EXHIBIT 99.1
------------
The Pooling and Servicing Agreement
EXECUTION COPY
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CWALT, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
PARK GRANADA LLC,
Seller
PARK MONACO INC.,
Seller
PARK SIENNA LLC,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2006
-----------------------------------
ALTERNATIVE LOAN TRUST 2006-J5
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-J5
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Table of Contents
Page
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ARTICLE I DEFINITIONS
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans.............................II-1
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans..............II-7
SECTION 2.03. Representations, Warranties and Covenants of the
Sellers and Master Servicer............................II-10
SECTION 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans......................................II-12
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions...........................................II-13
SECTION 2.06. Execution and Delivery of Certificates..................II-13
SECTION 2.07. REMIC Matters...........................................II-13
SECTION 2.08. Covenants of the Master Servicer........................II-13
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans...............III-1
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers............................................III-2
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of
the Master Servicer.....................................III-2
SECTION 3.04. Trustee to Act as Master Servicer.......................III-2
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account; the Pre-funding Account
the Capitalized Interest Account; the Supplemental
Interest Trust and the Corridor Contract Reserve Fund;
the Principal Reserve Fund..............................III-3
SECTION 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.........................................III-7
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans............................III-7
SECTION 3.08. Permitted Withdrawals from the Certificate Account,
the Distribution Account, the Corridor Contract
Reserve Fund and the Principal Reserve Fund.............III-8
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies.............................III-10
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.............................................III-11
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans..............................III-12
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files........III-15
SECTION 3.13. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee....................III-15
SECTION 3.14. Servicing Compensation.................................III-16
SECTION 3.15. Access to Certain Documentation........................III-16
SECTION 3.16. Annual Statement as to Compliance......................III-16
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds.........III-18
SECTION 3.18. The Corridor Contracts.................................III-18
SECTION 3.19. Prepayment Charges.....................................III-18
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.................................................IV-1
SECTION 4.02. Priorities of Distribution...............................IV-2
SECTION 4.03. [Reserved]...............................................IV-7
SECTION 4.04. Allocation of Realized Losses............................IV-7
SECTION 4.05. Cross-Collateralization; Adjustments to Available
Funds....................................................IV-8
SECTION 4.06. Monthly Statements to Certificateholders.................IV-9
SECTION 4.07. Determination of Pass-Through Rates for COFI
Certificates............................................IV-10
SECTION 4.08. Determination of Pass-Through Rates for LIBOR
Certificates............................................IV-11
SECTION 4.09. Distributions from the Corridor Contract Reserve Fund...IV-12
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates..........................................V-1
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates..................................V-1
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.........V-5
SECTION 5.04. Persons Deemed Owners.....................................V-6
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses.................................................V-6
SECTION 5.06. Maintenance of Office or Agency...........................V-6
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
Servicer.................................................VI-1
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.................................................VI-1
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers,
the Master Servicer and Others...........................VI-1
SECTION 6.04. Limitation on Resignation of Master Servicer.............VI-2
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default.......................................VII-1
SECTION 7.02. Trustee to Act; Appointment of Successor................VII-3
SECTION 7.03. Notification to Certificateholders......................VII-4
ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee......................................VIII-1
SECTION 8.02. Certain Matters Affecting the Trustee..................VIII-2
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans..VIII-3
SECTION 8.04. Trustee May Own Certificates...........................VIII-3
SECTION 8.05. Trustee's Fees and Expenses............................VIII-3
SECTION 8.06. Eligibility Requirements for Trustee...................VIII-3
SECTION 8.07. Resignation and Removal of Trustee.....................VIII-4
SECTION 8.08. Successor Trustee......................................VIII-5
SECTION 8.09. Merger or Consolidation of Trustee.....................VIII-5
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..........VIII-5
SECTION 8.11. Tax Matters............................................VIII-7
SECTION 8.12. Monitoring of Significance Percentage..................VIII-8
ii
ARTICLE IX TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all
Mortgage Loans...........................................IX-1
SECTION 9.02. Final Distribution on the Certificates...................IX-1
SECTION 9.03. Additional Termination Requirements......................IX-2
ARTICLE X MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.................................................X-1
SECTION 10.02. Recordation of Agreement; Counterparts....................X-2
SECTION 10.03. Governing Law.............................................X-2
SECTION 10.04. Intention of Parties......................................X-2
SECTION 10.05. Notices...................................................X-4
SECTION 10.06. Severability of Provisions................................X-5
SECTION 10.07. Assignment................................................X-5
SECTION 10.08. Limitation on Rights of Certificateholders................X-5
SECTION 10.09. Inspection and Audit Rights...............................X-6
SECTION 10.10. Certificates Nonassessable and Fully Paid.................X-6
SECTION 10.11. [Reserved]................................................X-6
SECTION 10.12. Protection of Assets......................................X-6
ARTICLE XI EXCHANGE ACT REPORTING
SECTION 11.01. Filing Obligations.......................................XI-7
SECTION 11.02. Form 10-D Filings........................................XI-7
SECTION 11.03. Form 8-K Filings.........................................XI-8
SECTION 11.04. Form 10-K Filings........................................XI-8
SECTION 11.05. Xxxxxxxx-Xxxxx Certification.............................XI-8
SECTION 11.06. Form 15 Filing...........................................XI-9
SECTION 11.07. Report on Assessment of Compliance and Attestation.......XI-9
SECTION 11.08. Use of Subservicers and Subcontractors..................XI-10
SECTION 11.09. Amendments..............................................XI-11
SECTION 11.10. Reconciliation of Accounts..............................XI-11
iii
SCHEDULES
Schedule I: Mortgage Loan Schedule.......................................................S-I-1
Schedule II-A: Representations and Warranties of Countrywide.............................S-II-A-1
Schedule II-B: Representations and Warranties of Park Granada............................S-II-B-1
Schedule II-C Representations and Warranties of Park Monaco Inc.........................S-II-C-1
Schedule II-D Representations and Warranties of Park Sienna LLC.........................S-II-D-1
Schedule III-A: Representations and Warranties of Countrywide as to the Mortgage Loans...S-III-A-1
Schedule III-B: Representations and Warranties of Countrywide as to the Countrywide
Mortgage Loans...........................................................S-III-B-1
Schedule III-C: Representations and Warranties of Park Granada as to the Park Granada
Mortgage Loans...........................................................S-III-C-1
Schedule III-D Representations and Warranties of Park Monaco Inc.
as to the Park Monaco Inc. Mortgage Loans................................S-III-D-1
Schedule III-E Representations and Warranties of Park Sienna LLC
as to the Park Sienna LLC Mortgage Loans.................................S-III-E-1
Schedule IV: Representations and Warranties of the Master Servicer.......................S-IV-1
Schedule V: Principal Balance Schedules (if applicable)..................................S-V-1
Schedule VI: Form of Monthly Master Servicer Report......................................S-VI-I
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount Certificates)............A-1
Exhibit B: Form of Subordinated Certificate...............................................B-1
Exhibit C-1: Form of Class A-R Certificate................................................C-1-1
Exhibit C-2: Form of Class P Certificate..................................................C-2-1
Exhibit C-3 [Reserved]...................................................................C-3-1
Exhibit D: Form of Notional Amount Certificate............................................D-1
Exhibit E: Form of Reverse of Certificates................................................E-1
Exhibit F-1: Form of Initial Certification of Trustee (Initial Mortgage Loans)............F-1-1
Exhibit F-2: Form of Initial Certification of Trustee (Supplemental Mortgage
Loans).......................................................................F-2-1
Exhibit G-1: Form of Delay Delivery Certification of Trustee (Initial Mortgage
Loans).......................................................................G-1-1
Exhibit G-2: Form of Delay Delivery Certification of Trustee (Supplemental
Mortgage Loans)..............................................................G-2-1
Exhibit H-1: Form of Final Certification of Trustee (Initial Mortgage Loans)..............H-1-1
Exhibit H-2: Form of Final Certification of Trustee (Supplemental Mortgage
Loans).......................................................................H-2-1
Exhibit I: Form of Transfer Affidavit.....................................................I-1
Exhibit J-1: Form of Transferor Certificate (Residual)....................................J-1-1
Exhibit J-2: Form of Transferor Certificate (Private).....................................J-2-1
Exhibit K: Form of Investment Letter [Non-Rule 144A]......................................K-1
Exhibit L-1: Form of Rule 144A Letter.....................................................L-1-1
Exhibit L-2: Form of ERISA Letter (Covered Certificates)..................................L-2-1
Exhibit M: Form of Request for Release (for Trustee)......................................M-1
Exhibit N: Form of Request for Release of Documents (Mortgage Loan - Paid
in Full, Repurchased and Replaced).............................................N-1
Exhibit O: [Reserved].....................................................................O-1
Exhibit P: Form of Supplemental Transfer Agreement........................................P-1
Exhibit Q: Standard & Poor's LEVELS(R) Version 5.7 Glossary Revised,
iv
Appendix E.....................................................................Q-1
Exhibit R: Form of Corridor Contract......................................................R-1
Exhibit S-1: Form of Corridor Contract Assignment Agreement...............................S-1-1
Exhibit S-2: [Reserved]...................................................................S-2-1
Exhibit T: Form of Officer's Certificate with respect to Prepayments......................T-1
Exhibit U: Monthly Report.................................................................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 of
Master Servicer)...............................................................Y-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of July 1, 2006,
among CWALT, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC. ("Countrywide"), a New York corporation, as a
seller (a "Seller"), PARK GRANADA LLC ("Park Granada"), a Delaware limited
liability company, as a seller (a "Seller"), PARK MONACO INC. ("Park
Monaco"), a Delaware corporation, as a seller (a "Seller"), PARK SIENNA LLC
("Park Sienna"), a Delaware limited liability company, as a seller (a
"Seller") COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership,
as master servicer (the "Master Servicer"), and THE BANK OF NEW YORK, a
banking corporation organized under the laws of the State of New York, as
trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. For federal income tax purposes,
the Trust Fund (other than the Pre-funding Account, the Capitalized Interest
Account, the Corridor Contract, the Supplemental Interest Trust and the
Corridor Contract Reserve Fund) will consist of three real estate mortgage
investment conduits (each a "REMIC" or, in the alternative, the "Lower Tier
REMIC," the "Middle Tier REMIC" and the "Master REMIC," respectively). Each
Certificate, other than the Class A-R Certificate, will represent ownership
of one or more regular interests in the Master REMIC for purposes of the
REMIC Provisions. The Class A-R Certificate will represent ownership of the
sole class of residual interest in the Lower Tier REMIC, the Middle Tier
REMIC and the Master REMIC. The Master REMIC will hold as assets the several
classes of uncertificated Middle Tier REMIC Interests (other than the Class
MTR-A-R Interest). The Middle Tier REMIC will hold as assets the several
classes of uncertificated Lower Tier REMIC Interests (other than the Class
LTR-A-R Interest). The Lower Tier REMIC will hold as assets all property of
the Trust Fund (other than the Pre-funding Account, the Capitalized Interest
Account, the Corridor Contract, the Supplemental Interest Trust and the
Corridor Contract Reserve Fund). Each Middle Tier REMIC Interest (other than
the Class MTR-A-R Interest) is hereby designated as a regular interest in the
Middle Tier REMIC and each Lower Tier REMIC Interest (other than the Class
LTR-A-R Interest) is hereby designated as a regular interest in the Lower
Tier REMIC . The latest possible maturity date of all REMIC regular
interests created herein shall be the Latest Possible Maturity Date.
