisfy its obligations under its guaranty of notes backed or secured
by
the Class C-P Certificates.
(c) The
NIM Insurer is a third party beneficiary of this Agreement to the same
extent as
if it were a party to this Agreement and may enforce any of those rights
under
this Agreement.
(d) A
copy of any documents of any nature required by this Agreement to be delivered
by the Trustee, or to the Trustee or the Rating Agencies, shall in each
case at
the same time also be delivered to the NIM Insurer. Any notices required
to be
given by the Trustee, or to the Trustee or the Rating Agencies, shall in
each
case at the same time also be given to the NIM Insurer. If the
Trustee receives a notice or document that is required hereunder to be
delivered
to the NIM Insurer, and if such notice or document does not indicate that
a copy
thereof has been previously sent to the NIM Insurer, the Trustee shall
send the
NIM Insurer a copy of such notice or document. If such document is an
Opinion of Counsel, the NIM Insurer shall be an addressee
143
thereof
or such Opinion of Counsel shall contain language permitting the NIM Insurer
to
rely thereon as if the NIM Insurer were an addressee thereof.
(e) Anything
in this Agreement that is conditioned on not resulting in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies shall also be conditioned on not resulting in the downgrading
or
withdrawal of the ratings then assigned by the Rating Agencies to the notes
backed or secured by the Class C-P Certificates (without giving effect
to any
policy or guaranty provided by the NIM Insurer).
144
ARTICLE
XI
EXCHANGE
ACT REPORTING
|
|
SECTION
11.01.
|
Filing
Obligations.
|
The
Master Servicer, the Trustee and each Seller shall reasonably cooperate
with the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust
Fund. In addition to the information specified below, if so requested
by the Depositor for the purpose of satisfying its reporting obligation
under
the Exchange Act, the Master Servicer, the Trustee and each Seller shall
(and
the Master Servicer shall cause each Subservicer to) provide the Depositor
with
(a) such information which is available to such Person without unreasonable
effort or expense and within such timeframe as may be reasonably requested
by
the Depositor to comply with the Depositor’s reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is
not a party) to any agreement or amendment required to be filed, copies
of such
agreement or amendment in XXXXX-compatible form.
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|
SECTION
11.02.
|
Form
10-D Filings.
|
(a) In
accordance with the Exchange Act, the Trustee shall prepare for filing
and file
within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act) with the Commission with respect to the Trust Fund,
a
Form 10-D with copies of the Monthly Statement and, to the extent delivered
to
the Trustee, no later than 10 days following the Distribution Date, such
other
information identified by the Depositor or the Master Servicer, in writing,
to
be filed with the Commission (such other information, the “Additional Designated
Information”). If the Depositor or Master Servicer directs that any
Additional Designated Information is to be filed with any Form 10-D, the
Depositor or Master Servicer, as the case may be, shall specify the Item
on Form
10-D to which such information is responsive and, with respect to any Exhibit
to
be filed on Form 10-D, the Exhibit number. Any information to be
filed on Form 10-D shall be delivered to the Trustee in XXXXX-compatible
form or
as otherwise agreed upon by the Trustee and the Depositor or the Master
Servicer, as the case may be, at the Depositor’s expense, and any necessary
conversion to XXXXX-compatible format will be at the Depositor’s
expense. At the reasonable request of, and in accordance with the
reasonable directions of, the Depositor or the Master Servicer, subject
to the
two preceding sentences, the Trustee shall prepare for filing and file
an
amendment to any Form 10-D previously filed with the Commission with respect
to
the Trust Fund. The Master Servicer shall sign the Form 10-D filed on
behalf of the Trust Fund.
(b) No
later than each Distribution Date, each of the Master Servicer and the
Trustee
shall notify (and the Master Servicer shall cause any Subservicer to notify)
the
Depositor and the Master Servicer of any Form 10-D Disclosure Item, together
with a description of any such Form 10-D Disclosure Item in form and substance
reasonably acceptable to the Depositor. In addition to such
information as the Master Servicer and the Trustee are obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Depositor, each of the Master Servicer and the Trustee shall provide such
information which is available to the Master Servicer and the Trustee,
as
applicable, without unreasonable effort or expense regarding the performance
or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided
145
by
the
Master Servicer) as is reasonably required to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the delivery
of the reports specified in Section 4.06(c) in the case of the Master Servicer
and the Monthly Statement in the case of the Trustee, commencing with the
first
such report due not less than five Business Days following such
request.
(c) The
Trustee shall not have any responsibility to file any items (other than
those
generated by it) that have not been received in a format suitable (or readily
convertible into a format suitable) for electronic filing via the XXXXX
system
and shall not have any responsibility to convert any such items to such
format
(other than those items generated by it or that are readily convertible
to such
format). The Trustee shall have no liability to the
Certificateholders, the Trust Fund, the Master Servicer, the Depositor
or the
NIM Insurer with respect to any failure to properly prepare or file any
of Form
10-D to the extent that such failure is not the result of any negligence,
bad
faith or willful misconduct on its part.
|
|
SECTION
11.03.
|
Form
8-K Filings.
|
The
Master Servicer shall prepare and file on behalf of the Trust Fund any
Form 8-K
required by the Exchange Act. Each Form 8-K must be signed by the
Master Servicer. Each of the Master Servicer (and the Master Servicer
shall cause any Subservicer to promptly notify), and the Trustee shall
promptly
notify the Depositor and the Master Servicer (if the notifying party is
not the
Master Servicer), but in no event later than one (1) Business Day after
its
occurrence, of any Reportable Event of which it has actual
knowledge. Each Person shall be deemed to have actual knowledge of
any such event to the extent that it relates to such Person or any action
or
failure to act by such Person. Concurrently with any transfer of
Supplemental Mortgage Loans, Countrywide shall notify the Depositor and
the
Master Servicer, if any material pool characteristic of the actual asset
pool at
the time of issuance of the Certificates differs by 5% or more (other than
as a
result of the pool assets converting into cash in accordance with their
terms)
from the description of the asset pool in the Prospectus
Supplement.
|
|
SECTION
11.04.
|
Form
10-K Filings.
|
Prior
to
March 30th of each year, commencing in 2008 (or such earlier date as may
be
required by the Exchange Act), the Depositor shall prepare and file on
behalf of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the
Master Servicer shall sign each Form 10-K filed on behalf of the Trust
Fund. Such Form 10-K shall include as exhibits each (i) annual
compliance statement described under Section 3.16, (ii) annual report on
assessments of compliance with servicing criteria described under Section
11.07
and (iii) accountant’s report described under Section 11.07. Each
Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required
to be
included therewith, as described in Section 11.05.
If
the
Item 1119 Parties listed on Exhibit X have changed since the Closing Date,
no
later than March 1 of each year, the Master Servicer shall provide each
of the
Master Servicer (and the Master Servicer shall provide any Subservicer)
and the
Trustee with an updated Exhibit X setting forth the Item 1119
Parties. No later than March 15 of each year, commencing in 2008, the
Master Servicer and the Trustee shall notify (and the Master Servicer shall
cause any Subservicer
146
to
notify) the Depositor and the Master Servicer of any Form 10-K Disclosure
Item,
together with a description of any such Form 10-K Disclosure Item in form
and
substance reasonably acceptable to the Depositor. Additionally, each
of the Master Servicer and the Trustee shall provide, and shall cause each
Reporting Subcontractor retained by the Master Servicer or the Trustee,
as
applicable, and in the case of the Master Servicer shall cause each Subservicer,
to provide, the following information no later than March 15 of each year
in
which a Form 10-K is required to be filed on behalf of the Trust Fund:
(i) if
such Person’s report on assessment of compliance with servicing criteria
described under Section 11.07 or related registered public accounting firm
attestation report described under Section 11.07 identifies any material
instance of noncompliance, notification of such instance of noncompliance
and
(ii) if any such Person’s report on assessment of compliance with servicing
criteria or related registered public accounting firm attestation report
is not
provided to be filed as an exhibit to such Form 10-K, information detailing
the
explanation why such report is not included.
|
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”) required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section
302
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof
by the
Commission’s staff)). No later than March 15 of each year, beginning
in 2008, the Master Servicer and the Trustee shall (unless such person
is the
Certifying Person), and the Master Servicer shall cause each Subservicer
and
each Reporting Subcontractor and the Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”) a certification (each, a “Performance
Certification”), in the form attached hereto as Exhibit V-1 (in the case of a
Subservicer or any Reporting Subcontractor of the Master Servicer or a
Subservicer) and Exhibit V-2 (in the case of the Trustee or any Reporting
Subcontractor of the Trustee), on which the Certifying Person, the entity
for
which the Certifying Person acts as an officer, and such entity’s officers,
directors and Affiliates (collectively with the Certifying Person,
“Certification Parties”) can reasonably rely. The senior officer in
charge of the servicing function of the Master Servicer shall serve as
the
Certifying Person on behalf of the Trust Fund. Neither the Master
Servicer nor the Depositor will request delivery of a certification under
this
clause unless the Depositor is required under the Exchange Act to file
an annual
report on Form 10-K with respect to the Trust Fund. In the event that
prior to the filing date of the Form 10-K in March of each year, the Trustee
or
the Depositor has actual knowledge of information material to the Xxxxxxxx-Xxxxx
Certification, the Trustee or the Depositor, as the case may be, shall
promptly
notify the Master Servicer and the Depositor. The respective parties
hereto agree to cooperate with all reasonable requests made by any Certifying
Person or Certification Party in connection with such Person’s attempt to
conduct any due diligence that such Person reasonably believes to be appropriate
in order to allow it to deliver any Xxxxxxxx-Xxxxx Certification or portion
thereof with respect to the Trust Fund.
|
|
SECTION
11.06.
|
Form
15 Filing.
|
Prior
to
January 30 of the first year in which the Depositor is able to do so under
applicable law, the Depositor shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange
Act.
147
|
|
SECTION
11.07.
|
Report
on Assessment of Compliance and
Attestation.
|
(a) On
or before March 15 of each calendar year, commencing in 2008:
(1) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and
the
Master Servicer a report (in form and substance reasonably satisfactory
to the
Depositor) regarding the Master Servicer’s or the Trustee’s, as applicable,
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be
signed by an authorized officer of such Person and shall address each of
the
Servicing Criteria specified on a certification substantially in the form
of
Exhibit W hereto delivered to the Depositor concurrently with the execution
of
this Agreement. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same
asset
type backing the Certificates, such report shall include such a statement
to
that effect. The Depositor and the Master Servicer, and each of their
respective officers and directors shall be entitled to rely on upon each
such
servicing criteria assessment.
(2) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and
the
Master Servicer a report of a registered public accounting firm reasonably
acceptable to the Depositor that attests to, and reports on, the assessment
of
compliance made by Master Servicer or the Trustee, as applicable, and delivered
pursuant to the preceding paragraphs. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation that
in the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express
such an
opinion. Such report must be available for general use and not
contain restricted use language. To the extent any of the Servicing
Criteria are not applicable to such Person, with respect to asset-backed
securities transactions taken as a whole involving such Person and that
are
backed by the same asset type backing the Certificates, such report shall
include such a statement to that effect.
(3) The
Master Servicer shall cause each Subservicer and each Reporting Subcontractor
to
deliver to the Depositor an assessment of compliance and accountant’s
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(4) The
Trustee shall cause each Reporting Subcontractor to deliver to the Depositor
and
the Master Servicer an assessment of compliance and accountant’s attestation as
and when provided in paragraphs (a) and (b) of this Section.
(5) The
Master Servicer and the Trustee shall execute (and the Master Servicer
shall
cause each Subservicer to execute, and the Master Servicer and the Trustee
shall
cause each Reporting Subcontractor to execute) a reliance certificate to
enable
the Certification Parties to rely upon each (i) annual compliance statement
provided pursuant to Section 3.16, (ii) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and
(iii) accountant’s report provided pursuant to this Section 11.07 and shall
include a certification that each such annual compliance statement or report
discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants
148
to
render
the certifications provided for in this Section 11.07. In the event
the Master Servicer, any Subservicer, the Trustee or Reporting Subcontractor
is
terminated or resigns during the term of this Agreement, such Person shall
provide a certification to the Certifying Person pursuant to this Section
11.07
with respect to the period of time it was subject to this Agreement or
provided
services with respect to the Trust Fund, the Certificates or the Mortgage
Loans.
(b) In
the event the Master Servicer, any Subservicer, the Trustee or Reporting
Subcontractor is terminated or resigns during the term of this Agreement,
such
Person shall provide documents and information required by this Section
11.07
with respect to the period of time it was subject to this Agreement or
provided
services with respect to the Trust Fund, the Certificates or the Mortgage
Loans.