The following table sets forth characteristics of the Master REMIC
Certificates, together with the minimum denominations and integral multiples
in excess thereof in which such Classes shall be issuable (except that one
Certificate of each Class of Certificates may be issued in a different amount
and, in addition, one Residual Certificate representing the Tax Matters
Person Certificate may be issued in a different amount):
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Integral
Initial Class Pass-Through Multiples in
Class Certificate Rate Minimum Excess of
Designation Balance (per annum) Denomination Minimum
-------------------------------------------------------------------------------
Class 1-A-1 $116,500,000.00 6.50% $25,000.00 $1.00
-------------------------------------------------------------------------------
Class 1-A-2 $32,000,000.00 (1) $25,000.00 $1.00
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Class 1-A-3 $32,000,000.00(2) (3) $25,000.00(4) $1.00(4)
------------------------------------------------------------------------------
Class 1-A-4 $5,000,000.00 6.50% $25,000.00 $1.00
-------------------------------------------------------------------------------
Class 1-A-5 $48,630,000.00 6.50% $25,000.00 $1.00
-------------------------------------------------------------------------------
Class 1-A-6 $33,000,000.00 (5) $25,000.00 $1.00
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Class 1-A-7 $33,000,000.00(6) (7) $25,000.00(4) $1.00(4)
-------------------------------------------------------------------------------
Class 1-A-8 $16,683,000.00 6.50% $25,000.00 $1.00
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Class 2-A-1 $100,024,000.00 7.00% $25,000.00 $1.00
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Class 2-A-2 $3,628,000.00 7.00% $25,000.00 $1.00
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Class 3-A-1 $24,594,000.00 (8) $25,000.00 $1.00
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Class 4-A-1 $18,773,000.00 (9) $25,000.00 $1.00
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Class 1-X $212,148,849.00(10) (11) $25,000.00(4) $1.00(4)
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Class 2-X $109,362,808(12) (13) $25,000.00(4) $1.00(4)
-------------------------------------------------------------------------------
Class PO-1 $1,938,876.00 (14) $25,000.00 $1.00
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Class PO-2 $16,264.00.00 (14) $25,000.00 $1.00
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Class A-R(15) $100.00 6.50% (16) (16)
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Class M $12,003,000.00 (17) $25,000.00 $1.00
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Class B-1 $5,144,000.00 (17) $25,000.00 $1.00
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Class B-2 $3,430,000.00 (17) $25,000.00 $1.00
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Class B-3 $3,001,000.00 (17) $100,000.00 $1.00
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Class B-4 $2,572,000.00 (17) $100,000.00 $1.00
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Class B-5 $1,715,111.00 (17) $100,000.00 $1.00
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Class P $100.00(18) 0.00%(18) (18) (18)
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(1) The Class 1-A-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of LIBOR plus 0.50%, subject to a
maximum and minimum Pass-Through Rate of 6.50% and 0.50% per annum. The
Pass-Through Rate for the Class 1-A-2 Certificates for the Interest
Accrual Period for the first Distribution Date is 5.88% per annum.
(2) The Class 1-A-3 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount.
(3) The Class 1-A-3 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of 6.00% minus LIBOR, subject to a
maximum and minimum Pass-Through Rate of 6.00% and 0.00% per annum,
respectively. The Pass-Through Rate for the Class 1-A-3 Certificates
for the Interest Accrual Period for the first Distribution Date is 0.62%
per annum.
(4) Minimum denomination is based on the Notional Amount of such Class.
2
(5) The Class 1-A-6 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of LIBOR plus 0.60%, subject to a
maximum and minimum Pass-Through Rate of 6.50% and 0.60% per annum. The
Pass-Through Rate for the Class 1-A-6 Certificates for the Interest
Accrual Period for the first Distribution Date is 5.98% per annum.
(6) The Class 1-A-7 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount.
(7) The Class 1-A-7 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of 5.90% minus LIBOR, subject to a
maximum and minimum Pass-Through Rate of 5.90% and 0.00% per annum,
respectively. The Pass-Through Rate for the Class 1-A-7 Certificates
for the Interest Accrual Period for the first Distribution Date is 0.52%
per annum.
(8) The Class 3-A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans in Loan Group 3,
weighted on the basis of the Stated Principal Balances thereof as of the
Due Date in the preceding calendar month (after giving effect to
Principal Prepayments received in the Prepayment Period related to such
prior Due Date). The Pass-Through Rate for the Class 3-A-1 Certificates
for the Interest Accrual Period for the first Distribution Date is 6.12%
per annum.
(9) The Class 4-A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans in Loan Group 4,
weighted on the basis of the Stated Principal Balances thereof as of the
Due Date in the preceding calendar month (after giving effect to
Principal Prepayments received in the Prepayment Period related to such
prior Due Date). The Pass-Through Rate for the Class 4-A-1 Certificates
for the Interest Accrual Period for the first Distribution Date is 6.05%
per annum.
(10) The Class 1-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount.
(11) The Pass-Through Rate for the Class 1-X Certificates for the Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the weighted average of the Adjusted Net Mortgage Rates of the
Non-Discount Mortgage Loans in Loan Group 1, weighted on the basis of
the Stated Principal Balance thereof as of the Due Date in the preceding
calendar month (after giving effect to Principal Prepayments received in
the Prepayment Period related to such prior Due Date), over (b) 6.50%.
The Pass-Through Rate for the Class 1-X Certificates for the Interest
Accrual Period for the first Distribution Date is 0.19730% per annum.
(12) The Class 2-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount.
(13) The Pass-Through Rate for the Class 2-X Certificates for the Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the weighted average of the Adjusted Net Mortgage Rates of the
Non-Discount Mortgage Loans in Loan Group 2, weighted on the basis of
the Stated Principal Balance thereof as of the Due Date in the preceding
calendar month (after giving effect to Principal Prepayments received in
the Prepayment Period related to such prior Due Date), over (b) 7.00%.
The Pass-Through Rate for the Class 2-X Certificates for the Interest
Accrual Period for the first Distribution Date is 0.23858% per annum.
(14) The Class PO-1 and Class PO-2 Certificates are Principal Only
Certificates and will not receive any distributions of interest.
3
(15) The Class A-R Certificates represent the sole Class of residual
interest in the REMIC.
(16) The Class A-R Certificate shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.01.
(17) The Pass-Through Rate for each Class of Subordinated Certificates for
the Interest Accrual Period for any Distribution Date will be a per
annum rate equal to the Subordinate Pass-Through Rate. The Pass-Through
Rate for each Class of Subordinated Certificates for the initial
Interest Accrual Period is 6.58% per annum.
(18) The Class P Certificates will also have a notional amount equal to the
aggregate Stated Principal Balance of the Initial Mortgage Loans with a
Prepayment Charge. The Class P Certificates are issuable in minimum
notional amounts equal to a 20% Percentage Interest and any amount in
excess thereof. For federal income tax purposes, the Class P
Certificates will be entitled to 100% of all the amounts payable with
respect to the Class MTR-P Middle Tier REMIC Interest.
4
The following table specifies the class designation, interest rate, and
principal amount for each class of Lower Tier REMIC Interests:
-------------------------------------------------------------------------------
Lower Tier
REMIC Interest Initial Corresponding
Designation Principal Balance Interest Rate Loan Group
-------------------------------------------------------------------------------
LTR-A-1 (1) 6.50% 1
-------------------------------------------------------------------------------
LTR-B-1 (1) 6.50% 1
-------------------------------------------------------------------------------
LTR-C-1 (1) 6.50% 1
-------------------------------------------------------------------------------
LTR-PO-1 $1,938,876 (2) 1
-------------------------------------------------------------------------------
LTR-X-1 (3) (4) 1
-------------------------------------------------------------------------------
LTR-A-2 (1) 7.00% 2
-------------------------------------------------------------------------------
LTR-B-2 (1) 7.00% 2
-------------------------------------------------------------------------------
LTR-C-2 (1) 7.00% 2
-------------------------------------------------------------------------------
LTR-PO-2 $16,264,00 (2) 2
-------------------------------------------------------------------------------
LTR-X-2 (3) (5) 2
-------------------------------------------------------------------------------
LTR-A-3 (1) (6) 3
-------------------------------------------------------------------------------
LTR-B-3 (1) (6) 3
-------------------------------------------------------------------------------
LTR-C-3 (1) (6) 3
-------------------------------------------------------------------------------
LTR-A-4 (1) (7) 4
-------------------------------------------------------------------------------
LTR-B-4 (1) (7) 4
-------------------------------------------------------------------------------
LTR-C-4 (1) (7) 4
-------------------------------------------------------------------------------
LTR-A-R (8) (8) N/A
-------------------------------------------------------------------------------
LTR-P $100 (9) All
-------------------------------------------------------------------------------
(1) Each Class A Lower Tier REMIC Interest will have an Initial Principal
Balance equal to 0.90% of the Subordinated Portion of its Corresponding
Loan Group. Each Class B Lower Tier REMIC Interest will have an Initial
Principal Balance equal to 0.10% of the Subordinated Portion of its
Corresponding Loan Group. Each Class C Lower Tier REMIC Interest will
have an Initial Principal Balance equal to the excess of the Initial
Principal Balance of its Corresponding Loan Group (in the case of Loan
Group 1 and Loan Group 2, as reduced by the Loan Group's corresponding PO
Balance) over the initial aggregate principal balances of the Class A and
Class B Lower Tier REMIC Interests corresponding to that Loan Group. For
this purpose, the Initial Principal Balance of a Loan Group shall include
the amount, in any, on deposit in the Pre-funding account with respect to
that Loan Group. Hereafter, the Class A, Class B and Class C Lower Tier
REMIC Interests are referred to as "Tracking Interests."
(2) This Class of Lower Tier REMIC Interest does not pay any interest.
(3) This Class of Lower Tier REMIC Interest does not pay any principal.
(4) This Class of Lower Tier REMIC Interest is entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Non-Discount Mortgage Loans in the corresponding Loan Group.
Specifically, for each related Distribution Date, this Class of Lower
Tier REMIC Interest is entitled to interest accruals on each Non-Discount
Mortgage Loan in excess of an Adjusted Net Mortgage Rate of 6.50% per
annum.