(c) Each
assessment of compliance provided by a Subservicer pursuant to Section
11.07(a)(3) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit W hereto delivered to
the
Depositor concurrently with the execution of this Agreement or, in the
case of a
Subservicer subsequently appointed as such, on or prior to the date of
such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 11.07(a)(3) or (4) need not address any elements of
the
Servicing Criteria other than those specified by the Master Servicer or
the
Trustee, as applicable, pursuant to Section 11.07(a)(1).
|
|
SECTION
11.08.
|
Use
of Subservicers and
Subcontractors.
|
(a) The
Master Servicer shall cause any Subservicer used by the Master Servicer
(or by
any Subservicer) for the benefit of the Depositor to comply with the provisions
of Section 3.16 and this Article XI to the same extent as if such Subservicer
were the Master Servicer (except with respect to the Master Servicer’s duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person). The Master Servicer shall be responsible for
obtaining from each Subservicer and delivering to the Depositor any servicer
compliance statement required to be delivered by such Subservicer under
Section
3.16, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 11.07 and any certification required to
be
delivered to the Certifying Person under Section 11.05 as and when required
to
be delivered. As a condition to the succession to any Subservicer as
subservicer under this Agreement by any Person (i) into which such Subservicer
may be merged or consolidated, or (ii) which may be appointed as a successor
to
any Subservicer, the Master Servicer shall provide to the Depositor, at
least 15
calendar days prior to the effective date of such succession or appointment,
(x)
written notice to the Depositor of such succession or appointment and (y)
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K.
(b) It
shall not be necessary for the Master Servicer, any Subservicer or the
Trustee
to seek the consent of the Depositor or any other party hereto to the
utilization of any Subcontractor. The Master Servicer or the Trustee,
as applicable, shall promptly upon request provide to the Depositor (or
any
designee of the Depositor, such as the Master Servicer or administrator)
a
written description (in form and substance satisfactory to the Depositor)
of the
role and function of each Subcontractor utilized by such Person (or in
the case
of the Master
149
Servicer,
any Subservicer), specifying (i) the identity of each such Subcontractor,
(ii)
which (if any) of such Subcontractors are “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, and (iii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause
(ii) of
this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Trustee, as applicable, shall
cause
any such Subcontractor used by such Person (or in the case of the Master
Servicer, any Subservicer) for the benefit of the Depositor to comply with
the
provisions of Sections 11.07 and 11.09 of this Agreement to the same extent
as
if such Subcontractor were the Master Servicer (except with respect to
the
Master Servicer’s duties with respect to preparing and filing any Exchange Act
Reports or as the Certifying Person) or the Trustee, as
applicable. The Master Servicer or the Trustee, as applicable, shall
be responsible for obtaining from each Subcontractor and delivering to
the
Depositor and the Master Servicer, any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 11.05 and
Section
11.07, in each case as and when required to be delivered.
|
|
SECTION
11.09.
|
Amendments.
|
In
the
event the parties to this Agreement desire to further clarify or amend
any
provision of this Article XI, this Agreement shall be amended to reflect
the new
agreement between the parties covering matters in this Article XI pursuant
to
Section 10.01, which amendment shall not require any Opinion of Counsel
or
Rating Agency confirmations or the consent of any Certificateholder or
the NIM
Insurer. If, during the period that the Depositor is required to file
Exchange Act Reports with respect to the Trust Fund, the Master Servicer
is no
longer an Affiliate of the Depositor, the Depositor shall assume the obligations
and responsibilities of the Master Servicer in this Article XI with respect
to
the preparation and filing of the Exchange Act Reports and/or acting as
the
Certifying Person, if the Depositor has received indemnity from such successor
Master Servicer satisfactory to the Depositor, and such Master Servicer
has
agreed to provide a Xxxxxxxx-Xxxxx Certification to the Depositor substantially
in the form of Exhibit Y and the certifications referred to in Section
11.07.
|
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
Any
reconciliation of Accounts performed by any party hereto, or any Subservicer
or
Subcontractor shall be prepared no later than 45 calendar days after the
bank
statement cutoff date.
[SIGNATURE
PAGES FOLLOW]
150
IN
WITNESS WHEREOF, the Depositor, the Trustee, the Sellers and the Master
Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above
written.
|
|
CWALT,
INC.,
|
|
|
as Depositor
|
|
|
By: __/s/
Xxxxxxx Schloessmann_____
|
Name:
Xxxxxxx
Xxxxxxxxxxxx
Title:
Managing Director
|
|
THE
BANK OF NEW YORK,
|
|
|
as Trustee
|
|
|
By: /s/ Xxxxxxx Xxxxxxx |
Name:
Xxxxxxx Xxxxxxx
Title:
Assistant
Treasurer
|
|
COUNTRYWIDE
HOME LOANS, INC.,
|
|
|
as
a Seller
|
|
|
By: __/s/
Xxxxxxx Schloessmann_____
|
Name:
Xxxxxxx
Xxxxxxxxxxxx
Title:
Managing Director
|
|
PARK
GRANADA LLC,
|
|
|
as
a Seller
|
|
|
By: __/s/
Xxxxxxx Schloessmann_____
|
Name:
Xxxxxxx
Xxxxxxxxxxxx
Title:
Managing Director
|
|
PARK
MONACO INC.,
|
|
|
as
a Seller
|
|
|
By: __/s/
Xxxxxxx Schloessmann_____
|
Name:
Xxxxxxx
Xxxxxxxxxxxx
Title:
Managing Director
PARK
SIENNA LLC,
as
a Seller
|
|
By: __/s/
Xxxxxxx Schloessmann_____
|
Name:
Xxxxxxx
Xxxxxxxxxxxx
Title:
Managing Director
COUNTRYWIDE
HOME LOANS SERVICING LP,
|
|
as Master Servicer
|
|
|
By: COUNTRYWIDE
GP, INC.
|
|
|
By: __/s/
Xxxxxxx Schloessmann_____
|
Name:
Xxxxxxx
Xxxxxxxxxxxx
Title:
Managing Director
Acknowledged
solely with respect to its obligations under Section 4.01(b):
THE
BANK
OF NEW YORK, in its individual capacity
By:
/s/ Xxxx
Connolly___________
Name: Xxxx
Xxxxxxxx
Title: Vice President
SCHEDULE
I
Mortgage
Loan Schedule
[Delivered
at Closing to Trustee]
S-I-1
SCHEDULE
II-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Countrywide
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule II-A to the Depositor, the Master Servicer and
the
Trustee, as of the Closing Date. Capitalized terms used but not
otherwise defined in this Schedule II-A shall have the meanings ascribed
thereto
in the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”)
relating to the above-referenced Series, among Countrywide, as a seller,
Park
Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC,
as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT,
Inc., as
depositor, and The Bank of New York, as trustee.
(1) Countrywide
is duly organized as a New York corporation and is validly existing and
in good
standing under the laws of the State of New York and is duly authorized
and
qualified to transact any and all business contemplated by the Pooling
and
Servicing Agreement to be conducted by Countrywide in any state in which
a
Mortgaged Property is located or is otherwise not required under applicable
law
to effect such qualification and, in any event, is in compliance with the
doing
business laws of any such state, to the extent necessary to perform any
of its
obligations under the Pooling and Servicing Agreement in accordance with
the
terms thereof.
(2) Countrywide
has the full corporate power and authority to sell each Countrywide Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement and has duly authorized by all necessary
corporate action on the part of Countrywide the execution, delivery and
performance of the Pooling and Servicing Agreement and each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement, assuming the due authorization, execution
and
delivery thereof by the other parties thereto, constitutes a legal, valid
and
binding obligation of Countrywide, enforceable against Countrywide in accordance
with its terms, except that (a) the enforceability thereof may be limited
by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating
to creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor
may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement by Countrywide, the sale of the Countrywide
Mortgage Loans by Countrywide under the Pooling and Servicing Agreement
and each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement and the
fulfillment of or compliance with the terms thereof are in the ordinary
course
of business of Countrywide and will not (A) result in a material breach
of any
term or provision of the charter or by-laws of Countrywide or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or
result in a material default under, the
S-II-A-1
terms
of any other material agreement or instrument to which Countrywide is a
party or
by which it may be bound, or (C) constitute a material violation of any
statute,
order or regulation applicable to Countrywide of any court, regulatory
body,
administrative agency or governmental body having jurisdiction over Countrywide;
and Countrywide is not in breach or violation of any material indenture
or other
material agreement or instrument, or in violation of any statute, order
or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially
impair
Countrywide’s ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
(4) Countrywide
is an approved servicer of conventional mortgage loans for FNMA or FHLMC
and is
a mortgagee approved by the Secretary of Housing and Urban Development
pursuant
to sections 203 and 211 of the National Housing Act.
(5) No
litigation is pending or, to the best of Countrywide’s knowledge, threatened,
against Countrywide that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Countrywide to sell the Countrywide Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by Countrywide
of,
or compliance by Countrywide with, the Pooling and Servicing Agreement
or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Countrywide has obtained
the
same.
(7) Countrywide
intends to treat the transfer of the Countrywide Mortgage Loans to the
Depositor
as a sale of the Countrywide Mortgage Loans for all tax, accounting and
regulatory purposes.
(8) Countrywide
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing
of the
MERS Mortgage Loans in the Trust Fund for as long as such Mortgage Loans
are
registered with MERS.
S-II-A-2
SCHEDULE
II-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Park Granada
Park
Granada LLC (“Park Granada”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this
Schedule
II-B to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-B shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Granada, as a seller, Park Monaco Inc.,
as a
seller, Park Sienna LLC, as a seller, Countrywide, as a seller, Countrywide
Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and
The Bank
of New York, as trustee.
(1) Park
Granada is a limited liability company duly formed and validly existing
and in
good standing under the laws of the State of Delaware.
(2) Park
Granada has the full corporate power and authority to sell each Park Granada
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement and has duly authorized by all
necessary corporate action on the part of Park Granada the execution, delivery
and performance of the Pooling and Servicing Agreement and each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement, assuming the due authorization, execution
and
delivery thereof by the other parties thereto, constitutes a legal, valid
and
binding obligation of Park Granada, enforceable against Park Granada in
accordance with its terms, except that (a) the enforceability thereof may
be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement by Park Granada, the sale of the Park Granada
Mortgage Loans by Park Granada under the Pooling and Servicing Agreement
and
each Supplemental Transfer Agreement, the consummation of any other of
the
transactions contemplated by the Pooling and Servicing Agreement and the
fulfillment of or compliance with the terms thereof are in the ordinary
course
of business of Park Granada and will not (A) result in a material breach
of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Granada or (B) materially conflict with, result
in a
material breach, violation or acceleration of, or result in a material
default
under, the terms of any other material agreement or instrument to which
Park
Granada is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Granada
of any
court,
S-II-B-1
regulatory
body, administrative agency or governmental body having jurisdiction over
Park
Granada; and Park Granada is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of
any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada’s ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
(4) No
litigation is pending or, to the best of Park Granada’s knowledge, threatened,
against Park Granada that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Granada to sell the Park Granada Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by Park Granada
of,
or compliance by Park Granada with, the Pooling and Servicing Agreement
or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Granada has obtained
the
same.
(6) Park
Granada intends to treat the transfer of the Park Granada Mortgage Loans
to the
Depositor as a sale of the Park Granada Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-B-2
SCHEDULE
II-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Park Monaco
Park
Monaco Inc. (“Park Monaco”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this
Schedule
II-C to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-C shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Monaco, as a seller, Countrywide, as
a
seller, Park Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWALT, Inc., as depositor,
and The
Bank of New York, as trustee.
(1) Park
Monaco is a corporation duly formed and validly existing and in good standing
under the laws of the State of Delaware.
(2) Park
Monaco has the full corporate power and authority to sell each Park Monaco
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement and has duly authorized by all
necessary corporate action on the part of Park Monaco the execution, delivery
and performance of the Pooling and Servicing Agreement and each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement, assuming the due authorization, execution
and
delivery thereof by the other parties thereto, constitutes a legal, valid
and
binding obligation of Park Monaco, enforceable against Park Monaco in accordance
with its terms, except that (a) the enforceability thereof may be limited
by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating
to creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor
may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement by Park Monaco, the sale of the Park Monaco
Mortgage Loans by Park Monaco under the Pooling and Servicing Agreement
and each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement and the
fulfillment of or compliance with the terms thereof are in the ordinary
course
of business of Park Monaco and will not (A) result in a material breach
of any
term or provision of the certificate of incorporation or by-laws of Park
Monaco
or (B) materially conflict with, result in a material breach, violation
or
acceleration of, or result in a material default under, the terms of any
other
material agreement or instrument to which Park Monaco is a party or by
which it
may be bound, or (C) constitute a material violation of any statute, order
or
regulation applicable to Park Monaco of any court, regulatory body,
S-II-C-1
administrative
agency or governmental body having jurisdiction over Park Monaco; and Park
Monaco is not in breach or violation of any material indenture or other
material
agreement or instrument, or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body
having
jurisdiction over it which breach or violation may materially impair Park
Monaco’s ability to perform or meet any of its obligations under the Pooling and
Servicing Agreement.
(4) No
litigation is pending or, to the best of Park Monaco’s knowledge, threatened,
against Park Monaco that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Monaco to sell the Park Monaco Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by Park Monaco
of,
or compliance by Park Monaco with, the Pooling and Servicing Agreement
or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Monaco has obtained
the
same.
(6) Park
Monaco intends to treat the transfer of the Park Monaco Mortgage Loans
to the
Depositor as a sale of the Park Monaco Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-C-2
SCHEDULE
II-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Park Sienna
Park
Sienna LLC (“Park Sienna”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this
Schedule
II-D to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-D shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Sienna, as a seller, Countrywide, as
a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller,
Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Park
Sienna is a limited liability company duly formed and validly existing
and in
good standing under the laws of the State of Delaware.
(2) Park
Sienna has the full corporate power and authority to sell each Park Sienna
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement and has duly authorized by all
necessary corporate action on the part of Park Sienna the execution, delivery
and performance of the Pooling and Servicing Agreement and each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement, assuming the due authorization, execution
and
delivery thereof by the other parties thereto, constitutes a legal, valid
and
binding obligation of Park Sienna, enforceable against Park Sienna in accordance
with its terms, except that (a) the enforceability thereof may be limited
by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating
to creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor
may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement by Park Sienna, the sale of the Park Sienna
Mortgage Loans by Park Sienna under the Pooling and Servicing Agreement
and each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement and the
fulfillment of or compliance with the terms thereof are in the ordinary
course
of business of Park Sienna and will not (A) result in a material breach
of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Sienna or (B) materially conflict with, result
in a
material breach, violation or acceleration of, or result in a material
default
under, the terms of any other material agreement or instrument to which
Park
Sienna is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Sienna
of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Sienna; and
S-II-D-1
Park
Sienna is not in breach or violation of any material indenture or other
material
agreement or instrument, or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body
having
jurisdiction over it which breach or violation may materially impair Park
Sienna’s ability to perform or meet any of its obligations under the Pooling and
Servicing Agreement.
(4) No
litigation is pending or, to the best of Park Sienna’s knowledge, threatened,
against Park Sienna that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Sienna to sell the Park Sienna Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by Park Sienna
of,
or compliance by Park Sienna with, the Pooling and Servicing Agreement
or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Sienna has obtained
the
same.
(6) Park
Sienna intends to treat the transfer of the Park Sienna Mortgage Loans
to the
Depositor as a sale of the Park Sienna Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-D-2
SCHEDULE
III-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Countrywide as to all of the Mortgage Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-A to the Depositor, the Master Servicer
and the
Trustee, with respect to all of the Initial Mortgage Loans as of the Closing
Date, and with respect to all of the Supplemental Mortgage Loans as of
the
related Supplemental Transfer Date or if so specified herein, as of the
related
Supplemental Cut-off Date. Capitalized terms used but not otherwise
defined in this Schedule III-A shall have the meanings ascribed thereto
in the
Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”) relating
to the above-referenced Series, among Countrywide, as a seller, Park Granada
LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a
seller,
Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) The
information set forth on Schedule I to the Pooling and Servicing Agreement
with
respect to each Initial Mortgage Loan (other than the information contained
in
clauses (xxi), (xxii) and (xxiii) of the Mortgage Loan Schedule) is true
and
correct in all material respects as of the Closing Date and with respect
to each
Supplemental Mortgage Loan is true and correct in all material respects
as of
the related Supplemental Transfer Date.
(2) As
of the Closing Date, all payments with respect to each Initial Mortgage
Loan due
prior to the Initial Cut-off Date have been made. As of each Supplemental
Transfer Date, all payments with respect to each related Supplemental Mortgage
Loan due prior to the related Supplemental Cut-off Date have been
made.
(3) No
Initial Mortgage Loan had a Loan-to-Value Ratio at origination in excess
of
100.00%.
(4) Each
Mortgage is a valid and enforceable first lien on the Mortgaged Property
subject
only to (a) the lien of non delinquent current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
of such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal
made
in connection with the origination of the related Mortgage Loan, and (c)
other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
such
Mortgage.
(5) [Reserved].
(6) There
is no delinquent tax or assessment lien against any Mortgaged
Property.
S-III-A-1
(7) There
is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of
or
interest on such Mortgage Note.
(8) There
are no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with,
the lien
of such Mortgage, except those which are insured against by the title insurance
policy referred to in item (12) below.
(9) As
of the Closing Date with respect to the Initial Mortgage Loans and as of
the
related Supplemental Transfer Date with respect to the Supplemental Mortgage
Loans, to the best of Countrywide’s knowledge, each Mortgaged Property is free
of material damage and in good repair.
(10) Each
Mortgage Loan at origination complied in all material respects with applicable
local, state and federal laws, including, without limitation, usury, equal
credit opportunity, predatory and abusive lending laws, real estate
settlement procedures, truth-in-lending and disclosure laws, and consummation
of
the transactions contemplated hereby will not involve the violation of
any such
laws.
(11) As
of the Closing Date, with respect to the Initial Mortgage Loans and as
of the
related Supplemental Transfer Date with respect to the Supplemental Mortgage
Loans, neither the Sellers nor any prior holder of any Mortgage has modified
the
Mortgage in any material respect (except that a Mortgage Loan may have
been
modified by a written instrument which has been recorded or submitted for
recordation, if necessary, to protect the interests of the Certificateholders
and the original or a copy of which has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in part;
released
the related Mortgaged Property in whole or in part from the lien of such
Mortgage; or executed any instrument of release, cancellation, modification
or
satisfaction with respect thereto.
(12) A
lender’s policy of title insurance together with a condominium endorsement,
adjustable rate rider, negative amortization endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off
Date
Stated Principal Balance of each such Mortgage Loan or a commitment (binder)
to
issue the same was effective on the date of the origination of each Mortgage
Loan, each such policy is valid and remains in full force and effect, and
each
such policy was issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located and acceptable to
FNMA or
FHLMC and is in a form acceptable to FNMA or FHLMC, which policy insures
Countrywide and successor owners of indebtedness secured by the insured
Mortgage, as to the first priority lien of the Mortgage subject to the
exceptions set forth in paragraph (4) above and against any loss by reason
of
the invalidity or the unenforceability of the lien resulting from the provisions
of the Mortgage providing for adjustment of the mortgage interest rate
and/or
the monthly payment including any negative amortization
thereunder. To the best of Countrywide’s knowledge, no claims have
been made under such mortgage title insurance policy and no prior holder
of the
related Mortgage, including Countrywide, has done, by act or omission,
anything
which would impair the coverage of such mortgage title insurance
policy.
S-III-A-2
(13) With
respect to each Mortgage Loan, all mortgage rate and payment adjustments,
if
any, made on or prior to the Cut-off Date have been made in accordance
with the
terms of the related Mortgage Note or subsequent modifications, if any,
and
applicable law.
(14) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended) by an entity that satisfied
at the
time of origination the requirements of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended.
(15) To
the best of Countrywide’s knowledge, all of the improvements which were included
for the purpose of determining the Appraised Value of the Mortgaged Property
lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property.
(16) To
the best of Countrywide’s knowledge, no improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation. To the best of Countrywide’s knowledge, all inspections,
licenses and certificates required to be made or issued with respect to
all
occupied portions of the Mortgaged Property and, with respect to the use
and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities, unless the lack thereof would not have a material
adverse effect on the value of such Mortgaged Property, and the Mortgaged
Property is lawfully occupied under applicable law.
(17) Each
Mortgage Note and the related Mortgage are genuine, and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance
with its
terms and under applicable law. To the best of Countrywide’s
knowledge, all parties to the Mortgage Note and the Mortgage had legal
capacity
to execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(18) The
proceeds of the Mortgage Loans have been fully disbursed, there is no
requirement for future advances thereunder and any and all requirements
as to
completion of any on-site or off-site improvements and as to disbursements
of
any escrow funds therefor have been complied with. All costs, fees
and expenses incurred in making, or closing or recording the Mortgage Loans
were
paid.
(19) The
related Mortgage contains customary and enforceable provisions which render
the
rights and remedies of the holder thereof adequate for the realization
against
the Mortgaged Property of the benefits of the security, including, (i)
in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(20) With
respect to each Mortgage constituting a deed of trust, a trustee, duly
qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable by the Certificateholders to the trustee under the
deed
of trust, except in connection with a trustee’s sale after default by the
Mortgagor.
S-III-A-3
(21) Each
Mortgage Note and each Mortgage is in substantially one of the forms acceptable
to FNMA or FHLMC, with such riders as have been acceptable to FNMA or FHLMC,
as
the case may be.
(22) There
exist no deficiencies with respect to escrow deposits and payments, if
such are
required, for which customary arrangements for repayment thereof have not
been
made, and no escrow deposits or payments of other charges or payments due
Countrywide have been capitalized under the Mortgage or the related Mortgage
Note.
(23) The
origination, underwriting and collection practices used by Countrywide
with
respect to each Mortgage Loan have been in all respects legal, prudent
and
customary in the mortgage lending and servicing business.
(24) There
is no pledged account or other security other than real estate securing
the
Mortgagor’s obligations.
(25) No
Mortgage Loan has a shared appreciation feature, or other contingent interest
feature.
(26) Each
Mortgage Loan contains a customary “due on sale” clause.
(27) Approximately
51.67% of the Initial Mortgage Loans, by aggregate Stated Principal Balance
of
the Initial Mortgage Loans as of the Initial Cut-off Date, provide for
a
Prepayment Charge.
(28) Each
Mortgage Loan that had a Loan-to-Value Ratio at origination in excess of
80% is
the subject of a Primary Insurance Policy that insures that portion of
the
principal balance equal to a specified percentage times the sum of the
remaining
principal balance of the related Mortgage Loan, the accrued interest thereon
and
the related foreclosure expenses. The specified coverage percentage
for mortgage loans with terms to maturity between 25 and 30 years is 12%
for
Loan-to-Value Ratios between 80.01% and 85.00%, 25% for Loan-to-Value Ratios
between 85.01% and 90.00%, 30% for Loan-to-Value Ratios between 90.01%
and
95.00% and 35% for Loan-to-Value Ratios between 95.01% and 100%. The
specified coverage percentage for mortgage loans with terms to maturity
of up to
20 years ranges from 6% to 12% for Loan-to-Value Ratios between 80.01%
and
85.00%, from 12% to 20% for Loan-to-Value Ratios between 85.01% and 90.00%
and
20% to 25% for Loan-to-Value Ratios between 90.01% and 95.00%. Each
such Primary Insurance Policy is issued by a Qualified Insurer. All
provisions of any such Primary Insurance Policy have been and are being
complied
with, any such policy is in full force and effect, and all premiums due
thereunder have been paid. Any Mortgage subject to any such Primary
Insurance Policy obligates either the Mortgagor or the mortgagee thereunder
to
maintain such insurance and to pay all premiums and charges in connection
therewith, subject, in each case, to the provisions of Section 3.09(b)
of the
Pooling and Servicing Agreement. The Mortgage Rate for each Mortgage
Loan is net of any such insurance premium.
(29) As
of the Closing Date or the related Supplemental Transfer Date, the improvements
upon each Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and
extended coverage
S-III-A-4
and
coverage for such other hazards as are customary in the area where the
Mortgaged
Property is located in an amount which is at least equal to the lesser
of (i)
the maximum insurable value of the improvements securing such Mortgage
Loan or
(ii) the greater of (a) the outstanding principal balance of the Mortgage
Loan
and (b) an amount such that the proceeds of such policy shall be sufficient
to
prevent the Mortgagor and/or the mortgagee from becoming a
co-insurer. If the Mortgaged Property is a condominium unit, it is
included under the coverage afforded by a blanket policy for the condominium
unit. All such individual insurance policies and all flood policies
referred to in item (30) below contain a standard mortgagee clause naming
Countrywide or the original mortgagee, and its successors in interest,
as
mortgagee, and Countrywide has received no notice that any premiums due
and
payable thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at
the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance
at
the Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor.
(30) If
the Mortgaged Property is in an area identified in the Federal Register
by the
Federal Emergency Management Agency as having special flood hazards, a
flood
insurance policy in a form meeting the requirements of the current guidelines
of
the Flood Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing
coverage
not less than the least of (A) the original outstanding principal balance
of the
Mortgage Loan, (B) the minimum amount required to compensate for damage
or loss
on a replacement cost basis, or (C) the maximum amount of insurance that
is
available under the Flood Disaster Protection Act of 1973, as
amended.
(31) To
the best of Countrywide’s knowledge, there is no proceeding occurring, pending
or threatened for the total or partial condemnation of the Mortgaged
Property.
(32) There
is no material monetary default existing under any Mortgage or the related
Mortgage Note and, to the best of Countrywide’s knowledge, there is no material
event which, with the passage of time or with notice and the expiration
of any
grace or cure period, would constitute a default, breach, violation or
event of
acceleration under the Mortgage or the related Mortgage Note; and Countrywide
has not waived any default, breach, violation or event of
acceleration.
(33) Each
Mortgaged Property is improved by a one- to four-family residential dwelling
including condominium units and dwelling units in PUDs, which, to the best
of
Countrywide’s knowledge, does not include cooperatives or mobile homes and does
not constitute other than real property under state law.
(34) Each
Mortgage Loan is being master serviced by the Master Servicer.
(35) Any
future advances made prior to the Cut-off Date have been consolidated with
the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the Mortgage Loan Schedule. The consolidated principal
amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note does not permit or obligate the Master
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
S-III-A-5
(36) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or an escrow of funds has been established in an
amount
sufficient to pay for every such item which remains unpaid and which has
been
assessed, but is not yet due and payable. Except for (A) payments in
the nature of escrow payments, and (B) interest accruing from the date
of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever
is
later, to the day which precedes by one month the Due Date of the first
installment of principal and interest, including without limitation, taxes
and
insurance payments, the Master Servicer has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other than
the
Mortgagor, directly or indirectly, for the payment of any amount required
by the
Mortgage.