(5) This Class of Lower Tier REMIC Interest is entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Non-Discount Mortgage Loans in the corresponding Loan Group.
Specifically, for each related Distribution Date, this Class of Lower
Tier REMIC Interest is
5
entitled to interest accruals on each Non-Discount Mortgage Loan in
excess of an Adjusted Net Mortgage Rate of 7.00% per annum.
(6) This Class of Lower Tier REMIC Interest is entitled to receive on each
Distribution Date interest at a per annum rate equal to the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans in Loan
Group 3, weighted on the basis of the Stated Principal Balances thereof
as of the Due Date in the preceding calendar month (after giving effect
to Principal Prepayments received in the Prepayment Period related to
such prior Due Date).
(7) This Class of Lower Tier REMIC Interest is entitled to receive on each
Distribution Date interest at a per annum rate equal to the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans in Loan
Group 4, weighted on the basis of the Stated Principal Balances thereof
as of the Due Date in the preceding calendar month (after giving effect
to Principal Prepayments received in the Prepayment Period related to
such prior Due Date).
(8) The Class LTR-A-R Lower Tier REMIC Interest is the sole class of residual
interest in the Lower Tier REMIC. It does not pay any interest or
principal.
(9) For each Distribution Date, the Class LTR-P Lower Tier REMIC Interest is
entitled to any Prepayment Charges paid on the Mortgage Loans.
On each Distribution Date, the Available Funds shall be distributed
with respect to the the Lower Tier REMIC Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each Lower Tier
REMIC Interest at the rates, or according to the formulas, described
above.
(2) Initial Allocations of Realized Losses and Principal.
(a) The Trustee shall first allocate the Realized Losses on the
Group 1 Mortgage Loans (including any reductions in
previously allocated Realized Losses on the Group 1 Mortgage
Loans attributable to any related Subsequent Recoveries), and
distribute the principal on the Group 1 Mortgage Loans
between the Class LTR-PO-1 Interest and the LTR-1 Tracking
Interests in the same manner that such amounts are allocated
to or distributed between (a) the Class PO-1 Certificates and
(b) the remaining Group 1 Senior Certificates and the Assumed
Balance of the Class Certificate Balance of each Class of
Subordinated Certificates related to the Group 1 Mortgage
Loans.
(b) The Trustee shall first allocate the Realized Losses on the
Group 2 Mortgage Loans (including any reductions in
previously allocated Realized Losses on the Group 2 Mortgage
Loans attributable to any related Subsequent Recoveries), and
distribute the principal on the Group 2 Mortgage Loans
between the Class LTR-PO-2 Interest and the LTR-2 Tracking
Interests in the same manner that such amounts are allocated
to or distributed between (a) the Class PO-2 Certificates and
(b) the remaining Group 2 Senior Certificates and the Assumed
Balance of the Class Certificate Balance of each Class of
Subordinated Certificates related to the Group 2 Mortgage
Loans.
(c) The Trustee shall first allocate the Realized Losses on the
Group 3 Mortgage Loans (including any reductions in
previously allocated Realized Losses on the Group 3 Mortgage
Loans attributable to any related Subsequent Recoveries), and
distribute the principal on the Group 3 Mortgage Loans to the
LTR-3 Tracking Interests as a group.
6
(d) The Trustee shall first allocate the Realized Losses on the
Group 4 Mortgage Loans (including any reductions in
previously allocated Realized Losses on the Group 4 Mortgage
Loans attributable to any related Subsequent Recoveries), and
distribute the principal on the Group 4 Mortgage Loans to the
LTR-4 Tracking Interests as a group.
(3) Subsequent Allocations. Amounts allocated to the Tracking Interests of
each Group in accordance with Paragraph 2, above, shall be further
allocated as described below.
(4) Principal, if no Cross-Over Situation Exists. If no Cross-Over Situation
exists with respect to any Class of Tracking Interests, Principal Amounts
allocated with respect to each Loan Group's Tracking Interests in
accordance with Paragraph 2, shall be further allocated: first to cause
the Loan Group's corresponding Class A and Class B Tracking Interests to
equal, respectively, 0.90% of the Subordinated Portion and 0.10% of the
Subordinated Portion; and second to the Loan Group's corresponding Class
C Tracking Interest;
(5) Principal, if a Cross-Over Situation Exists. If a Cross-Over Situation
exists with respect to the Class A and Class B Tracking Interests:
(a) If the Calculation Rate in respect of the outstanding Class A
and Class B Tracking Interests is less than the Subordinate
Pass-Through Rate, Principal Relocation Payments will be made
proportionately to the outstanding Class A Tracking Interests
prior to any other principal distributions from each such
Loan Group.
(b) If the Calculation Rate in respect of the outstanding Class A
and Class B Tracking Interests is greater than the
Subordinate Pass-Through Rate, Principal Relocation Payments
will be made proportionately to the outstanding Class B
Tracking Interests prior to any other principal distributions
from each such Loan Group.
In each case, Principal Relocation Payments will be made so as to cause
the Calculation Rate in respect of the outstanding Class A and Class B
Tracking Interests to equal the Subordinate Pass-Through Rate. With respect
to each Loan Group, if (and to the extent that) the sum of (a) the principal
payments received during the Due Period (as adjusted for amounts allocated to
the related Class PO Certificates) and (b) the Realized Losses (as adjusted
for amounts allocated to the related Class PO Certificates), are insufficient
to make the necessary reductions of principal on the Class A and Class B
Tracking Interests, then interest will be added to the Loan Group's Class C
Tracking Interest.
(c) Unless required to achieve the Calculation Rate, the
outstanding aggregate Class A and Class B Tracking Interests
for all Loan Groups will not be reduced below 1 percent of
the excess of (i) the aggregate outstanding Principal
Balances of all Loan Groups (as adjusted for amounts
allocated to the related Class PO Certificates) as of the end
of any Due Period (reduced by principal prepayments received
after the Due Period that are to to be distributed on the
Disribution Date related to the Due Period) over (ii) the
aggregate Class Certificate Balance of the Senior
Certificates for all Loan Groups as of the related
Distribution Date (after taking into account distributions of
principal on such Distribution Date).
If (and to the extent that) the limitation in paragraph (c) prevents
the distribution of principal to the Class A and Class B Tracking Interests
of a Loan Group, and if the Loan Group's Class C Tracking Interest has
already been reduced to zero, then the excess principal from that Loan Group
(as adjusted for amounts allocated to the related Class PO Certificates) will
be paid to the Class C Tracking Interests of
7
the other Loan Groups the aggregate Class A and Class B Tracking Interests of
which are less than one percent of the Subordinated Portion. If the Loan Group
corresponding to the Class C Tracking Interest that receives such payment has a
weighted average Adjusted Net Mortgage Rate below the weighted average Adjusted
Net Mortgage Rate of the Loan Group making the payment, then the payment will
be treated by the Lower Tier REMIC as a Realized Loss. Conversely, if the Loan
Group corresponding to the Class C Tracking Interest that receives such payment
has a weighted average Adjusted Net Mortgage Rate above the weighted average
Adjusted Net Mortgage Rate of the Loan Group making the payment, then the
payment will be treated by the Lower Tier REMIC as a reimbursement for prior
Realized Losses.
8
The following table specifies the class designation, interest rate, and
principal amount for each class of Middle Tier REMIC Interests:
-------------------------------------------------------------------------------
Middle Tier REMI Initial Interest Rate Corresponding Matter
Interest Principal Balance REMIC Certificate
-------------------------------------------------------------------------------
MTR-1-A-1 $116,500,000.00 6.50% 0-X-0
-------------------------------------------------------------------------------
XXX 0-X-0 $32,000,000.00 6.50% 1-A-2 and 1-A-3(1)
-------------------------------------------------------------------------------
MTR-1-A-4 $5,000,000.00 6.50% 0-X-0
-------------------------------------------------------------------------------
XXX-0-X-0 $48,630,000.00 6.50% 1-A-5
-------------------------------------------------------------------------------
MTR-1-A-6 $33,000,000.00 6.50% 1-A-6 and 1-A-7(2)
-------------------------------------------------------------------------------
Class 1-A-8 $16,683,000.00 6.50% Class 1-A-8
-------------------------------------------------------------------------------
MTR-1-X (3) (4) 1-X
-------------------------------------------------------------------------------
MTR-2-A-1 $100,024,000.00 7.00% 0-X-0
-------------------------------------------------------------------------------
XXX-0-X-0 $3,628,000.00 7.00% 2-A-2
-------------------------------------------------------------------------------
MTR-2-X (3) (5) 2-X
-------------------------------------------------------------------------------
MTR-3-A-1 $24,594,000.00 (6) 3-A-1
-------------------------------------------------------------------------------
MTR-4-A-1 $18,773,000.00 (7) 4-A-1
-------------------------------------------------------------------------------
MTR-1-$100 $100.00 6.50% A-R
-------------------------------------------------------------------------------
MTR-PO-1 (8) (9) PO-1
-------------------------------------------------------------------------------
XXX-XX-0 (00) (9) PO-2
-------------------------------------------------------------------------------
MTR-M $12,003,000.00 (11) M
-------------------------------------------------------------------------------
MTR-B-1 $5,144,000.00 (11) B-1
-------------------------------------------------------------------------------
MTR-B-2 $3,430,000.00 (11) B-2
-------------------------------------------------------------------------------
MTR-B-3 $3,001,000.00 (11) B-3
-------------------------------------------------------------------------------
MTR-B-4 $2,572,000.00 (11) B-4
-------------------------------------------------------------------------------
MTR-B-5 $1,715,111.00 (11) B-5
-------------------------------------------------------------------------------
MTR-P $100.00 (12) P
-------------------------------------------------------------------------------
MTR-A-R (13) (13) N/A
-------------------------------------------------------------------------------
9
(1) For each Distribution Date, the Class 1-A-3 Certificates are entitled to
a portion of the interest payable on the Class MTR-1-A-2 Middle Tier REMIC
Interest. Specifically, for each Distribution Date, the Class 1-A-3
Certificates are entitled to the interest payable on the Class MTR-1-A-2
Middle Tier REMIC Interest at a per annum rate equal to 6.00% minus LIBOR,
but not less than 0.00%.
(2) For each Distribution Date, the Class 1-A-7 Certificates are entitled to
a portion of the interest payable on the Class MTR-1-A-6 Middle Tier REMIC
Interest. Specifically, for each Distribution Date, the Class 1-A-7
Certificates are entitled to the interest payable on the Class MTR-1-A-6
Middle Tier REMIC Interest at a per annum rate equal to 5.90% minus LIBOR,
but not less than 0.00%.
(3) This Class of Middle Tier REMIC Interest pays no principal.
(4) For each Distribution Date, the Class MTR-1-X Middle Tier REMIC Interest
is entitled to all the interest payable with respect to the Class LTR-X-1
Lower Tier REMIC Interest.
(5) For each Distribution Date, the Class MTR-2-X Middle Tier REMIC Interest
is entitled to all the interest payable with respect to the Class LTR-X-2
Lower Tier REMIC Interest.
(6) For each Distribution Date, the Class MTR 3-A-1 Middle Tier REMIC
Interest will bear interest at a per annum rate equal to the weighted average
of the Adjusted Net Mortgage Rates of the Mortgage Loans in Loan Group 3,
weighted on the basis of the Stated Principal Balances thereof as of the Due
Date in the preceding calendar month (after giving effect to Principal
Prepayments received in the Prepayment Period related to such prior Due Date)
for the related Interest Accrual Period.
(7) For each Distribution Date, the Class MTR 4-A-1 Middle Tier REMIC
Interest will bear interest at a per annum rate equal to the weighted average
of the Adjusted Net Mortgage Rates of the Mortgage Loans in Loan Group 4,
weighted on the basis of the Stated Principal Balances thereof as of the Due
Date in the preceding calendar month (after giving effect to Principal
Prepayments received in the Prepayment Period related to such prior Due Date)
for the related Interest Accrual Period.
(8) For each Distribution Date, the Class MTR-PO-1 Middle Tier REMIC Interest
is entitled to all the principal payable with respect to the Class LTR-PO-1
Lower Tier REMIC Interest. (9) This Class of Middle Tier REMIC Interest pays
no interest.
(10) For each Distribution Date, the Class MTR-PO-2 Middle Tier REMIC
Interest is entitled to all the principal payable with respect to the Class
LTR-PO-2 Lower Tier REMIC Interest.
(11) The Subordinate Pass-Through Rate.
(12) For each Distribution Date, the Class MTR-P Middle Tier REMIC Interest
is entitled to 100% of all the amounts payable with respect to the Class
LTR-P Lower Tier REMIC Interest.
(13) The MT-A-R is the sole class of residual interest in the Middle Tier
REMIC. It pays no interest or principal.
On each Distribution Date, interest shall be payable on the Middle Tier
REMIC Interests according the formulas described above, and principal,
Realized Losses and Subsequent Recoveries shall be allocated among the Middle
Tier REMIC Interests in the same manner that such items are allocated among
their corresponding Certificate Classes.
10
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.
11
Set forth below are designations of Classes or Components of
Certificates and other defined terms to the categories used herein:
Accretion Directed Certificates........... None.
Accretion Directed Components............. None.
Accrual Certificates...................... None.
Accrual Components........................ None.
Book-Entry Certificates................... All Classes of Certificates other than the Physical Certificates.
COFI Certificates......................... None.
Combined Certificates..................... None.
Component Certificates.................... None.
Components................................ None.
Delay Certificates........................ All interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted Certificates............. The Residual Certificates and Private Certificates; and any
Certificate of a Class that ceases to satisfy the applicable rating
requirement under the Underwriter's Exemption.
Floating Rate Certificates................ Class 1-A-2 and Class 1-A-6 Certificates.
Group 1 Certificates...................... Group 1 Senior Certificates and the portions of the Subordinated
Certificates related to Loan Group 1.
Group 1 Senior Certificates............... Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4, Class 1-A-5,
Class 1-A-6, Class 1-A-7, Class 1-A-8, Class 1-X, Class PO-1 and
Class A-R Certificates.
Group 2 Certificates...................... Group 2 Senior Certificates and the portions of the Subordinated
Certificates related to Loan Group 2.
Group 2 Senior Certificates.................Class 2-A-1, Class 2-A-2, Class 2-X and Class PO-2 Certificates.
Group 3 Certificates...................... Group 3 Senior Certificates and the portions of the Subordinated
Certificates related to Loan Group 3.
Group 3 Senior Certificates.................Class 3-A-1 Certificates.
Group 4 Certificates...................... Group 4 Senior Certificates and the portions of the Subordinated
Certificates related to Loan Group 4.
Group 4 Senior Certificates.................Class 4-A-1 Certificates.
12
Inverse Floating Rate Certificates........ Class 1-A-3 and Class 1-A-7 Certificates.
LIBOR Certificates........................ The Floating Rate Certificates and the Inverse Floating Rate
Certificates.
Non-Delay Certificates.................... LIBOR Certificates.
Notional Amount Certificates.............. Class 1-A-3, Class 1-A-7, Class 1-X and Class 2-X Certificates.
Notional Amount Components................ None.
Offered Certificates...................... All Classes of Certificates other than the Private Certificates.
Physical Certificates..................... Private Certificates and the Residual Certificates.
Planned Principal Classes................. None.
Principal Only Certificates
or Class PO Certificates.................. Class PO-1 and Class PO-2 Certificates.
Private Certificates...................... Class P, Class B-3, Class B-4 and Class B-5 Certificates.
Rating Agencies........................... S&P and Xxxxx'x.
Regular Certificates...................... All Classes of Certificates, other than the Residual Certificates.
Residual Certificates..................... Class A-R Certificates.
Scheduled Principal Classes............... None.
Senior Certificate Group....................The Group 1 Senior Certificates, the Group 2 Senior Certificates, the
Group 3 Senior Certificates or the Group 4 Senior Certificates, as
applicable.
Senior Certificates....................... The Group 1 Senior Certificates, the Group 2 Senior Certificates, the
Group 3 Senior Certificates and the Group 4 Senior Certificates.
Subordinated Certificates................. Class M, Class B-1, Class B-2, Class B-3, Class B-4 and Class B-5
Certificates.
Targeted Principal Classes................ None.
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 herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined
terms and provisions herein relating to statistical rating agencies not
designated above as Rating Agencies shall be of no force or effect.
13
If the aggregate Stated Principal Balance of the Initial Mortgage
Loans in Loan Group 1, Loan Group 2, Loan Group 3 and Loan Group 4 on the
Closing Date is equal to or greater than the aggregate Class Certificate
Balance of the Group 1 Certificates, Group 2 Certificates, Group 3
Certificates and Group 4 Certificates, as of such date, all references herein
to "Aggregate Supplemental Purchase Amount", "Aggregate Supplemental Transfer
Amount", "Capitalized Interest Account", "Capitalized Interest Requirement",
"Funding Period", "Funding Period Distribution Date", "Remaining Pre-funded
Amount", "Remaining Non-PO Pre-funded Amount", "Remaining PO Pre-funded
Amount", "Pre-funded Amount", "Supplemental Cut-off Date", "Pre-funding
Account", "Supplemental Mortgage Loan", "Supplemental Transfer Agreement" and
"Supplemental Transfer Date" with respect to each Loan Group, as applicable,
shall be of no force or effect and all provisions herein related thereto
shall similarly be of no force or effect.
14
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Account: The Escrow Account, the Certificate Account, the
Distribution Account, the Pre-funding Account, the Capitalized Interest
Account, the Corridor Contract Reserve Fund, the Principal Reserve Fund or
any other account related to the Trust Fund or the Mortgage Loans.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: With respect to any Class of Accrual
Certificates or any Accrual Component and any Distribution Date prior to the
related Accrual Termination Date, the amount allocable to interest on such
Class of Accrual Certificates or Accrual Component with respect to such
Distribution Date pursuant to Section 4.02(a).
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any
time, the per annum rate equal to the Mortgage Rate less the Master Servicing
Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any
time, the per annum rate equal to the Mortgage Rate less the sum of the
Trustee Fee Rate and the Master Servicing Fee Rate. For purposes of
determining whether any Substitute Mortgage Loan in Loan Group 1 or Loan
Group 2 is a Discount Mortgage Loan or a Non-Discount Mortgage Loan and for
purposes of calculating the applicable PO Percentage and the applicable
Non-PO Percentage, each Substitute Mortgage Loan shall be deemed to have an
Adjusted Net Mortgage Rate equal to the Adjusted Net Mortgage Rate of the
Deleted Mortgage Loan for which it is substituted.
Advance: As to a Loan Group, the payment required to be made by
the Master Servicer with respect to any Distribution Date pursuant to Section
4.01, the amount of any such payment being equal to the aggregate of payments
of principal and interest on the Mortgage Loans in such Loan Group that were
due on the related Due Date and not received by the Master Servicer as of the
close of business on the related Determination Date, together with an amount
equivalent to interest on each Mortgage Loan as to which the related
Mortgaged Property is an REO Property (net of any net income from such REO
Property), less the aggregate amount of any such delinquent payments that the
Master Servicer has determined would constitute a Nonrecoverable Advance, if
advanced.
Aggregate Planned Balance: With respect to any group of Planned
Principal Classes or Components and any Distribution Date, the amount set
forth for such group for such Distribution Date in Schedule V hereto.
I-1
Aggregate Supplemental Purchase Amount: With respect to any
Supplemental Transfer Date and Loan Group, the applicable "Aggregate
Supplemental Purchase Amount" identified in the related Supplemental Transfer
Agreement for such Loan Group, which shall be an estimate of the aggregate
Stated Principal Balances of the Supplemental Mortgage Loans to be included
in such Loan Group identified in such Supplemental Transfer Agreement.
Aggregate Supplemental Transfer Amount: With respect to any
Supplemental Transfer Date and Loan Group, the aggregate Stated Principal
Balance as of the related Supplemental Cut-off Date of the Supplemental
Mortgage Loans to be included in such Loan Group conveyed on such
Supplemental Transfer Date, as listed on the revised Mortgage Loan Schedule
delivered pursuant to Section 2.01(f); provided, however, that such amount
shall not exceed the amount on deposit in the Pre-funding Account allocated
to purchasing Supplemental Mortgage Loans for such Loan Group.