(37) Each
Mortgage Loan was underwritten in all material respects in accordance with
the
underwriting guidelines described in the Prospectus Supplement.
(38) Other
than with respect to any Streamlined Documentation Mortgage Loan as to
which the
loan-to-value ratio of the related Original Mortgage Loan was less than
90% at
the time of the origination of such Original Mortgage Loan, prior to the
approval of the Mortgage Loan application, an appraisal of the related
Mortgaged
Property was obtained from a qualified appraiser, duly appointed by the
originator, who had no interest, direct or indirect, in the Mortgaged Property
or in any loan made on the security thereof, and whose compensation is
not
affected by the approval or disapproval of the Mortgage Loan; such appraisal
is
in a form acceptable to FNMA and FHLMC.
(39) None
of the Initial Mortgage Loans is a graduated payment mortgage loan or a
growing
equity mortgage loan, and none of the Initial Mortgage Loans is subject
to a
buydown or similar arrangement.
(40) Any
leasehold estate securing a Mortgage Loan has a term of not less than five
years
in excess of the term of the related Mortgage Loan.
(41) The
Mortgage Loans were selected from among the outstanding adjustable-rate
one- to
four-family mortgage loans in the portfolios of the Sellers at the Closing
Date
as to which the representations and warranties made as to the Mortgage
Loans set
forth in this Schedule III-A can be made. Such selection was not made
in a manner intended to adversely affect the interests of
Certificateholders.
(42) Except
for 5.82% of the Initial Mortgage Loans, by aggregate Stated Principal
Balance
of the Mortgage Loans as of the Initial Cut-off Date, each Mortgage Loan
transferred and assigned to the Trustee on the Closing Date has a payment
date
on or before August 1, 2007.
(43) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Trustee certifying that the original Mortgage Note is a Lost Mortgage Note,
if
such Mortgage Loan is subsequently in default, the enforcement of such
Mortgage
Loan or of the related Mortgage by or on behalf of the Trustee will not
be
materially adversely affected by the
S-III-A-6
absence
of the original Mortgage Note. A “Lost Mortgage Note” is a Mortgage
Note the original of which was permanently lost or destroyed and has not
been
replaced.
(44) The
Mortgage Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governedby the Georgia Fair Lending Act.
(46) None
of the Mortgage Loans are “high cost” loans as defined by applicable predatory
and abusive lending laws.
(47) None
of the Mortgage Loans are covered by the Home Ownership and Equity Protection
Act of 1994 (“HOEPA”).
(48) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.).
(49) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.).
(50) All
of the Mortgage Loans were originated in compliance with all applicable
laws,
including, but not limited to, all applicable anti-predatory and abusive
lending
laws.
(51) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and with
respect to the foregoing, the terms “High Cost Loan” and “Covered Loan” have the
meaning assigned to them in Standard & Poor’s LEVELS® Version 6.0 Glossary
Revised, Appendix E which is attached hereto as Exhibit Q (the “Glossary”) where
(x) a “High Cost Loan” is each loan identified in the column “Category under
applicable anti-predatory lending law” of the table entitled “Standard &
Poor’s High Cost Loan Categorization” in the Glossary as each such loan is
defined in the applicable anti-predatory lending law of the State or
jurisdiction specified in such table and (y) a “Covered Loan” is each loan
identified in the column “Category under applicable anti-predatory lending law”
of the table entitled “Standard & Poor’s Covered Loan Categorization” in the
Glossary as each such loan is defined in the applicable anti-predatory
lending
law of the State or jurisdiction specified in such table.
S-III-A-7
SCHEDULE
III-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-B to the Depositor, the Master Servicer
and the
Trustee, with respect to the Countrywide Mortgage Loans that are Mortgage
Loans
as of the Closing Date, or if so specified herein, as of the Cut-off
Date. Capitalized terms used but not otherwise defined in this
Schedule III-B shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide, as a seller, Park Granada LLC,
as a
seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWALT, Inc., as depositor,
and The
Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Countrywide Mortgage Loan to the Depositor,
Countrywide had good title to, and was the sole owner of, such Countrywide
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE
III-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
Park
Granada LLC (“Park Granada”) hereby makes the representations and warranties set
forth in this Schedule III-C to the Depositor, the Master Servicer and
the
Trustee, with respect to the Park Granada Mortgage Loans that are Mortgage
Loans
as of the Closing Date, or if so specified herein, as of the Cut-off
Date. Capitalized terms used but not otherwise defined in this
Schedule III-C shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Granada, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as
a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT,
Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Granada Mortgage Loan to the Depositor,
Park Granada had good title to, and was the sole owner of, such Park Granada
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-C-1
SCHEDULE
III-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
Park
Monaco Inc. (“Park Monaco”) hereby makes the representations and warranties set
forth in this Schedule III-D to the Depositor, the Master Servicer and
the
Trustee, with respect to the Park Monaco Mortgage Loans that are Mortgage
Loans
as of the Closing Date, or if so specified herein, as of the Cut-off
Date. Capitalized terms used but not otherwise defined in this
Schedule III-D shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Monaco, as a seller, Park Granada LLC, as a seller, Park Sienna LLC, as
a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT,
Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Monaco Mortgage Loan to the Depositor,
Park
Monaco had good title to, and was the sole owner of, such Park Monaco Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE
III-E
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
Park
Sienna LLC (“Park Sienna”) hereby makes the representations and warranties set
forth in this Schedule III-E to the Depositor, the Master Servicer and
the
Trustee, with respect to the Park Sienna Mortgage Loans that are Mortgage
Loans
as of the Closing Date, or if so specified herein, as of the Cut-off
Date. Capitalized terms used but not otherwise defined in this
Schedule III-E shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Sienna, as a seller, Park Monaco Inc., as a seller, Park Granada LLC, as
a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT,
Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Sienna Mortgage Loan to the Depositor,
Park
Sienna had good title to, and was the sole owner of, such Park Sienna Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE
IV
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OH3
Representations
and Warranties of the Master Servicer
Countrywide
Home Loans Servicing LP (“Countrywide Servicing”) hereby makes the
representations and warranties set forth in this Schedule IV to the Depositor,
the Sellers and the Trustee, as of the Closing Date. Capitalized
terms used but not otherwise defined in this Schedule IV shall have the
meanings
ascribed thereto in the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) relating to the above-referenced Series, among Countrywide
Home Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York,
as
trustee.
(1) Countrywide
Servicing is duly organized as a limited partnership and is validly existing
and
in good standing under the laws of the State of Texas and is duly authorized
and
qualified to transact any and all business contemplated by the Pooling
and
Servicing Agreement to be conducted by Countrywide Servicing in any state
in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary
to
perform any of its obligations under the Pooling and Servicing Agreement
in
accordance with the terms thereof.
(2) Countrywide
Servicing has the full partnership power and authority to service each
Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has
duly
authorized by all necessary partnership action on the part of Countrywide
Servicing the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Countrywide Servicing,
enforceable against Countrywide Servicing in accordance with its terms,
except
that (a) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally and (b) the remedy of specific performance and injunctive and
other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide
Servicing, the servicing of the Mortgage Loans by Countrywide Servicing
under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary
course
of business of Countrywide Servicing and will not (A) result in a material
breach of any term or provision of the certificate of limited partnership,
partnership agreement or other organizational document of Countrywide Servicing
or
S-V-1
(B) materially
conflict with, result in a material breach, violation or acceleration of,
or
result in a material default under, the terms of any other material agreement
or
instrument to which Countrywide Servicing is a party or by which it may
be
bound, or (C) constitute a material violation of any statute, order or
regulation applicable to Countrywide Servicing of any court, regulatory
body,
administrative agency or governmental body having jurisdiction over Countrywide
Servicing; and Countrywide Servicing is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation
of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair the ability of Countrywide Servicing to
perform
or meet any of its obligations under the Pooling and Servicing
Agreement.
(4) Countrywide
Servicing is an approved servicer of conventional mortgage loans for FNMA
or
FHLMC and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No
litigation is pending or, to the best of Countrywide Servicing’s knowledge,
threatened, against Countrywide Servicing that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide Servicing to service the Mortgage
Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by Countrywide
Servicing of, or compliance by Countrywide Servicing with, the Pooling
and
Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Countrywide Servicing has obtained the same.
(7) Countrywide
Servicing is a member of MERS in good standing, and will comply in all
material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
S-IV-2
SCHEDULE
V
Principal
Balances Schedule
*[Attached
to Prospectus Supplement, if applicable.]
S-V-1
SCHEDULE
VI
Form
of
Monthly Master Servicer Report
|
LOAN
LEVEL REPORTING SYSTEM
|
||||
|
DATABASE
STRUCTURE
|
||||
|
[MONTH,
YEAR]
|
||||
|
Field Number
|
Field
Name
|
Field
Type
|
Field
Width
|
Dec
|
|
1
|
INVNUM
|
Numeric
|
4
|
|
|
2
|
INVBLK
|
Numeric
|
4
|
|
|
3
|
INACNU
|
Character
|
8
|
|
|
4
|
BEGSCH
|
Numeric
|
15
|
2
|
|
5
|
SCHPRN
|
Numeric
|
13
|
2
|
|
6
|
TADPRN
|
Numeric
|
11
|
2
|
|
7
|
LIQEPB
|
Numeric
|
11
|
2
|
|
8
|
ACTCOD
|
Numeric
|
11
|
|
|
9
|
ACTDAT
|
Numeric
|
4
|
|
|
10
|
INTPMT
|
Numeric
|
8
|
|
|
11
|
PRNPMT
|
Numeric
|
13
|
2
|
|
12
|
ENDSCH
|
Numeric
|
13
|
2
|
|
13
|
SCHNOT
|
Numeric
|
13
|
2
|
|
14
|
SCHPAS
|
Numeric
|
7
|
3
|
|
15
|
PRINPT
|
Numeric
|
7
|
3
|
|
16
|
PRIBAL
|
Numeric
|
11
|
2
|
|
17
|
LPIDTE
|
Numeric
|
13
|
2
|
|
18
|
DELPRN
|
Numeric
|
7
|
|
|
19
|
PPDPRN
|
Numeric
|
11
|
2
|
|
20
|
DELPRN
|
Numeric
|
11
|
2
|
|
21
|
NXTCHG
|
Numeric
|
8
|
|
|
22
|
ARMNOT
|
Numeric
|
7
|
3
|
|
23
|
ARMPAS
|
Numeric
|
7
|
3
|
|
24
|
ARMPMT
|
Numeric
|
11
|
2
|
|
25
|
ZZTYPE
|
Character
|
2
|
|
|
26
|
ISSUID
|
Character
|
1
|
|
|
27
|
KEYNAME
|
Character
|
8
|
|
|
TOTAL
|
240
|
|||
|
Suggested
Format:
|
DBASE
file
Modem
transmission
|
|||
S-VI-1
EXHIBIT
A
[FORM
OF
SENIOR CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
[SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).]
[UNTIL
THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE,
OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE BY THE TRANSFEREE’S ACCEPTANCE OF A CERTIFICATE OF THIS
CLASS AND BY A BENEFICIAL OWNER’S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF
THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR TO A PERSON INVESTING ASSETS
OF,
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT
TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
A-1
Certificate
No.
:
Cut-off Date
:
First
Distribution
Date
:
Initial
Certificate Balance
of
this
Certificate
(“Denomination”)
: $
Initial
Certificate Balance
of
all
Certificates of
this
Class
: $
CUSIP :
Interest
Rate
:
Maturity
Date
:
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sellers, the Master Servicer or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor
the Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ____________ is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate Initial Certificate Balance of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, Countrywide Home
Loans, Inc., as a seller (“CHL”), Park Granada LLC, as a seller (“Park
Granada”), Park Monaco, Inc., as a seller (“Park Monaco”), and Park Sienna LLC,
as a seller (“Park Sienna” and, together with CHL, Park Granada and Park Monaco,
the “Sellers”), Countrywide Home Loans Servicing LP, as master servicer (the
“Master
A-2
Servicer”),
and The Bank of New York, as trustee (the “Trustee”). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
[Until
this certificate has been the subject of an ERISA-Qualifying Underwriting,
no
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, or (ii) in the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), a trustee of any such benefit plan or arrangement or any other
person acting on behalf of any such benefit plan or arrangement, an Opinion
of
Counsel satisfactory to the Trustee to the effect that the purchase and holding
of such Certificate will not result in a non-exempt prohibited transaction
under
Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund. Unless the transferee
delivers the Opinion of Counsel described above, such representation shall
be
deemed to have been made to the Trustee by the Transferee’s acceptance of a
Certificate of this Class and by a beneficial owner’s acceptance of its interest
in a Certificate of this Class. Notwithstanding anything else to the
contrary herein, until such certificate has been the subject of an
ERISA-Qualifying Underwriting, any purported transfer of a Certificate of this
Class to, or to a person investing assets of, an employee benefit plan subject
to ERISA or a plan or arrangement subject to Section 4975 of the Code without
the opinion of counsel satisfactory to the Trustee as described above shall
be
void and of no effect.]