Aggregate Targeted Balance: With respect to any group of
Targeted Principal Classes or Components and any Distribution Date, the
amount set forth for such group for such Distribution Date in Schedule V
hereto.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Allocable Share: As to any Distribution Date and any Mortgage
Loan in Loan Group 1 or Loan Group 2 (i) with respect to the Class PO
Certificates, zero, (ii) with respect to the Class 1-X and Class 2-X
Certificates, (a) the ratio that the excess, if any, of the Adjusted Net
Mortgage Rate with respect to such Mortgage Loan, over the related Required
Coupon bears to such Adjusted Net Mortgage Rate or (b) if the Adjusted Net
Mortgage Rate with respect to such Mortgage Loan does not exceed the related
Required Coupon, zero and (iii) with respect to each other Class of
Certificates the product of (a) the lesser of (I) the ratio that the related
Required Coupon bears to the Adjusted Net Mortgage Rate of such Mortgage Loan
and (II) one, multiplied by (b) the ratio that the amount calculated with
respect to such Distribution Date (A) with respect to the Senior Certificates
of the related Senior Certificate Group, pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving
effect to any reduction of such amount pursuant to Section 4.02(d)) and (B)
with respect to the Subordinated Certificates, pursuant to the definition of
Assumed Interest Amount or after the third Senior Termination Date pursuant
to clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
4.02(d)) bears to the amount calculated with respect to such Distribution
Date for each Class of Certificates pursuant to clause (i) of the definition
of Class Optimal Interest Distribution Amount (without giving effect to any
reduction of such amount pursuant to Section 4.02(d)) or the definition of
Assumed Interest Amount, as applicable. As to any Distribution Date, any
Mortgage Loan in Loan Group 3 and Loan Group 4 and any Class of Certificates,
the ratio that the amount calculated with respect to such Distribution Date
(A) with respect to the Senior Certificates of the related Senior Certificate
Group, pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (without giving effect to any reduction of such amount
pursuant to Section 4.02(d)) and (B) with respect to the Subordinated
Certificates, pursuant to the definition of Assumed Interest Amount for such
Class or after the third Senior Termination Date, pursuant to clause (i) of
the definition of Class Optimal Interest Distribution Amount (without giving
effect to any reduction of such amounts pursuant to Section 4.02(d)) bears to
the aggregate amount calculated with respect to such Distribution Date for
each such Class of Certificates pursuant to clause (i) of the definition of
Class Optimal Interest Distribution Amount (without giving effect to any
reduction of such amount pursuant to Section 4.02(d)) or the definition of
Assumed Interest Amount for such Loan Group and Class, as applicable).
I-2
Amount Available for Senior Principal: As to any Distribution
Date and any Loan Group, Available Funds for such Distribution Date and Loan
Group, reduced by the aggregate amount distributable (or allocable to a
related Accrual Amount, if applicable) on such Distribution Date in respect
of interest on the related Senior Certificates pursuant to Section 4.02(a).
Amount Held for Future Distribution: As to any Distribution Date
and Mortgage Loans in a Loan Group, the aggregate amount held in the
Certificate Account at the close of business on the related Determination
Date on account of (i) Principal Prepayments received after the related
Prepayment Period and Liquidation Proceeds and Subsequent Recoveries received
in the month of such Distribution Date relating to such Loan Group and (ii)
all Scheduled Payments due after the related Due Date relating to such Loan
Group.
Applicable Credit Support Percentage: As defined in Section
4.02(e).
Appraised Value: With respect to any Mortgage Loan, the
Appraised Value of the related Mortgaged Property shall be: (i) with respect
to a Mortgage Loan other than a Refinancing Mortgage Loan, the lesser of (a)
the value of the Mortgaged Property based upon the appraisal made at the time
of the origination of such Mortgage Loan and (b) the sale price of the
Mortgaged Property at the time of the origination of such Mortgage Loan; (ii)
with respect to a Refinancing Mortgage Loan other than a Streamlined
Documentation Mortgage Loan, the value of the Mortgaged Property based upon
the appraisal made-at the time of the origination of such Refinancing
Mortgage Loan; and (iii) with respect to a Streamlined Documentation Mortgage
Loan, (a) if the loan-to-value ratio with respect to the Original Mortgage
Loan at the time of the origination thereof was 80% or less and the loan
amount of the new mortgage loan is $650,000 or less, the value of the
Mortgaged Property based upon the appraisal made at the time of the
origination of the Original Mortgage Loan and (b) if the loan-to-value ratio
with respect to the Original Mortgage Loan at the time of the origination
thereof was greater than 80% or the loan amount of the new loan being
originated is greater than $650,000, the value of the Mortgaged Property
based upon the appraisal (which may be a drive-by appraisal) made at the time
of the origination of such Streamlined Documentation Mortgage Loan.
Assumed Balance: For a Distribution Date and (i) for Loan Group 1
and Loan Group 2, an amount equal to the Subordinated Percentage for that
Distribution Date relating to that Loan Group of the aggregate of the
applicable Non-PO Percentage of the Stated Principal Balance of each Mortgage
Loan in such Loan Group as of the Due Date occurring in the month prior to
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the Prepayment Period related to such Due Date) and
(ii) for Loan 3 and Loan Group 4, an amount equal to the Subordinated
Percentage for that Distribution Date relating to that Loan Group of the
aggregate of the Stated Principal Balance of each Mortgage Loan in such Loan
Group as of the Due Date occurring in the month prior to the month of that
Distribution Date (after giving effect to Principal Prepayments received in
the Prepayment Period related to such Due Date).
Assumed Interest Amount: With respect to any Distribution Date
and each Class of Subordinated Certificates, one month's interest accrued
during the related Interest Accrual Period at the Pass-Through Rate for such
Class on the applicable Subordinated Portion immediately prior to that
Distribution Date.
Available Funds: As to any Distribution Date and the Mortgage
Loans in a Loan Group, the sum of (a) the aggregate amount held in the
Certificate Account at the close of business on the related Determination
Date, including any Subsequent Recoveries, in respect of such Mortgage Loans,
net of the related Amount Held for Future Distribution, net of the Prepayment
Charges received and net of amounts permitted to be withdrawn from the
Certificate Account pursuant to clauses (i) - (viii), inclusive, of
I-3
Section 3.08(a) in respect of such Mortgage Loans and amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i) - (v),
inclusive, of Section 3.08(b) in respect of such Mortgage Loans, (b) the amount
of the related Advance, (c) in connection with Defective Mortgage Loans in such
Loan Group, as applicable, the aggregate of the Purchase Prices and
Substitution Adjustment Amounts deposited on the related Distribution Account
Deposit Date, (d) with respect to each Loan Group, on each Funding Period
Distribution Date, the amount, if any, transferred from the Capitalized
Interest Account in respect of the applicable Capitalized Interest Requirement
with respect to such Loan Group, and (e) (i) with respect to Loan Group 1 and
Loan Group 2, on the last Funding Period Distribution Date, the amount, if any,
transferred from the Pre-funding Account representing the applicable Remaining
Non-PO Pre-funded Amount and the applicable Remaining PO Pre-funded Amount, if
any and (ii) with respect to Loan Group 3 and Loan Group 4 on the last Funding
Period Distribution Date, the amount, if any, transferred from the Pre-funding
Account representing the applicable Remaining Pre-funded Amount, if any;
provided, however, that on the third Senior Termination Date, Available Funds
with respect to the Loan Group relating to the remaining Senior Certificate
Group shall include the Available Funds from the other Loan Groups after all
distributions are made on the Senior Certificates of the other Senior
Certificate Group or Groups and on any Distribution Date thereafter, Available
Funds shall be calculated based upon all the Mortgage Loans in the Mortgage
Pool, as opposed to the Mortgage Loans in the related Loan Group. The Holders
of the Class P Certificates will be entitled to all Prepayment Charges received
on the Mortgage Loans and such amounts will not be available for distribution
to the Holders of any other Class of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of
1978, as amended.
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.
Calculation Rate: For each Distribution Date, the product of (i)
10 and (ii) the weighted average rate of the outstanding Class A and Class B
Interests, treating each Class A Interest as having an interest rate of 0.00%
per annum.
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 Requirement: With respect to each Funding
Period Distribution Date and each Loan Group, the excess, if any, of (a) the
sum of (1) the amount calculated pursuant to clause (i) of the definition of
Class Optimal Interest Distribution Amount for each Class of related
Certificates in the Certificate Group related to such Loan Group for such
Distribution Date, plus (2) the Trustee Fee, over (b) with respect to each
Mortgage Loan in related Loan Group, (1) 1/12 of the product of the related
Adjusted Mortgage Rate and the related Stated Principal Balance as of the
related Due Date (prior to giving effect to any Scheduled Payment due on such
Mortgage Loan on such Due Date) minus (2) any related reductions required by
Section 4.02(d) hereof. On the Closing Date, the amount deposited in the
Capitalized Interest Account shall be $159,491.13.
I-4
Ceiling Rate: With respect to each Class of Covered
Certificates, the percentages set forth below.
----------------------------------------------
Class of Certificates Ceiling Rate
--------------------- ------------
----------------------------------------------
Class 1-A-2 Certificates 9.00%
----------------------------------------------
Class 1-A-6 Certificates 8.90%
----------------------------------------------
Certificate: Any one of the Certificates executed by the Trustee
in substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account or Accounts
created and maintained by the Master Servicer pursuant to Section 3.05 with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "Countrywide Home
Loans Servicing LP, in trust for the registered holders of Alternative Loan
Trust 2006-J5, Mortgage Pass-Through Certificates, Series 2006-J5."
Certificate Balance: With respect to any Certificate at any date
(other than the Notional Amount Certificates), the maximum dollar amount of
principal to which the Holder thereof is then entitled hereunder, such amount
being equal to the Denomination thereof (A) plus any increase in the
Certificate Balance of each Certificate pursuant to Section 4.02 due to the
receipt of Subsequent Recoveries, (B) minus the sum of (i) all distributions
of principal previously made with respect thereto and (ii) all Realized
Losses allocated thereto and, in the case of the Subordinated Certificates,
all other reductions in Certificate Balance previously allocated thereto
pursuant to Section 4.04 and (C) in the case of any Class of Accrual
Certificates, increased by the Accrual Amount added to the Class Certificate
Balance of such Class prior to such date. The Notional Amount Certificates
have no Certificate Balances.
Certificate Group: The Group 1 Certificates, the Group 2
Certificates, the Group 3 Certificates or the Group 4 Certificates, as the
context requires.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate. For the
purposes of this Agreement, in order for a Certificate Owner to enforce any
of its rights hereunder, it shall first have to provide evidence of its
beneficial ownership interest in a Certificate that is reasonably
satisfactory to the Trustee, the Depositor, and/or the Master Servicer, as
applicable.
Certificate Register: The register maintained pursuant to
Section 5.02 hereof.
Certificateholder or Holder: The person in whose name a
Certificate is registered in the Certificate Register, except that, solely
for the purpose of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor or any affiliate of the
Depositor shall be deemed not to be Outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests necessary to effect such consent has
been obtained; provided, however, that if any such Person (including the
Depositor) owns 100% of the Percentage Interests evidenced by a Class of
Certificates, such Certificates shall be deemed to be Outstanding for
purposes of any provision hereof (other than the second sentence of Section
10.01 hereof) that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor
or
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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 1-A-2 Corridor Contract: With respect to the Class 1-A-2
Certificates, the transaction evidenced by the related Confirmation, a form
of which is attached hereto as Exhibit R.
Class 1-A-6 Corridor Contract: With respect to the Class 1-A-6
Certificates, the transaction evidenced by the related Confirmation, a form
of which is attached hereto as Exhibit R.
Class Certificate Balance: With respect to any Class and as to
any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class,
the amount by which the amount described in clause (i) of the definition of
Class Optimal Interest Distribution Amount for such Class exceeds the amount
of interest actually distributed on such Class on such Distribution Date
pursuant to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any
interest-bearing Component, the sum of (i) one month's interest accrued
during the related Interest Accrual Period at the Pass-Through Rate for such
Class on the related Class Certificate Balance, Component Balance, Notional
Amount or Component Notional Amount, as applicable, immediately prior to such
Distribution Date, subject to reduction as provided in Section 4.02(d) and
(ii) any Class Unpaid Interest Amounts for such Class or Component.
Class PO Certificates: Collectively, the Class PO-1 and Class
PO-2 Certificates.
Class P Principal Distribution Date: The first Distribution Date
that occurs after the end of the latest Prepayment Charge period for all
Mortgage Loans that have a Prepayment Charge.
Class PO Component: Not applicable.
Class PO Deferred Amount: As to any Distribution Date and Loan
Group 1 and Loan Group 2, the aggregate of the applicable PO Percentage of
each Realized Loss on a Discount Mortgage Loan in that Loan Group to be
allocated to the related Class PO Certificates on such Distribution Date on
or prior to the related Senior Credit Support Depletion Date or previously
allocated to such Class PO Certificates and not yet paid to the Holders of
the Class PO Certificates.
Class Subordination Percentage: With respect to any Distribution
Date and each Class of Subordinated Certificates, the quotient (expressed as
a percentage) of (a) the Class Certificate Balance of such Class of
Subordinated Certificates immediately prior to such Distribution Date divided
by (b) the aggregate of the Class Certificate Balances immediately prior to
such Distribution Date of all Classes of Certificates.
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Class Unpaid Interest Amounts: As to any Distribution Date and
Class of interest bearing Certificates, the amount by which the aggregate
Class Interest Shortfalls for such Class on prior Distribution Dates exceeds
the amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
Closing Date: July 28, 2006.
Code: The Internal Revenue Code of 1986, including any successor
or amendatory provisions.
COFI: The Monthly Weighted Average Cost of Funds Index for the
Eleventh District Savings Institutions published by the Federal Home Loan
Bank of San Francisco.
COFI Certificates: As specified in the Preliminary Statement.
Commission: The U.S. Securities and Exchange Commission.
Combined Certificates: As specified in the Preliminary Statement.
Combined Certificates Payment Rule: Not applicable.
Compensating Interest: As to any Distribution Date and Loan
Group an amount equal to the product of one-twelfth of 0.125% and the
aggregate Stated Principal Balance of the Mortgage Loans in such Loan Group
as of the Due Date in the prior calendar month.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any
Distribution Date, the Initial Component Balance thereof on the Closing Date,
(A) plus any increase in the Component Balance of such Component pursuant to
Section 4.02 due to the receipt of Subsequent Recoveries, (B) minus the sum
of all amounts applied in reduction of the principal balance of such
Component and Realized Losses allocated thereto on previous Distribution
Dates.
Component Certificates: As specified in the Preliminary
Statement.
Component Notional Amount: Not applicable.
Confirmation: With respect to the Class 1-A-2 Certificates, the
Confirmation (reference FXNEC8527), dated July 27, 2006, evidencing a
transaction between Bear Xxxxxxx Financial Products, Inc. and Countrywide
Home Loans, Inc. With respect to the Class 1-A-6 Certificates, the
Confirmation (reference FXNEC8553), dated July 27, 2006, evidencing a
transaction between Bear Xxxxxxx Financial Products, Inc. and Countrywide
Home Loans, Inc.
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.
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Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a
Cooperative Property.
Corporate Trust Office: The designated office of the Trustee in
the State of New York at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office
at the date of the execution of this Agreement is located at 000 Xxxxxxx
Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000 (Attn: Mortgage-Backed Securities
Group, CWALT, Inc. Series 2006-J5), facsimile no. (000) 000-0000, and which
is the address to which notices to and correspondence with the Trustee should
be directed.
Corridor Contract: The Class 1-A-2 Corridor Contract or the
Class 1-A-6 Corridor Contract, as applicable.
Corridor Contract Assignment Agreement: The agreement, dated as
of the Closing Date, among Countrywide Home Loans, Inc., the Supplemental
Interest Trustee and the Corridor Contract Counterparty, a form of which is
attached hereto as Exhibit S-1.
Corridor Contract Counterparty: Bear Xxxxxxx Financial Products
Inc.
Corridor Contract Reserve Fund: The separate fund created and
initially maintained by the Supplemental Interest Trustee pursuant to Section
3.05(i) in the name of the Supplemental Interest Trustee for the benefit of
the Holders of the Covered Certificates and designated "The Bank of New York
in trust for registered holders of CWALT, Inc., Alternative Loan Trust
2006-J5, Mortgage Pass-Through Certificates, Series 2006-J5." Funds in the
Corridor Contract Reserve Fund shall be held in trust for the Holders of the
Covered Certificates for the uses and purposes set forth in this Agreement.
For all federal income tax purposes, the Corridor Contract Reserve Fund will
be beneficially owned by the Underwriter.
Corridor Contract Scheduled Termination Date: For the Class
1-A-2 and Class 1-A-6 Certificates, the Distribution Date in June 2010.
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.
Covered Certificates: The Class 1-A-2 and Class 1-A-6
Certificates.
Cross-Over Situation: For any Distribution Date and for each
Loan Group (after taking into account principal distributions on such
Distribution Date) with respect to the Class A and Class B Lower Tier REMIC
Interests, a situation in which the Class A and Class B Interests
corresponding to any Loan Group are in the aggregate less than 1% of the
Subordinated Portion of the Loan Group to which they correspond.
Cut-off Date: In the case of any Initial Mortgage Loan, the
Initial Cut-off Date, and in the case of any Supplemental Mortgage Loan, the
related Supplemental Cut-off Date.
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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 which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of
principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in
an amount less than the then-outstanding indebtedness under the Mortgage
Loan, or any reduction in the amount of principal to be paid in connection
with any Scheduled Payment that results in a permanent forgiveness of
principal, which valuation or reduction results from an order of such court
which is final and non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: As defined in Section 2.02(a)
hereof.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all
or a portion of a related Mortgage File is not delivered to the Trustee on
the Closing Date or Supplemental Transfer Date, as applicable. The number of
Delay Delivery Mortgage Loans shall not exceed 50% of the aggregate number of
Initial Mortgage Loans in each Loan Group as of the Closing Date and 90% of
the Supplemental Mortgage Loans in each Loan Group conveyed on the related
Supplemental Transfer Date. To the extent that Countrywide Home Loans
Servicing LP shall be in possession of any Mortgage Files with respect to any
Delay Delivery Mortgage Loan, until delivery of such Mortgage File to the
Trustee as provided in Section 2.01, Countrywide Home Loans Servicing LP
shall hold such files as Master Servicer hereunder, as agent and in trust for
the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c) hereof.
Denomination: With respect to each Certificate, the amount set
forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if
neither of the foregoing, the Percentage Interest appearing on the face
thereof.
Depositor: CWALT, Inc., a Delaware corporation, or its successor
in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The 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.
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Depository Participant: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: As to any Distribution Date, the 22nd day of
each month or if such 22nd day is not a Business Day the next preceding
Business Day; provided, however, that if such 22nd day or such Business Day,
whichever is applicable, is less than two Business Days prior to the related
Distribution Date, the Determination Date shall be the first Business Day
which is two Business Days preceding such Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan in Loan Group 1 or
Loan Group 2 with an Adjusted Net Mortgage Rate that is less than the
Required Coupon for that Loan Group.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New
York in trust for registered holders of Alternative Loan Trust 2006-J5,
Mortgage Pass-Through Certificates, Series 2006-J5." Funds in the
Distribution Account shall be held in trust for the Certificateholders for
the uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date,
12:30 p.m. Pacific time on the Business Day immediately preceding such
Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business
Day, the next succeeding Business Day, commencing in August, 2006.
Due Date: With respect to any Distribution Date, the related Due
Date is the first day of the month in which that 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 is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of Xxxxx'x or Fitch and one of the two highest
short-term ratings of S&P, if S&P is a Rating Agency, at the time any amounts
are held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC
(to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or
a perfected first priority security interest against any collateral (which
shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii) a
trust account or accounts maintained with (a) the trust department of a
federal or state chartered depository institution or (b) a trust company,
acting in its fiduciary capacity or (iv) any other account acceptable to each
Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Trustee.
Eligible Repurchase Month: As defined in Section 3.11 hereof.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
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ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a) hereof.
Event of Default: As defined in Section 7.01 hereof.
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.
Expense Rate: As to each Mortgage Loan, the sum of the Master
Servicing Fee Rate and the Trustee Fee Rate.
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 thereto.
Final Certification: As defined in Section 2.02(a) hereof.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group, or such other address as Fitch may hereafter
furnish to the Depositor and the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
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Form 10-D Disclosure Item: With respect to any Person, any
material litigation or governmental proceedings pending against such Person,
or against any of the Trust Fund, the Depositor, the Trustee, the 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: The period from the Closing Date until the
earliest of (i) the date on which the amount on deposit in the Pre-funding
Account is less than $150,000, (ii) an Event of Default occurs and (iii)
August 31 , 2006.
Funding Period Distribution Date: Each Distribution Date during
the Funding Period and, if the Funding Period ends after the Distribution
Date in a month, the immediately succeeding Distribution Date.
Group 1 and Group 2 Senior Principal Distribution Amount: As to
any Distribution Date and the Group 1 Senior Certificates and the Group 2
Senior Certificates, the sum of (i) the sum of the related Senior Percentage
of the applicable Non-PO Percentage of all amounts described in subclauses
(a) through (d) of clause (i) of the definition of "Non-PO Formula Principal
Amount" with respect to the related Loan Group for such Distribution Date,
(ii) with respect to any Mortgage Loan in the related Loan Group that became
a Liquidated Mortgage Loan during the calendar month preceding the month of
such Distribution Date, the lesser of (x) the related Senior Percentage of
the applicable Non-PO Percentage of the Stated Principal Balance of such
Mortgage Loan and (y) the related Senior Prepayment Percentage of the
applicable Non-PO Percentage of the amount of the Liquidation Proceeds
allocable to principal received with respect to the Mortgage Loan and (iii)
the sum of (x) the related Senior Prepayment Percentage of the applicable
Non-PO Percentage of the amounts described in subclause (f) of clause (i) of
the definition of "Non-PO Formula Principal Amount" with respect to the
related Loan Group for such Distribution Date plus (y) on the last Funding
Period Distribution Date, the amount, if any, of the Remaining Non-PO
Pre-funded Amount with respect to that Loan Group plus (z) the related Senior
Prepayment Percentage of any Subsequent Recoveries described in clause (ii)
of the definition of "Non-PO Formula Principal Amount" for such Distribution
Date ; provided, however, on any Distribution Date after the third Senior
Termination Date, if either of the Group 1 Senior Certificates or Group 2
Senior Certificates are remaining, the Senior Principal Distribution Amount
for the remaining Senior Certificate Group will be calculated pursuant to the
above formula based on all the Mortgage Loans in the Mortgage Pool, as
opposed to the Mortgage Loans in the related Loan Group and, if such
Distribution Date is the third Senior Termination Date, shall be reduced by
the amount of the principal distribution made pursuant to (a) if the Group 1
Senior Certificates are reduced to zero on such date, Section
4.02(a)(1)(iv)(y), (b) if the Group 2 Senior Certificates are reduced to zero
on such date, Section 4.02(a)(2)(iv)(y), (c) if the Group 3 Senior
Certificates are reduced to zero on such date, Section 4.02(a)(3)(iv)(y) or
(d) if the Group 4 Senior Certificates are reduced to zero on such date,
Section 4.02(a)(4)(iv)(y).