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
A-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By ______________________ |
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
A-4
EXHIBIT
B
[FORM
OF
SUBORDINATED CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60, AND THE PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
B-1
AGREEMENT
REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
B-2
Certificate
No.
:
Cut-off Date
:
First
Distribution
Date
:
Initial
Certificate Balance
of
this
Certificate
(“Denomination”)
: $
Initial
Certificate Balance
of
all
Certificates of
this
Class
: $
CUSIP :
Interest
Rate
:
Maturity
Date
:
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sellers, the Master Servicer or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor
the Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ___________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, Countrywide Home
Loans, Inc., as a seller (“CHL”), Park Granada LLC, as a seller (“Park
Granada”), Park Monaco, Inc., as a seller (“Park Monaco”), and Park Sienna LLC,
as a seller (“Park Sienna” and, together with CHL, Park Granada and Park Monaco,
the “Sellers”), Countrywide Home Loans Servicing LP, as master
B-3
servicer
(the “Master Servicer”), and The Bank of New York, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
[No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial issuance
of Certificates pursuant hereto, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Sellers, the Master
Servicer or the Depositor. The Holder hereof desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.]
[No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and the
transferee is an insurance company, a representation that the transferee is
purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate of this Class to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
B-4
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
B-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By ______________________ |
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
B-6
EXHIBIT
C-1
[FORM
OF
RESIDUAL CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60, AND THE PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
[THIS
CERTIFICATE REPRESENTS THE “TAX MATTERS PERSON RESIDUAL INTEREST” ISSUED UNDER
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE TRANSFERRED
TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE TRANSFEREE OF
THE
DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1
Certificate
No.
:
Cut-off Date
:
First
Distribution
Date
:
Initial
Certificate Balance
of
this
Certificate
(“Denomination”)
: $
Initial
Certificate Balance
of
all
Certificates of
this
Class
: $
CUSIP :
Interest
Rate
:
Maturity
Date
:
Mortgage
Pass-Through Certificates, Series 200____-____
Class
A-R
evidencing
the distributions allocable to the Class A-R Certificates with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage loans (the
“Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sellers, the Master Servicer or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor
the Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ______________ is the registered owner of the Percentage Interest
(obtained by dividing the Denomination of this Certificate by the aggregate
Initial Certificate Balance of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting of the Mortgage Loans deposited by CWALT, Inc. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, Countrywide Home Loans, Inc., as a seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”), and The
Bank of New York, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized
C-2
terms
used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class A-R Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee in
New
York, New York.
No
transfer of a Class A-R Certificate shall be made unless the Trustee shall
have
received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and the
transferee is an insurance company, a representation that the transferee is
purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Class A-R Certificate to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
Each
Holder of this Class A-R Certificate will be deemed to have agreed to be bound
by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in
this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery
to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b)
a
transfer certificate of the transferor, each of such documents to be in the
form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class A-R Certificate must agree not to transfer an Ownership
Interest in this Class A-R Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in
C-3
this
Class A-R Certificate in violation of such restrictions will be absolutely
null
and void and will vest no rights in the purported transferee.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
C-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By ______________________ |
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-5
EXHIBIT
C-2
[FORM
OF
CLASS C-P CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CLASS C-P CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS C-P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE
WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60, AND THE PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
C-2-1
Certificate
No. :
Cut-off
Date :
First
Distribution
Date :
Initial
Notional Amount
of
this
Certificate : $
Initial
Notional Amount
of
all
Certificates of
this
Class : $
Initial
Certificate Balance
of
this
Certificate
(“Denomination”) : $
Initial
Certificate Balance
of
all
Certificates of
this
Class : $
CUSIP :
ISIN :
Interest
Rate :
Maturity
Date :
CWALT,
INC.
Alternative
Loan Trust 200____-___
Mortgage
Pass-Through Certificates, Series 200____-____
Class
C-P
evidencing
a percentage interest in the distributions allocable to the Class C-P
Certificates with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the “Mortgage Loans”) secured by first liens on
one- to four-family residential properties
CWALT,
Inc., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
This
certifies that __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Initial
Notional Amount of this
C-2-2
Certificate
by the aggregate Initial Notional Amount of all Certificates of the Class to
which this Certificate belongs) in certain monthly distributions with respect
to
a Trust Fund consisting primarily of the Mortgage Loans deposited by CWALT,
Inc.
(the “Depositor”). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, Countrywide Home Loans, Inc., as a seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”), and The
Bank of New York, as trustee (the “Trustee”). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
No
transfer of a Class C-P Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee in writing the facts surrounding the
transfer. In the event that such a transfer is to be made within two
years from the date of the initial issuance of Certificates, there shall also
be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Regulations promulgated pursuant to the Act) to the Trustee an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the Act
and
such state securities laws, which Opinion of Counsel shall not be obtained
at
the expense of the Trustee, the Master Servicer or the Depositor. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trustee, the Certificate and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No
transfer of a Class C-P Certificate shall be made unless the Trustee shall
have
received either (i) a representation letter from the transferee of a Class
C-P
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
Class C-P Certificate has been the subject of an ERISA-Qualifying Underwriting
and the transferee is an insurance company, a representation that the transferee
is purchasing such Class C-P Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Class C-P Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60, or (iii) in the case of a Class
C-P Certificate presented for registration in the name of an employee benefit
plan subject to ERISA or a plan or arrangement subject to Section 4975 of the
Code (or comparable provisions of any subsequent enactments), a trustee of
any
such benefit plan or arrangement or any other person acting on behalf of any
such benefit plan or arrangement, an Opinion of Counsel satisfactory to the
Trustee to the effect that
C-2-3
the
purchase and holding of such Certificate will not result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and will
not
subject the Trustee or the Master Servicer to any obligation in addition to
those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Master Servicer or the Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Class C-P Certificate to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
This
Class C-P Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated as
a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class C-P Certificate will be deemed to have agreed to be bound
by the transfer restrictions set forth in the Agreement and all other terms
and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
* * *
C-2-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By ______________________ |
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-2-5
EXHIBIT
D
[FORM
OF
NOTIONAL AMOUNT CERTIFICATE]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTION
IN
RESPECT OF PRINCIPAL.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
[UNTIL
THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE,
OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE BY THE TRANSFEREE’S ACCEPTANCE OF A CERTIFICATE OF THIS
CLASS AND BY A BENEFICIAL OWNER’S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF
THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR A PERSON INVESTING ASSETS OF,
AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
Certificate
No.
:
Cut-off Date
:
First
Distribution
Date
:
Initial
Certificate Balance
of
this
Certificate
(“Denomination”)
: $
Initial
Certificate Balance
of
all
Certificates of
this
Class
: $
CUSIP :
Interest
Rate
: Interest
Only
Maturity
Date
:
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
The
Notional Amount of this certificate at any time, may be less than the Notional
Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ___________ is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate Initial Notional Amount of all Certificates of
the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting primarily of the Mortgage Loans deposited
by
CWALT, Inc. (the “Depositor”). The Trust Fund was created pursuant to
a Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the “Agreement”) among the Depositor, Countrywide Home Loans, Inc., as a seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”), and The
Bank of New York, as trustee (the “Trustee”). To the extent not
defined
D-2
herein,
the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
[Until
this certificate has been the subject of an ERISA-Qualifying Underwriting,
no
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, or (ii) in the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), a trustee of any such benefit plan or arrangement or any other
person acting on behalf of any such benefit plan or arrangement, an Opinion
of
Counsel satisfactory to the Trustee to the effect that the purchase and holding
of such Certificate will not result in a non-exempt prohibited transaction
under
Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund. When the transferee
delivers the Opinion of Counsel described above, such representation shall
be
deemed to have been made to the Trustee by the Transferee’s acceptance of a
Certificate of this Class and by a beneficial owner’s acceptance of its interest
in a Certificate of this Class. Notwithstanding anything else to the
contrary herein, until such certificate has been the subject of an
ERISA-Qualifying Underwriting, any purported transfer of a Certificate of this
Class to, or a person investing assets of, an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code without
the
opinion of counsel satisfactory to the Trustee as described above shall be
void
and of no effect.]
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
D-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By ______________________ |
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
D-4
EXHIBIT
E
[FORM
OF]
REVERSE OF CERTIFICATES
CWALT,
INC.
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
CWALT, Inc. Mortgage Pass-Through Certificates, of the Series specified on
the
face hereof (herein collectively called the “Certificates”), and representing a
beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such day is not a Business Day, the Business Day immediately
following (the “Distribution Date”), commencing on the first Distribution Date
specified on the face hereof, to the Person in whose name this Certificate
is
registered at the close of business on the applicable Record Date in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of Certificates of the
Class to which this Certificate belongs on such Distribution Date pursuant
to
the Agreement. The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the related
Record Date and such Certificateholder shall satisfy the conditions to receive
such form of payment set forth in the Agreement, or, if not, by check mailed
by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will
be made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified
in
the notice to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of
E-1
this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the Corporate Trust Office or the office or agency maintained by the Trustee
in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
Fund will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Sellers and the Trustee and any agent of
the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and neither the Depositor,
the
Trustee, nor any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date on which the Pool Stated Principal Balance is less than or
equal to 10% of the Cut-off Date Pool Principal Balance, the Master Servicer
will have the option, subject to the limitations set forth in the Agreement,
to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all
property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the
Agreement will terminate upon the later of the maturity or other liquidation
(or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund or the disposition of all property in respect thereof and the
distribution to Certificateholders of all amounts required to be distributed
pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
E-2
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________
___________________________________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee
on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the
following
address:
_______________________________________________________________________
Dated:
________________________________
Signature
by or on behalf of
assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to,
______________________________________________________________, for the
account of
______________________________________________________________, account
number _________________________, or, if mailed by
check, to ___________. Applicable statements should be mailed
to
______________________________________________________________________________________________,
___________________________________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________________
This
information is provided by _____________________________________________,
the assignee named above, or _______________________________________, as
its agent.
E-3
| STATE OF | ) |
| ) ss.: | |
| COUNTY OF | ) |
On
the
_____day of ___________________, 20__ before me, a notary public in and for
said
State, personally appeared _____________________________________, known to
me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
|
Notary
Public
|
[Notarial
Seal]
E-4
EXHIBIT
F-1
[FORM
OF]
INITIAL CERTIFICATION OF TRUSTEE
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________
___________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”),
as a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a
Seller, Park Sienna LLC, as
a Seller, Countrywide Home Loans Servicing LP, as Master Servicer,
and The
Bank
of New York, as Trustee, Mortgage Pass-Through Certificates, Series 200_-_ |
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that, as to each Initial Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Initial Mortgage Loan paid in full or listed
on
the attached schedule) it has received:
(i) (a)
the original Mortgage Note endorsed in the following form: “Pay to
the order of __________, without recourse” or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from Countrywide stating that the original
Mortgage Note was lost or destroyed; and
(ii) a
duly executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Initial Mortgage Loans identified on the Mortgage Loan Schedule, or (ii)
the
collectability, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
F-1-1
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: | ||
F-1-2
[FORM
OF]
INITIAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________
___________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc., as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as
a Seller,
Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, and The Bank of New
York, as
Trustee,
Mortgage
Pass-Through Certificates, Series 20__-__ and the Supplemental
Transfer
Agreement dated
as of [month] ____, 200_ among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc., as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as
a Seller,
Park Sienna LLC, as a Seller,
and
The Bank of New York, as Trustee
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) and the Supplemental Transfer
Agreement, dated as of [month] ____, 200_, the undersigned, as Trustee, hereby
certifies that, as to each Supplemental Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Supplemental Mortgage Loan paid in full or listed
on the attached schedule) it has received:
(i) (a)
the original Mortgage Note endorsed in the following form: “Pay to
the order of __________, without recourse” or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a
duly executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments).
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.
F-2-1
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Supplemental Mortgage Loans identified on the Mortgage Loan
Schedule, or (ii) the collectability, insurability, effectiveness or suitability
of any such Supplemental Mortgage Loan.
F-2-2
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: | ||
F-2-3
EXHIBIT
G-1
[FORM
OF]
DELAY DELIVERY CERTIFICATION
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_____________________
_____________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”),
as a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a
Seller, Park Sienna LLC, as
a Seller, Countrywide Home Loans Servicing LP, as Master Servicer,
and The
Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series
200_-_
|
Gentlemen:
Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto (the “Schedule A”),
delivered by the undersigned, as Trustee, on the Closing Date in accordance
with
Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”). The undersigned hereby certifies
that, as to each Delay Delivery Initial Mortgage Loan listed on Schedule A
attached hereto (other than any Initial Mortgage Loan paid in full or listed
on
Schedule B attached hereto) it has received:
|
|
(i)
|
the
original Mortgage Note, endorsed by Countrywide or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to Countrywide, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
Countrywide, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage
Note;
|
|
|
(ii)
|
in
the case of each Initial Mortgage Loan that is not a MERS Mortgage
Loan,
the original recorded Mortgage, [and in the case of each Initial
Mortgage
Loan that is a MERS Mortgage Loan, the original Mortgage, noting
thereon
the presence of the MIN of the Initial Mortgage Loan and language
indicating that the Initial Mortgage Loan is a MOM Loan if the Initial
Mortgage Loan is a MOM Loan,
|
G-1-1
|
|
with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been
recorded];
|
|
|
(iii)
|
in
the case of each Initial Mortgage Loan that is not a MERS Mortgage
Loan, a
duly executed assignment of the Mortgage to “The Bank of New York, as
trustee under the Pooling and Servicing Agreement dated as of [month]
1,
2004, without recourse”, or, in the case of each Initial Mortgage Loan
with respect to property located in the State of California that
is not a
MERS Mortgage Loan, a duly executed assignment of the Mortgage
in blank
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to
the assignee thereof, under the Mortgage to which such assignment
relates);
|
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the
presence of
a MIN in the case of each MERS Mortgage
Loan)];
|
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing
Date.
|
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
Countrywide cannot deliver the original recorded Mortgage or all interim
recorded assignments of the Mortgage satisfying the requirements of clause
(ii),
(iii) or (iv), as applicable, the Trustee has received, in lieu thereof,
a true
and complete copy of such Mortgage and/or such assignment or assignments
of the
Mortgage, as applicable, each certified by Countrywide, the applicable title
company, escrow agent or attorney, or the originator of such Initial Mortgage
Loan, as the case may be, to be a true and complete copy of the original
Mortgage or assignment of Mortgage submitted for recording.