Group 1 and Group 2 Subordinated Principal Distribution Amount:
With respect to any Distribution Date and Loan Group 1 and Loan Group 2, an
amount equal to the excess of (A) the sum, not less than zero, of (i) the
Subordinated Percentage of the applicable Non-PO Percentage for such Loan
Group of all amounts described in subclauses (a) through (d) of clause (i) of
the definition of "Non-PO Formula Principal Amount" for such Distribution
Date, (ii) with respect to each Mortgage Loan that became a Liquidated
Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the applicable Non-PO Percentage of the amount of the
Liquidation Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (ii) of the definition
of Group 1 and Group 2 Senior Principal Distribution Amount, up to the
Subordinated Percentage for such
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Loan Group of the applicable Non-PO Percentage of the Stated Principal Balance
of such Mortgage Loan, (iii) the Subordinated Prepayment Percentage of the
applicable Non-PO Percentage of all amounts described in subclause (f) of
clause (i) of the definition of "Non-PO Formula Principal Amount" for such Loan
Group and Distribution Date, and (iv) the related Subordinated Prepayment
Percentage of any Subsequent Recoveries described in clause (ii) of the
definition of "Non-PO Formula Principal Amount" for such Distribution Date,
over (B) the amount of any payments in respect of Class PO Deferred Amounts for
the related Class PO Certificates on the related Distribution Date, , provided,
however, that on any Distribution Date after the third Senior Termination Date,
the Subordinated Principal Distribution Amount will not be calculated by Loan
Group but will equal the amount calculated pursuant to the formula set forth
above based on the applicable Subordinated Percentage or Subordinated
Prepayment Percentage, as applicable, for the Subordinated Certificates for
such Distribution Date with respect to all of the Mortgage Loans as opposed to
the Mortgage Loans in the related Loan Group.
Group 3 and Group 4 Senior Principal Distribution Amount: As to
any Distribution Date and the Group 3 Senior Certificates and the Group 4
Senior Certificates, the sum of (i) the related Senior Percentage of all
amounts described in clauses (a) through (d) of the definition of "Principal
Amount" with respect to the related Loan Group for such Distribution Date,
(ii) with respect to any Mortgage Loan in the related Loan Group that became
a Liquidated Mortgage Loan during the calendar month preceding the month of
such Distribution Date, the lesser of (x) the related Senior Percentage of
the Stated Principal Balance of such Mortgage Loan as of the Due Date
occurring in the month preceding the month of the Distribution Date (after
giving effect to Principal Prepayments in the Prepayment Period related to
that prior Due Date) and (y) the related Senior Prepayment Percentage of the
amount of the Liquidation Proceeds allocable to principal received on such
Mortgage Loan, (iii) the sum of the related Senior Prepayment Percentage of
the amounts described in clauses (f) and (g) of the definition of "Principal
Amount" with respect to the related Loan Group for such Distribution Date and
(iv) with respect to the last Funding Period Distribution Date, the Remaining
Pre-funded Amount for the related Loan Group; provided, however, that on any
Distribution Date after the third Senior Termination Date, if either of the
Group 3 Senior Certificates or Group 4 Senior Certificates are remaining, the
Senior Principal Distribution Amount for the remaining Senior Certificate
Group will be calculated pursuant to the above formula based upon all the
Mortgage Loans in the Mortgage Pool, as opposed to the Mortgage Loans in the
related Loan Group and, if such Distribution Date is the third Senior
Termination Date, shall be reduced by the amount of the principal
distribution made pursuant to (a) if the Group 1 Senior Certificates are
reduced to zero on such date, Section 4.02(a)(1)(iv)(y), (b) if the Group 2
Senior Certificates are reduced to zero on such date, Section
4.02(a)(2)(iv)(y), (c) if the Group 3 Senior Certificates are reduced to zero
on such date, Section 4.02(a)(3)(iv)(y) or (d) if the Group 4 Senior
Certificates are reduced to zero on such date, Section 4.02(a)(4)(iv)(y).
Group 3 and Group 4 Subordinated Principal Distribution Amount:
With respect to any Distribution Date and Loan Group 3 and Loan Group 4, an
amount equal to the excess of (A) the sum, not less than zero, of the sum of
(i) the Subordinated Percentage of all amounts described in clauses (a)
through (d) of the definition of "Principal Amount" for that Loan Group and
that Distribution Date, (ii) with respect to each Mortgage Loan in that Loan
Group that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the Liquidation Proceeds
allocable to principal received with respect thereto remaining after
application thereof pursuant to clause (ii) of the definition of "Group 3 and
Group 4 Senior Principal Distribution Amount", up to the Subordinated
Percentage for such Loan Group of the Stated Principal Balance of that
Mortgage Loan as of the Due Date occurring in the month preceding the month
of the Distribution Date, and (iii) the Subordinated Prepayment Percentage
for that Loan Group of all amounts described in clauses (f) and (g) of the
definition of "Principal Amount" for such Loan Group and Distribution Date
over (B) the amount of any payments from such Loan Group in respect of Class
PO Deferred Amounts on the related Distribution Date; provided, however, that
on any Distribution Date after the third Senior Termination
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Date, the Subordinated Principal Distribution Amount will not be calculated by
Loan Group but will equal the amount calculated pursuant to the formula set
forth above based on the related Subordinated Percentage and Subordinated
Prepayment Percentage for the Subordinated Certificates for such Distribution
Date with respect to all of the Mortgage Loans as opposed to the Mortgage Loans
only in the related Loan Group.
Group 1 Senior Certificates: As specified in the Preliminary
Statement.
Group 2 Senior Certificates: As specified in the Preliminary
Statement.
Group 3 Senior Certificates: As specified in the Preliminary
Statement.
Group 4 Senior Certificates: As specified in the Preliminary
Statement.
Index: With respect to any Interest Accrual Period for the COFI
Certificates, if any, the then-applicable index used by the Trustee pursuant
to Section 4.07 to determine the applicable Pass-Through Rate for such
Interest Accrual Period for the COFI Certificates.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Certification: As defined in Section 2.02(a) hereof.
Initial Component Balance: As specified in the Preliminary
Statement.
Initial Cut-off Date: With respect to any Initial Mortgage Loan,
the later of (i) the date of origination of such Mortgage Loan and (ii) July
1, 2006.
Initial Cut-off Date Pool Principal Balance: $399,549,363.34.
Initial Mortgage Loan: With respect to any Mortgage Loan
included in each Loan Group, 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 Lower Tier 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
Lower Tier REMIC Regular Interest and any Distribution Date, the one month
period commencing on the 25th day of the month preceding the month in which
such Distribution Date occurs and ending on the 24th day of the month in
which such Distribution Date occurs.
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Interest Determination Date: With respect to (a) any Interest
Accrual Period for any LIBOR Certificates and (b) any Interest Accrual Period
for the COFI Certificates for which the applicable Index is LIBOR, the second
Business Day prior to the first day of such Interest Accrual Period.
Item 1119 Party: The Depositor, any Seller, the Master Servicer,
the Trustee, any Subservicer, any originator identified in the Prospectus
Supplement 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 borrower) acquires the Primary Insurance Policy and
charges the related borrower an interest premium.
LIBOR: The London interbank offered rate for one-month United
States dollar deposits calculated in the manner described in Section 4.08.
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)).
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a defaulted Mortgage Loan (including any REO Property) which was liquidated
in the calendar month preceding the month of such Distribution Date and as to
which the Master Servicer has determined (in accordance with this Agreement)
that it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of an REO
Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property and any other proceeds received in connection with an
REO Property, less the sum of related unreimbursed Master Servicing Fees,
Servicing Advances and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3 or
Loan Group 4, as applicable.
Loan Group 1: All Mortgage Loans identified as Loan Group 1
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Loan Group 2
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 3: All Mortgage Loans identified as Loan Group 1
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 4: All Mortgage Loans identified as Loan Group 1
Mortgage Loans on the Mortgage Loan Schedule.
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Loan Group Principal Balance: As to any Distribution Date and
Loan Group, the aggregate Stated Principal Balance of the Mortgage Loans in
that Loan Group as of the Due Date in the month preceding the month of the
Distribution Date (after giving effect to Principal Prepayments received in
the Prepayment Period related to such prior Due Date), plus the amount, if
any, on deposit in the Pre-funding Account with respect to that Loan Group).
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to
any date of determination, the fraction (expressed as a percentage) the
numerator of which is the principal balance of the related Mortgage Loan at
such date of determination and the denominator of which is the Appraised
Value of the related Mortgaged Property.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower Tier REMIC: As specified in the Preliminary Statement.
Lower Tier REMIC Interest: As specified in the Preliminary
Statement.
Lower Tier REMIC Regular Interest: As specified in the
Preliminary Statement.
LTR-A-R Interest: As specified in the Preliminary Statement.
Maintenance: With respect to any Cooperative Unit, the rent paid
by the Mortgagor to the Cooperative Corporation pursuant to the Proprietary
Lease.
Majority in Interest: As to any Class of Regular Certificates,
the Holders of Certificates of such Class evidencing, in the aggregate, at
least 51% of the Percentage Interests evidenced by all Certificates of such
Class.
Master REMIC: As described in the Preliminary Statement.
Master Servicer: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors and assigns, in its capacity as
master servicer hereunder.
Master Servicer Advance Date: As to any Distribution Date, 12:30
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Master Servicing Fee: As to each Mortgage Loan and any
Distribution Date, an amount payable out of each full payment of interest
received on such Mortgage Loan and equal to one-twelfth of the Master
Servicing Fee Rate multiplied by the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the month of such
Distribution Date, subject to reduction as provided in Section 3.14.
Master Servicing Fee Rate: With respect to each Mortgage Loan,
the per annum rate set forth on the Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware,
or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on
the MERS System.
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MERS (R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Middle Tier REMIC: As specified in the Preliminary Statement.
Middle Tier REMIC Interest: As specified in the Preliminary
Statement.
Middle Tier REMIC Regular Interest: As specified in the
Preliminary Statement.