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Initial Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi), (viii),
(xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in Article I of
the Pooling and Servicing Agreement accurately reflects information set forth
in
the Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations
as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage
G-1-2
File
of
any of the Initial Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any
such
Mortgage Loan.
G-1-3
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: _____________________ | ||
| Name: | ||
| Title: |
G-1-4
EXHIBIT G-2
[FORM
OF]
DELAY DELIVERY CERTIFICATION
(SUPPLEMENTAL
MORTGAGE LOANS)
[date]
[Master
Servicer]
[Countrywide]
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc., as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as
a Seller,
Park Sienna LLC, as a Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, and The
Bank of
New York, as Trustee,
Mortgage Pass-Through Certificates, Series 20__-__ and the Supplemental
Transfer Agreement
dated as of [month] ____, 200_ among CWALT, Inc., as Depositor,
Countrywide Home Loans,
Inc., as a Seller, Park Granada LLC, as a Seller, Park Monaco,
Inc., as a
Seller, Park Sienna LLC, as
a Seller, and The Bank of New York, as
Trustee
|
Gentlemen:
Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto (the “Schedule A”),
delivered by the undersigned, as Trustee, on [month] __, 200_ (such date being
the related “Supplemental Transfer Date” in accordance with Section 2.02 of the
above-captioned Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”). The undersigned hereby certifies that, as to each Delay
Delivery Supplemental Mortgage Loan listed on Schedule A attached hereto (other
than any Supplemental Mortgage Loan paid in full or listed on Schedule B
attached hereto) it has received:
|
|
(i)
|
the
original Mortgage Note, endorsed by the Seller or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
the
Seller, stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage
Note;
|
|
|
(ii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS Mortgage
Loan, the original recorded Mortgage, [and in the case of each
Supplemental Mortgage Loan that is a MERS Mortgage Loan, the original
Mortgage, noting thereon the presence of the MIN of the Supplemental
Mortgage Loan and
|
G-2-1
|
|
language
indicating that the Supplemental Mortgage Loan is a MOM Loan if the
Supplemental Mortgage Loan is a MOM Loan, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been
recorded];
|
|
|
(iii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage
Loan, a duly executed assignment of the Mortgage to “The Bank of New York,
as trustee under the Pooling and Servicing Agreement dated as of
[month]
1, 2004, without recourse”, or, in the case of each Supplemental Mortgage
Loan with respect to property located in the State of California
that is
not a MERS Mortgage Loan, a duly executed assignment of the Mortgage
in
blank (each such assignment, when duly and validly completed, to
be in
recordable form and sufficient to effect the assignment of and
transfer to
the assignee thereof, under the Mortgage to which such assignment
relates);
|
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the
presence of
a MIN in the case of each MERS Mortgage Loan)];
|
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing Date.
|
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Supplemental Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi), (viii),
(xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in Section 1.01
of the Pooling and Servicing Agreement accurately reflects information set
forth
in the Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and
G-2-2
Servicing
Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in each Mortgage File of any of the Supplemental Mortgage
Loans identified on the [Mortgage Loan Schedule][Loan Number and Borrower
Identification Mortgage Loan Schedule] or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
G-2-3
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: |
G-2-4
EXHIBIT
H-1
[FORM
OF]
FINAL CERTIFICATION OF TRUSTEE
(INITIAL
MORTGAGE LOANS)
[date]
[Master
Servicer]
[Countrywide]
___________________
___________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”),
as a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a
Seller, Park Sienna LLC,
as a Seller, Countrywide Home Loans Servicing LP, as Master Servicer,
and
The Bank of New York,
as Trustee, Mortgage Pass-Through Certificates, Series
200_-_
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Initial Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Initial Mortgage Loan paid in full or listed
on
the attached Document Exception Report) it has received:
|
|
(i)
|
the
original Mortgage Note, endorsed by Countrywide or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the
originator
to Countrywide, or, if the original Mortgage Note has been lost
or
destroyed and not replaced, an original lost note affidavit from
Countrywide, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage
Note;
|
|
|
(ii)
|
in
the case of each Initial Mortgage Loan that is not a MERS Mortgage
Loan,
the original recorded Mortgage, [and in the case of each Initial
Mortgage
Loan that is a MERS Mortgage Loan, the original Mortgage, noting
thereon
the presence of the MIN of the Mortgage Loan and language indicating
that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan,
with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage
has been
recorded];
|
H-1-1
|
|
(iii)
|
in
the case of each Initial Mortgage Loan that is not a MERS Mortgage
Loan, a
duly executed assignment of the Mortgage to “The Bank of New York, as
trustee under the Pooling and Servicing Agreement dated as of
[month] 1,
2004, without recourse”, or, in the case of each Initial Mortgage Loan
with respect to property located in the State of California that
is not a
MERS Mortgage Loan, a duly executed assignment of the Mortgage
in blank
(each such assignment, when duly and validly completed, to be
in
recordable form and sufficient to effect the assignment of and
transfer to
the assignee thereof, under the Mortgage to which such assignment
relates);
|
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the
presence of
a MIN in the case of each Initial Mortgage Loan that is a MERS
Mortgage
Loan)];
|
|
|
(v)
|
the
original or copies of each assumption, modification, written
assurance or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event
such
original title policy has not been received from the insurer,
any one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the
title
company, with the original policy of title insurance to be delivered
within one year of the Closing
Date.
|
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Initial Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi), (viii),
(xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in Article I of
the Pooling and Servicing Agreement accurately reflects information set forth
in
the Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations
as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
H-1-2
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: |
X-0-0
XXXXXXX
X-0
[FORM
OF]
FINAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________
___________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc.,
as a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a
Seller, Park Sienna LLC, as
a Seller, Countrywide Home Loans Servicing LP, as Master Servicer,
and The
Bank of New York,
as Trustee, Mortgage Pass-Through Certificates, Series 20__-__
and the
Supplemental Transfer
Agreement dated as of [month] ____, 200_ among CWALT, Inc., as
Depositor,
Countrywide
Home Loans, Inc., as a Seller, Park Granada LLC, as a Seller, Park
Monaco,
Inc., as
a Seller, Park Sienna LLC, as a Seller, and The Bank of New York,
as
Trustee
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Supplemental Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid in full
or listed on the attached Document Exception Report) it has
received:
|
|
(i)
|
the
original Mortgage Note, endorsed by the Seller or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
the
Seller, stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage
Note;
|
|
|
(ii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS Mortgage
Loan, the original recorded Mortgage, [and in the case of each
Supplemental Mortgage Loan that is a MERS Mortgage Loan, the original
Mortgage, noting
|
H-2-1
|
|
thereon
the presence of the MIN of the Mortgage Loan and language indicating
that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan,
with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been
recorded];
|
|
|
(iii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage
Loan, a duly executed assignment of the Mortgage to “The Bank of New York,
as trustee under the Pooling and Servicing Agreement dated as of
[month]
1, 2004, without recourse”, or, in the case of each Supplemental Mortgage
Loan with respect to property located in the State of California
that is
not a MERS Mortgage Loan, a duly executed assignment of the Mortgage
in
blank (each such assignment, when duly and validly completed, to
be in
recordable form and sufficient to effect the assignment of and
transfer to
the assignee thereof, under the Mortgage to which such assignment
relates);
|
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the
presence of
a MIN in the case of each Supplemental Mortgage Loan that is a
MERS
Mortgage Loan)];
|
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing Date.
|
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Supplemental Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi), (viii),
(xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in Section 1.01
of the Pooling and Servicing Agreement accurately reflects information set
forth
in the Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and
H-2-2
Servicing
Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in each Mortgage File of any of the Supplemental Mortgage
Loans identified on the [Mortgage Loan Schedule][Loan Number and Borrower
Identification Mortgage Loan Schedule] or (ii) the collectibility, insurability,
effectiveness or suitability of any such Supplemental Mortgage
Loan.
H-2-3
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: |
H-2-4
EXHIBIT
I
[FORM
OF]
TRANSFER AFFIDAVIT
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
| STATE OF | ) |
| ) ss.: | |
| COUNTY OF | ) |
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of _______________, the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the “Certificate”) issued
pursuant to the Pooling and Servicing Agreement, dated as of _________ __,
2___
(the “Agreement”), by and among CWALT, Inc., as depositor (the “Depositor”),
Countrywide Home Loans, Inc. (the “Company”), as a Seller, Park Granada LLC, as
a Seller, Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller (and
together with the Company, Park Granada and Park Monaco, the “Sellers”),
Countrywide Home Loans Servicing LP, as Master Servicer and The Bank of New
York, as Trustee. Capitalized terms used, but not defined herein or
in Exhibit 1 hereto, shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or to section 4975 of the Internal Revenue Code of 1986, nor is it acting on
behalf of or with plan assets of any such plan. The Transferee is, as of the
date hereof, and will be, as of the date of the Transfer, a Permitted
Transferee. The Transferee will endeavor to remain a Permitted
Transferee for so long as it retains its Ownership Interest in the
Certificate. The Transferee is acquiring its Ownership Interest in
the Certificate for its own account.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does not
have actual knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an 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
I-1
regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
(attached hereto as Exhibit 2 and incorporated herein by reference) and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c) of the Agreement and the restrictions noted
on
the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render
the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection
with any such Transfer by the Transferee, the Transferee agrees to deliver
to
the Trustee a certificate substantially in the form set forth as Exhibit J-1
to
the Agreement (a “Transferor Certificate”) to the effect that such Transferee
has no actual knowledge that the Person to which the Transfer is to be made
is
not a Permitted Transferee.
7. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the Class A R
Certificates.
8. The
Transferee’s taxpayer identification number is ______________.
9. The
Transferee is a U.S. Person as defined in Code section 7701(a)(30) and, unless
the Transferor (or any subsequent transferor) expressly waives such requirement,
will not cause income from the Certificate to be attributable to a foreign
permanent establishment or fixed base (within the meaning of an applicable
income tax treaty) of the Transferee or another U.S. taxpayer.
10. The
Transferee is aware that the Class A R Certificates may be “noneconomic residual
interests” within the meaning of Treasury Regulation Section 1.860E-1(c) and
that the transferor of a noneconomic residual interest will remain liable for
any taxes due with respect to the income on such residual interest, unless
no
significant purpose of the transfer was to impede the assessment or collection
of tax. In addition, as the Holder of a noneconomic residual
interest, the Transferee may incur tax liabilities in excess of any cash flows
generated by the interest and the Transferee hereby represents that it intends
to pay taxes associated with holding the residual interest as they become
due.
11. The
Transferee has provided financial statements or other financial information
requested by the Transferor in connection with the transfer of the Certificate
to permit the Transferor to assess the financial capability of the Transferee
to
pay such taxes. The
I-2
Transferee
historically has paid its debts as they have come due and intends to pay its
debts as they come due in the future.
12. Unless
the Transferor (or any subsequent transferor) expressly waives such requirement,
the Transferee (and any subsequent transferee) certifies (or will certify),
respectively, that the transfer satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula
Test” imposed by Treasury Regulation § 1.860E-1(c)(7).
* * *
I-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf by its duly authorized officer, this_____ day of ___________,
2___.
| ______________________________ | ||
| PRINT NAME OF TRANSFEREE | ||
| By: | ||
| Name: | ||
| Title: |
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named
, known or proved to me to be the same person who executed the foregoing
instrument and to be the
of the Transferee, and acknowledged that he executed the same as his free
act
and deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this day of
,
20 .
| NOTARY PUBLIC | ||
| My Commission expires the | ||
| ____ day of ___________,20__ |
I-4
WAIVER
OF
REQUIREMENT THAT TRANSFEREE CERTIFIES TRANSFER OF CERTIFICATE SATISFIES CERTAIN
REGULATORY “SAFE HARBORS”
The
Transferor hereby waives the requirement that the Transferee certify that the
transfer of the Certificate satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula Test” imposed by
Treasury Regulation § 1.860E-1(c)(7).
| CWALT, INC. | ||
| By: ________________________________ | ||
| Name: | ||
| Title: | ||
I-5
EXHIBIT
1
to
EXHIBIT
I
Certain
Definitions
“Asset
Test”: A transfer satisfies the Asset Test if: (i) At the time of the transfer,
and at the close of each of the transferee's two fiscal years preceding the
transferee's fiscal year of transfer, the transferee's gross assets for
financial reporting purposes exceed $100 million and its net assets for
financial reporting purposes exceed $10 million. The gross assets and net assets
of a transferee do not include any obligation of any “related person” or any
other asset if a principal purpose for holding or acquiring the other asset
is
to permit the transferee to satisfy such monetary conditions; (ii) The
transferee must be an “eligible corporation” and must agree in writing that any
subsequent transfer of the interest will be to another eligible corporation
in a
transaction that satisfies paragraphs 9 through 11 of this Transfer Affidavit
and the Asset Test. A transfer fails to meet the Asset Test if the transferor
knows, or has reason to know, that the transferee will not honor the
restrictions on subsequent transfers of the Certificate; and (iii) A reasonable
person would not conclude, based on the facts and circumstances known to the
transferor on or before the date of the transfer, that the taxes associated
with
the Certificate will not be paid. The consideration given to the transferee
to
acquire the Certificate is only one factor to be considered, but the transferor
will be deemed to know that the transferee cannot or will not pay if the amount
of consideration is so low compared to the liabilities assumed that a reasonable
person would conclude that the taxes associated with holding the Certificate
will not be paid. For purposes of applying the Asset Test, (i) an
“eligible corporation” means any domestic C corporation (as defined in section
1361(a)(2) of the Code) other than (A) a corporation which is exempt from,
or is
not subject to, tax under section 11 of the Code, (B) an entity described in
section 851(a) or 856(a) of the Code, (C) A REMIC, or (D) an organization to
which part I of subchapter T of chapter 1 of subtitle A of the Code applies;
(ii) a “related person” is any person that (A) bears a relationship to the
transferee enumerated in section 267(b) or 707(b)(1) of the Code, using “20
percent” instead of “50 percent” where it appears under the provisions, or (B)
is under common control (within the meaning of section 52(a) and (b)) with
the
transferee.
“Formula
Test”: A transfer satisfies the formula test if the present value of the
anticipated tax liabilities associated with holding the Certificate does not
exceed the sum of (i) the present value of any consideration given to the
transferee to acquire the Certificate; (ii) the present value of the expected
future distributions on the Certificate; and (iii) the present value of the
anticipated tax savings associated with holding the Certificate as the issuing
REMIC generates losses. For purposes of applying the Formula Test:
(i) The transferee is assumed to pay tax at a rate equal to the highest rate
of
tax specified in section 11(b)(1) of the Code. If the transferee has been
subject to the alternative minimum tax under section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate, then the tax rate specified in
section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in section 11(b)(1) of the Code; (ii) The transfer must satisfy
paragraph 9 of the Transfer Affidavit; and (iii) Present values are computed
using a discount rate equal to the Federal short-term rate prescribed by section
1274(d) of the Code for the month of the transfer and the compounding period
used by the taxpayer.
I-6
“Ownership
Interest”: As to any Certificate, any ownership interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or
beneficial.
“Permitted
Transferee”: Any person other than (i) the United States, any State
or political subdivision thereof, or any agency or instrumentality of any of
the
foregoing, (ii) a foreign government, International Organization or any agency
or instrumentality of either of the foregoing, (iii) an organization (except
certain farmers’ cooperatives described in section 521 of the Code) that is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of
a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration
of
the trust and one or more United States persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon
an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A
R
Certificate to such Person may cause any REMIC formed under the Agreement to
fail to qualify as a REMIC at any time that any Certificates are
Outstanding. The terms “United States,” “State” and “International
Organization” shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with
the exception of the Federal Home Loan Mortgage Corporation, a majority of
its
board of directors is not selected by such government unit.
“Person”: Any
individual, corporation, limited liability company, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Transfer”: Any
direct or indirect transfer or sale of any Ownership Interest in a Certificate,
including the acquisition of a Certificate by the Depositor.
“Transferee”: Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
I-7
EXHIBIT
2
to
EXHIBIT
I
Section
5.02(c) of the Agreement
(c) Each
Person who has or who acquires any Ownership Interest in a Class A R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Class A R Certificate are expressly
subject to the following provisions:
(1) Each
Person holding or acquiring any Ownership Interest in a Class A R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(2) Except
in connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Class A-R Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Class A R Certificate may be registered on the
Closing Date or thereafter transferred, and the Trustee shall not register
the
Transfer of any Class A R Certificate unless, the Trustee shall have been
furnished with an affidavit (a “Transfer Affidavit”) of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(3) Each
Person holding or acquiring any Ownership Interest in a Class A R Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Class A R
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Class A R Certificate and (C) not to Transfer its Ownership Interest in a
Class A R Certificate, or to cause the Transfer of an Ownership Interest in
a
Class A R Certificate to any other Person, if it has actual knowledge that
such
Person is not a Permitted Transferee.
(4) Any
attempted or purported Transfer of any Ownership Interest in a Class A R
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Class A R Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights
as
Holder thereof retroactive to the date of registration of Transfer of such
Class
A R Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Class A R Certificate that is
in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the Transfer was registered after receipt of the related Transfer
Affidavit and Transferor Certificate. The Trustee shall be entitled
but not obligated to recover from any Holder of a Class A R Certificate that
was
in fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all payments
made on such Class A R Certificate at and after
I-8
either
such time. Any such payments so recovered by the Trustee shall be
paid and delivered by the Trustee to the last preceding Permitted Transferee
of
such Certificate.
(5) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Class A R Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Class A R Certificate set forth in this section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Class A R Certificate may be deleted) with respect to Transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trustee, the Sellers or the Master Servicer, to the
effect that the elimination of such restrictions will not cause any constituent
REMIC of any REMIC formed hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax
on
the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any ownership Interest in a Class A R Certificate hereby
consents to any amendment of this Agreement that, based on an Opinion of Counsel
furnished to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class A R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class
A R
Certificate that is held by a Person that is not a Permitted Transferee to
a
Holder that is a Permitted Transferee.
I-9
EXHIBIT
J-1
[FORM
OF]
TRANSFEROR CERTIFICATE
(RESIDUAL)
| _____________________ | ||
| Date |
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that to
the
extent we are disposing of a Class A-R Certificate, we have no knowledge the
Transferee is not a Permitted Transferee.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferor | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
J-1-1
EXHIBIT
J-2
[FORM
OF]
TRANSFEROR CERTIFICATE
(PRIVATE)
| _____________________ | ||
| Date |
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, (b)
we
have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the
Act.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferor | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
J-2-1
EXHIBIT
K
[FORM
OF]
INVESTMENT LETTER (NON-RULE 144A)
| _____________________ | ||
| Date |
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an “accredited investor,”
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(d)
either (i) we are not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code of
1986, as amended, nor are we acting on behalf of or investing the assets of
any
such benefit plan or arrangement to effect such acquisition or (ii) if the
Certificates have been the subject of an ERISA-Qualifying Underwriting and
we
are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we are acquiring
the Certificates for investment for our own account and not with a view to
any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or
K-1
otherwise
approached or negotiated with any person with respect thereto, or taken any
other action which would result in a violation of Section 5 of the Act, and
(g)
we will not sell, transfer or otherwise dispose of any Certificates unless
(1)
such sale, transfer or other disposition is made pursuant to an effective
registration statement under the Act or is exempt from such registration
requirements, and if requested, we will at our expense provide an opinion of
counsel satisfactory to the addressees of this Certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from the
Act,
(2) the purchaser or transferee of such Certificate has executed and delivered
to you a certificate to substantially the same effect as this certificate,
and
(3) the purchaser or transferee has otherwise complied with any conditions
for
transfer set forth in the Pooling and Servicing Agreement.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferee | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
K-2
EXHIBIT
L-1
[FORM
OF]
RULE 144A LETTER
| _____________________ | ||
| Date |
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) either (i) we are not an employee benefit plan that is subject
to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of or investing the assets
of any such benefit plan or arrangement to effect such acquisition or (ii)
if
the Certificates have been the subject of an ERISA-Qualifying Underwriting
and
we are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or 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
L-1-1
other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to
us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another exemption
from registration under the Securities Act.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferee | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
L-1-2
ANNEX
1 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis either at least $100,000 in securities or, if Buyer is
a
dealer, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities (except for the excluded securities referred to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
|
|
___
|
Corporation,
etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described
in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
|
|
|
___
|
Bank. The
Buyer (a) is a national bank or banking institution organized under
the
laws of any State, territory or the District of Columbia, the business
of
which is substantially confined to banking and is supervised by the
State
or territorial banking commission or similar official or is a foreign
bank
or equivalent institution, and (b) has an audited net worth of at
least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached
hereto.
|
|
|
___
|
Savings
and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or
similar institution, which is supervised and examined by a State
or
Federal authority having supervision over any such institutions or
is a
foreign savings and loan association or equivalent institution and
(b) has
an audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a copy of which is attached
hereto.
|
|
|
___
|
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
|
L-1-3
|
|
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.
L-1-4
6. Until
the date of purchase of the Rule 144A Securities, the Buyer will notify each
of
the parties to which this certification is made of any changes in the
information and conclusions herein. Until such notice is given, the
Buyer’s purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Buyer is a bank or savings and loan is provided above, the Buyer agrees that
it
will furnish to such parties updated annual financial statements promptly after
they become available.
|
Print
Name of Buyer
|
||
| By: ________________________ | ||
| Name: | ||
| Title: | ||
| Date: _______________________ | ||
L-1-5
ANNEX
2 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal
year. For purposes of determining the amount of securities owned by
the Buyer or the Buyer’s Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer’s Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in
the preceding sentence applies, the securities may be valued at
market.
|
|
___
|
The
Buyer owned $___________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year
(such amount being calculated in accordance with Rule
144A).
|
|
|
___
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $__________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year
(such amount being calculated in accordance with Rule
144A).
|
3. The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
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.
L-1-6
5. The
Buyer is familiar with Rule 144A and understands that the parties listed in
the
Rule 144A Transferee Certificate to which this certification relates are relying
and will continue to rely on the statements made herein because one or more
sales to the Buyer will be in reliance on Rule 144A. In addition, the
Buyer will only purchase for the Buyer’s own account.
6. Until
the date of purchase of the Certificates, the undersigned will notify the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
|
Print
Name of Buyer or Adviser
|
||
| By: ________________________ | ||
| Name: | ||
| Title: | ||
| IF AN ADVISER: | ||
|
Print
Name of Buyer
|
||
| Date: ______________________________ | ||
X-0-0
XXXXXXX
X-0
[FORM
OF]
ERISA LETTER (COVERED CERTIFICATES)
| ________________________ | ||
| Date |
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates, we certify that
we
are not, and are not acquiring the Certificates on behalf of or with plan assets
of an “employee benefit plan” as defined in section 3(3) of ERISA that is
subject to Title I of ERISA, a “plan” as defined in section 4975 of the Code
that is subject to section 4975 of the Code, or any person investing on behalf
of or with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under
ERISA) of such an employee benefit plan or plan, or (ii) the purchase and
holding of the Certificates satisfy the requirements for exemptive relief under
XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or a similar
exemption. We understand that, in the event that such representation
is violated, such transfer or acquisition shall be void and of no
effect.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferee | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
L-2-1
EXHIBIT
M
[FORM
OF]
REQUEST FOR RELEASE
(for
Trustee)
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
Loan
Information
Name
of
Mortgagor:
___________________________________
Servicer
Loan
No.: ___________________________________
Trustee
Name: ___________________________________
Address:
___________________________________
___________________________________
___________________________________
Trustee
Mortgage
File
No.:
___________________________________
The
undersigned Master Servicer hereby acknowledges that it has received from The
Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the “Documents”). All capitalized terms not otherwise defined in
this Request for Release shall have the meanings given them in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc., as
a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master Servicer
and CWALT, Inc., as Depositor.
|
( )
|
Mortgage
Note dated ___________, 20__, in the original principal sum of
$___________, made by _________________________ , payable
to, or endorsed to the order of, the
Trustee.
|
|
( )
|
Mortgage
recorded on __________________ as instrument no.
_________________________ in the County Recorder’s Office of the
County of _________________________, State of
_______________________ in book/reel/docket
_________________________ of official records at page/image
_______________________________.
|
|
( )
|
Deed
of Trust recorded on _________________________ as instrument no.
_____________________in the County Recorder’s Office of the County
of __________________________, State of
_____________________ in book/reel/docket
_________________________ of official records at page/image
____________________________.
|
M-1
|
( )
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on
_________________________ as instrument no.
_________________________ in the County Recorder’s Office of the
County of _________________________ , State of
_________________________ in book/reel/docket
_________________________ of official records at page/image
______________________.
|
|
( )
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
( ) _________________________________________________________________________________
( ) _________________________________________________________________________________
( ) _________________________________________________________________________________
( ) _________________________________________________________________________________
The
undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The
Master Servicer shall hold and retain possession of the Documents in trust
for
the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Master Servicer shall not cause or knowingly permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Servicer assert or seek
to assert any claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The
Master Servicer shall return each and every Document previously requested from
the Mortgage File to the Trustee when the need therefor no longer exists, unless
the Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Master Servicer shall at all times be
earmarked for the account of the Trustee, and the Master Servicer shall keep
the
Documents and any proceeds separate and distinct from all other property in
the
Master Servicer’s possession, custody or control.
M-2
| COUNTRYWIDE HOME LOANS | ||
| SERVICING LP | ||
| By ____________________________ | ||
| Its _____________________________ |
Date:_________________,
20__
M-3
EXHIBIT
N
[FORM
OF]
REQUEST FOR RELEASE OF DOCUMENTS
To: The
Bank of New York Attn: Mortgage
Custody
Services
|
|
Re:
|
The
Pooling & Servicing Agreement dated [month] 1, 200_, among Countrywide
Home Loans, Inc., as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as
a Seller,
Park Sienna LLC, as
a Seller, Countrywide Home Loans Servicing LP, as
Master Servicer, CWALT, Inc. and The Bank of
New York, as Trustee
|
Ladies
and Gentlemen:
In
connection with the administration of the Mortgage Loans held by you as Trustee
for CWALT, Inc., we request the release of the Mortgage Loan File for the
Mortgage Loan(s) described below, for the reason indicated.
FT
Account
#: Pool
#:
Mortgagor’s
Name, Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check one)
|
|
1.
|
Mortgage
Loan paid in full (Countrywide Home Loans, Inc. hereby certifies
that all
amounts have been received).
|
|
|
2.
|
Mortgage
Loan Liquidated (Countrywide Home Loans, Inc. hereby certifies
that all
proceeds of foreclosure, insurance, or other liquidation have been
finally
received).
|
|
|
3.
|
Mortgage
Loan in Foreclosure.
|
|
|
4.
|
Mortgage
Loan repurchased by the Master Servicer pursuant to Section 3.11(a)
(Countrywide Home Loans Servicing LP hereby certifies that the
Purchase
Price for the Mortgage Loan has been deposited in the Certificate
Account).
|
|
|
5.
|
Other
(explain):
|
If
item 1
or 2 above is checked, and if all or part of the Mortgage File was previously
released to us, please release to us our previous receipt on file with you,
as
well as any additional documents in your possession relating to the
above-specified Mortgage Loan. If item 3, 4 or 5 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge
your
receipt by signing in the space indicated below, and returning this
form.
N-1
COUNTRYWIDE
HOME LOANS, INC.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
By: _________________________
Name:
Title:
Date:
[COUNTRYWIDE
HOME LOANS SERVICING LP]
By: _________________________
Name:
Title:
Date:
TRUSTEE
CONSENT TO RELEASE AND
ACKNOWLEDGEMENT
OF RECEIPT
By: _________________________
Name:
Title:
Date:
N-2
[Reserved]
O-1
[FORM
OF]
SUPPLEMENTAL TRANSFER AGREEMENT
THIS
SUPPLEMENTAL TRANSFER AGREEMENT, dated as of ____________, 200_ (this
“Supplemental Transfer Agreement”), among CWALT, INC., a Delaware corporation,
as depositor (the “Depositor”), COUNTRYWIDE HOME LOANS, INC. (“CHL”), a New York
corporation, as a seller (a “Seller”), PARK GRANADA LLC (“Park Granada”), a
Delaware limited liability company, as a seller (a “Seller”), PARK MONACO INC.
(“Park Monaco”), a Delaware limited liability corporation, as a seller (a
“Seller”), PARK SIENNA LLC (“Park Sienna”), a Delaware limited liability
company, as a seller (a “Seller” and together with CHL, Park Granada and Park
Monaco, the “Sellers”) under the Pooling and Servicing Agreement referred to
below, and THE BANK OF NEW YORK, a New York banking corporation, as trustee
(the
“Trustee”);
WHEREAS,
the Depositor, the Sellers, the Trustee and Countrywide Home Loans Servicing
LP,
as Master Servicer, have entered in the Pooling and Servicing Agreement, dated
as of [month] 1, 2003 (the “Pooling and Servicing Agreement”), in relation to
the Alternative Loan Trust 200_-_, Mortgage Pass-Through Certificates, Series
200_-_;
WHEREAS,
Section 2.01(e) of the Pooling and Servicing Agreement provides for the parties
hereto to enter into this Supplemental Transfer Agreement in accordance with
the
terms and conditions of the Pooling and Servicing Agreement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged the
parties hereto agree as follows:
(a) The
“Supplemental Transfer Date” with respect to this Supplemental Transfer
Agreement shall be ________, 200_.
(b) The
“Aggregate Supplemental Purchase Amount” with respect to this Supplemental
Transfer Agreement shall be $________; provided, however, that such amount
shall
not exceed the amount on deposit in the Supplemental Loan Account.
(c) The
“Capitalized Interest Requirement” with respect to this Supplemental Transfer
Agreement shall be $________; provided, however, that such amount shall not
exceed the amount on deposit in the Capitalized Interest Account.
(d) [Reserved]
(e) In
case any provision of this Supplemental Transfer Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions or obligations shall not in any way be affected or impaired
thereby.
(f) In
the event of any conflict between the provisions of this Supplemental Transfer
Agreement and the Pooling and Servicing Agreement, the provisions of the Pooling
and Servicing Agreement shall prevail.
P-1
(g) This
Supplemental Transfer Agreement shall be governed by, and shall be construed
and
enforced in accordance with the laws of the State of New York.
(h) The
Supplemental Transfer Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument.
P-2
IN
WITNESS WHEREOF, the parties to this Supplemental Transfer Agreement have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
|
CWALT,
INC.,
as
Depositor
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
COUNTRYWIDE
HOME LOANS, INC.,
as
Seller
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
PARK
GRANADA LLC,
as
a Seller
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
PARK
MONACO, INC.,
as
a Seller
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
P-3
|
PARK
SIENNA LLC,
as
a Seller
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
THE
BANK OF NEW YORK,
not
in its individual capacity,
but
solely as Trustee
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Acknowledged
and Agreed:
COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Master Servicer
By: COUNTRYWIDE
GP, INC.
By: _____________________________
Name:
Title:
P-4
GLOSSARY
of TERMS for STANDARD & POOR’S LEVELS® VERSION 5.7 FILE FORMAT
APPENDIX E
– Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
Standard
&
Poor’s
High Cost Loan
Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx.
§§ 00-00-000 et seq. Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101
et seq. Effective
for covered loans offered or entered into on or after January
1, 2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat.
§§ 36a-746 et seq. Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1
et seq. Effective
October 1, 2002 – March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 – current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1
et seq. Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5
et seq. Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101
et seq. Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207)
and;
|
|
High
APR Consumer Loan (id. § 16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 287 – High Cost Home Loan Act, Ky. Rev. Stat. §§ 360.100 et
seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq. and 209 C.M.R. §§ 40.01 et
seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat.
§§ 58-21A-1 et seq. Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home
Loans, N.C. Gen. Stat. §§ 24-1.1E et seq. Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 2002
|
West
Virginia Mortgage Loan Act
Loan
|
Q-1
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 – March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 – July 5, 2004
|
Covered
Home Loan
|
Standard & Poor’s Home Loan
Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 – March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat.
§§ 58-21A-1 et seq. Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat.
§§ 24-1.1E et seq. Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home
Loans Act, S.C. Code Xxx. §§ 37-23-10 et seq. Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-2
EXHIBIT
R-1
[FORM
OF]
CLASS A-1-A SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-1-B SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-2-A SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-3 SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
SWAP CONTRACT ASSIGNMENT AGREEMENT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
SWAP CONTRACT ADMINISTRATION AGREEMENT
Delivered
to the Trustee at closing and on file with the Trustee.
S-2-1
EXHIBIT
T
[FORM
OF]
OFFICER’S CERTIFICATE WITH RESPECT TO PREPAYMENTS
MORTGAGE
BACKED CERTIFICATES,
Series
200_-__
[Date]
Via
Facsimile
__________________,
as
Trustee
_______________
_______________________
Dear
Sir
or Madam:
Reference
is made to the Pooling and Servicing Agreement, dated as of _________, 200_,
(the “Pooling and Servicing Agreement”) among [CWALT, Inc.], as Depositor,
[Countrywide Home Loans, Inc.], as a Seller, [Park Granada LLC], as a Seller,
[Park Monaco Inc.], as a Seller, [Park Sienna LLC], as a Seller, [Countrywide
Home Loans Servicing LP], as Master Servicer and __________________, as
Trustee. Capitalized terms used herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
__________________
hereby certifies that he/she is a Servicing Officer, holding the office set
forth beneath his/her name and hereby further certifies as follows:
With
respect to the Distribution Date in _________ 200_ and each Mortgage Loan set
forth in the attached schedule:
1. A
Principal Prepayment in full or in part was received during the related
Prepayment Period;
2. Any
Prepayment Charge due under the terms of the Mortgage Note with respect to
such
Principal Prepayment was or was not, as indicated on the attached schedule
using
“Yes” or “No”, received from the Mortgagor and deposited in the Certificate
Account;
3. As
to each Mortgage Loan set forth on the attached schedule for which all or part
of the Prepayment Charge required in connection with the Principal Prepayment
was waived by the Master Servicer, such waiver was, as indicated on the attached
schedule, based upon:
(i) the
Master Servicer’s determination that such waiver would maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value
of
such Prepayment Charge, or
(ii)(A) the
enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors’ rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law; and
4. We
certify that all amounts due in connection with the waiver of a Prepayment
Charge inconsistent with clause 3 above which are required to be deposited
by
the Master Servicer pursuant to Section 3.19 of the Pooling and Servicing
Agreement, have been or will be so deposited.
| [COUNTRYWIDE HOME LOANS, INC.], | ||
|
as
Master Servicer
|
T-2
SCHEDULE
OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED DURING THE RELATED
PREPAYMENT PERIOD
|
Loan
Number
|
Clause
2: Yes/No
|
Clause
3: (i) or (ii)
|
T-3
EXHIBIT
U
MONTHLY
STATEMENT
[On
file
with Trustee]
U-1
EXHIBIT
V-1
[FORM
OF]
PERFORMANCE CERTIFICATION
(Servicer)
[On
file
with Trustee]
V-1-1
EXHIBIT
V-2
[FORM
OF]
PERFORMANCE CERTIFICATION
(Trustee)
[On
file
with Trustee]
V-2-1
EXHIBIT
W
[FORM
OF]
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by [the Master Servicer] [Trustee]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or
other triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third
party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect
on the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or
distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve
accounts or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who
prepared the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are
prepared in
accordance with timeframes and other terms set forth in the
transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to
the Servicer’s
investor records, or such other number of days specified in
the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by
the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are
made, reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such
other period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days
prior to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be
made on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business
days to the
obligor’s records maintained by the servicer, or such other number
of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as
set forth in
the transaction agreements.
|
|
W-1
| [NAME OF MASTER SERVICER] [NAME OF TRUSTEE] [NAME OF CO-TRUSTEE] [NAME OF SUBSERVICER] | ||
| Date: _________________________ | ||
| By: ________________________________ | ||
| Name: | ||
| Title: |
W-2
EXHIBIT
X
[FORM
OF]
LIST OF ITEM 1119 PARTIES
ALTERNATIVE
LOAN TRUST 200_-__
MORTGAGE
PASS-THROUGH CERTIFICATES,
Series
200_-__
[Date]
|
Party
|
Contact
Information
|
X-1
EXHIBIT
Y
FORM
OF
XXXXXXXX-XXXXX CERTIFICATION
(REPLACEMENT
OF MASTER SERVICER)
|
Re:
|
Alternative
Loan Trust 200[ ]-[ ], Mortgage Pass-Through Certificates,
Series 200[ ]-[ ]
|
The
undersigned Servicer hereby
certifies to the Depositor and its officers, directors and Affiliates
(collectively, the “Certification Parties”) as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification in
connection with the certification concerning the Trust Fund to be signed
by an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I
have reviewed the servicer compliance statement of the Master Servicer provided
in accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’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 Master Servicer during 200[ ] that
were
delivered by the Master Servicer to the Trustee pursuant to the Agreement
(collectively, the “Servicing Information”);
2. Based
on my knowledge, the 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 Servicing Information;
3. Based
on my knowledge, all of the Servicing Information required to be provided
by the
Master Servicer under the Agreement has been provided to the Depositor or
the
Trustee, as applicable;
4. I
am responsible for reviewing the activities performed by the Master Servicer
as
servicer under the Servicing Agreement (the “Pooling and Servicing Agreement”)
relating to the above-referenced Series, among Countrywide Home Loans, Inc.,
as
a seller, Park Granada LLC, as a seller, Park Sienna LLC, as a seller, Park
Monaco Inc., as a seller,
[ ], as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee, and based on my knowledge and the compliance review conducted in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Pooling and Servicing Assessment or the Attestation Report,
the
Master Servicer has fulfilled its obligations under the Agreement in all
material respects; and
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5. The
Compliance Statement required to be delivered by the Master Servicer pursuant
to
the Pooling and Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Master Servicer and by any Subservicer or
Reporting Subcontractor pursuant to the Agreement, have been provided to
the
Depositor. Any material instances of noncompliance described in such
reports have been disclosed to the Depositor. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in such
reports.
| [MASTER SERVICER] | ||
| By:________________________________ | ||
|
Name:
|
||
|
Title:
|
||
| Date: _________________________ | ||
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