MIN: The Mortgage Identification Number for any MERS Mortgage
Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
Monthly Statement: The statement delivered to the
Certificateholders pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor
thereto. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to
Moody's shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Residential Pass-Through Monitoring, or such other
address as Moody's may hereafter furnish to the Depositor or the Master
Servicer.
Mortgage: The mortgage, deed of trust or other instrument
creating a first lien on an estate in fee simple or leasehold interest in
real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01
hereof pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loans: Such of the mortgage loans as from time to time
are transferred and assigned to the Trustee pursuant to the provisions hereof
and any Supplemental Transfer Agreement and that are held as a part of the
Trust Fund (including any REO Property), the mortgage loans so held being
identified in the Mortgage Loan Schedule, notwithstanding foreclosure or
other acquisition of title of the related Mortgaged Property.
Mortgage 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 hereto as Schedule I, setting
forth the following information with respect to each Mortgage Loan by Loan
Group:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the Mortgaged
Property, including the zip code;
(iii) the maturity date;
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(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling (b) a dwelling in a de
minimis PUD, (c) a condominium unit or PUD (other than a de
minimis PUD), (d) a two- to four-unit residential property or
(e) a Cooperative Unit;
(xi) the Mortgage Rate;
(xii) a code indicating whether the Mortgage Loan is a Countrywide
Mortgage Loan, a Park Granada Mortgage Loan, a Park Monaco
Mortgage Loan or a Park Sienna Mortgage Loan;
(xiii) 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;
(xiv) the purpose for the Mortgage Loan;
(xv) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xvi) the direct servicer as of the Cut-off Date and the Master
Servicing Fee Rate; and
(xvii) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan.
Such schedule shall also set forth the total of the amounts described
under (iv) and (v) above for all of the Mortgage Loans and for each Loan
Group and in the aggregate. 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.
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.
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Mortgagor: The obligor(s) on a Mortgage Note.
MTR-A-R Interest: 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 Prepayment Interest Shortfalls: As to any Distribution Date
and Loan Group, the amount by which the aggregate of Prepayment Interest
Shortfalls for such Loan Group exceeds an amount equal to the sum of (a) the
Compensating Interest for such Loan Group and Distribution Date and (b) the
excess, if any, of the Compensating Interest for each of the other Loan
Groups for such Distribution Date over Prepayment Interest Shortfalls
experienced by the Mortgage Loans in such other Loan Groups.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Non-Discount Mortgage Loan: Any Mortgage Loan in Loan Group 1 or
Loan Group 2 with an Adjusted Net Mortgage Rate that is greater than or equal
to the Required Coupon for such Loan Group.
Non-PO Formula Principal Amount: As to any Distribution Date and
Loan Group 1 and Loan Group 2, the sum of (i) the sum of the applicable
Non-PO Percentage of (a) the principal portion of each Scheduled Payment
(without giving effect to any reductions thereof caused by any Debt Service
Reductions or Deficient Valuations) due on each Mortgage Loan in the related
Loan Group on the related Due Date, (b) the Stated Principal Balance of each
Mortgage Loan in the related Loan Group that was repurchased by a Seller or
purchased by the Master Servicer pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with
any Deleted Mortgage Loan in such Loan Group received with respect to such
Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans in the related Loan
Group that are not yet Liquidated Mortgage Loans received during the calendar
month preceding the month of such Distribution Date, (e) with respect to each
Mortgage Loan in a Loan Group that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the amount
of the Liquidation Proceeds allocable to principal received during the
calendar month preceding the month of such Distribution Date with respect to
such Mortgage Loan and (f) all Principal Prepayments for such Loan Group
received during the related Prepayment Period, (ii) (A) any Subsequent
Recoveries for such Loan Group received during the calendar month preceding
the month of such Distribution Date, or (B) with respect to Subsequent
Recoveries attributable to a Discount Mortgage Loan in such Loan Group which
incurred a Realized Loss after the Senior Credit Support Depletion Date, the
Non-PO Percentage of any Subsequent Recoveries received during the calendar
month preceding the month of such Distribution Date and (iii) with respect to
the last Funding Period Distribution Date, the related Remaining Non-PO
Pre-funded Amount.
Non-PO Percentage: As to any Discount Mortgage Loan in Loan
Group 1 and Loan Group 2, a fraction (expressed as a percentage) the
numerator of which is the Adjusted Net Mortgage Rate of such Discount
Mortgage Loan and the denominator of which is the Required Coupon for such
Loan Group. As to any Non-Discount Mortgage Loan, 100%.
Nonrecoverable Advance: Any portion of an Advance previously
made or proposed to be made by the Master Servicer that, in the good faith
judgment of the Master Servicer, will not be ultimately recoverable by the
Master Servicer from the related Mortgagor, related Liquidation Proceeds,
Subsequent Recoveries or otherwise.
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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: With respect to any Distribution Date and
(i) the Class 1-A-3 Certificates, an amount equal to the
Class Certificate Balance of the Class 1-A-2 Certificates
immediately prior to such Distribution Date;
(ii) the Class 1-A-7 Certificates, an amount equal to the
Class Certificate Balance of the Class 1-A-6 Certificates
immediately prior to such Distribution Date;
(iii) the Class 1-X Certificates, an amount equal to the
aggregate of the Stated Principal Balances of the Non-Discount
Mortgage Loans in Loan Group 1 as of the Due Date in the preceding
calendar month (after giving effect to Principal Prepayments
received in the Prepayment Period related to such Due Date); and
(iv) the Class 2-X Certificates, an amount equal to the
aggregate of the Stated Principal Balances of the Non-Discount
Mortgage Loans in Loan Group 2 as of the Due Date in the preceding
calendar month (after giving effect to Principal Prepayments
received in the Prepayment Period related to such Due Date).
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) in the case of the
Depositor, signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Managing Director, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or
one of the Assistant Treasurers or Assistant Secretaries of the Depositor,
(ii) in the case of the Master Servicer, signed by the President, an
Executive Vice President, a Vice President, an Assistant Vice President, the
Treasurer, or one of the Assistant Treasurers or Assistant Secretaries of
Countrywide GP, Inc., its general partner or (iii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered
to the Depositor and the Trustee, as the case may be, as required by this
Agreement 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 a Seller, the Depositor or the Master Servicer, including,
in-house counsel, reasonably acceptable to the Trustee; provided, however,
that with respect to the interpretation or application of the REMIC
Provisions, such counsel must (i) in fact be independent of a Seller, the
Depositor and the Master Servicer, (ii) not have any direct financial
interest in a Seller, the Depositor or the Master Servicer or in any
affiliate thereof, and (iii) not be connected with a Seller, the Depositor or
the Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Optional Termination: The termination of the trust created
hereunder in connection with the purchase of the Mortgage Loans pursuant to
Section 9.01(a) hereof.
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Original Applicable Credit Support Percentage: With respect to
each of the following Classes of Certificates, the corresponding percentage
described below, as of the Closing Date:
Class M................. 6.50%
Class B-1............... 3.70%
Class B-2............... 2.50%
Class B-3............... 1.70%
Class B-4............... 1.00%
Class B-5............... 0.40%
Original Mortgage Loan: The mortgage loan refinanced in
connection with the origination of a Refinancing Mortgage Loan.
Original Subordinate Principal Balance: On or prior to the third
Senior Termination Date, (i) with respect to Loan Group 1 and Loan Group 2,
the Subordinated Percentage for the applicable Loan Group of the aggregate of
the applicable Non-PO Percentage of the Stated Principal Balances of the
Mortgage Loans in such Loan Group, in each case as of the Cut-off Date; or if
such date is after the third Senior Termination Date, the aggregate of the
Class Certificate Balances of the Subordinated Certificates as of the Closing
Date and (ii) with respect to Loan Group 3 and Loan Group 4, the Subordinated
Percentage for the applicable Loan Group of the aggregate of the applicable
Stated Principal Balances of the Mortgage Loans in such Loan Group, in each
case as of the Cut-off Date; or if such date is after the third Senior
Termination Date, the aggregate of the Class Certificate Balances of the
Subordinated Certificates as of the Closing Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: As to any Interest Accrual Period for
the COFI Certificates, the close of business on the tenth day thereof.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(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 such Due Date or during the
Prepayment Period related to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Group: As defined in Section 4.05.
Ownership Interest: As to any Residual Certificate, any
ownership interest in such Certificate including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial.
X-00
Xxxx Xxxxxxx: Xxxx Xxxxxxx LLC, a Delaware limited liability
company, and its successors and assigns, in its capacity as the seller of the
Park Granada Mortgage Loans to the Depositor.
Park Granada Mortgage Loans: The Mortgage Loans identified as
such on the Mortgage Loan Schedule for which Park Granada is the applicable
Seller.
Park Monaco: Park Monaco Inc., a Delaware corporation, and its
successors and assigns, in its capacity as the seller of the Park Monaco
Mortgage Loans to the Depositor.
Park Monaco Mortgage Loans: The Mortgage Loans identified as
such on the Mortgage Loan Schedule for which Park Monaco is the applicable
Seller.
Park Sienna: Park Sienna LLC, a Delaware limited liability
company, and its successors and assigns, in its capacity as the seller of the
Park Sienna Mortgage Loans to the Depositor.
Park Sienna Mortgage Loans: The Mortgage Loans identified as
such on the Mortgage Loan Schedule for which Park Sienna is the applicable
Seller.
Pass-Through Rate: For any interest bearing Class of
Certificates or Component, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the
related Class, such percentage interest being set forth on the face thereof
or equal to the percentage obtained by dividing the Denomination of such
Certificate by the aggregate of the Denominations of all Certificates of the
same Class.
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any one or more of the
following obligations and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and
credit of the United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving
the highest long-term debt rating of each Rating Agency, or
such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates
by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of
each Rating Agency, or such 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
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company system, the commercial paper or long-term unsecured
debt obligations of such holding company, but only if Xxxxx'x
is not a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each Rating
Agency for such securities, or such lower ratings as will not
result in the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency;
(v) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as
principal) described in clause (iv) above;
(vi) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if Fitch is a
Rating Agency and has not rated the portfolio, the highest
rating assigned by Moody's) and restricted to obligations
issued or guaranteed by the United States of America or
entities whose obligations are backed by the full faith and
credit of the United States of America and repurchase
agreements collateralized by such obligations; and
(vii) such other relatively risk free investments bearing interest
or sold at a discount acceptable to each Rating Agency as
will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each
Rating Agency
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
International Organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives
described in section 521 of 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)(l) of the Code) with respect to any Residual Certificate,
(iv) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code, (v) an "electing large partnership" as defined in
Section 775 of the Code, (vi) a Person that is not a citizen or resident of
the United States, a corporation, partnership, or other entity created or
organized in or under the laws of the United States, any state thereof or the
District of Columbia, or an estate or trust whose income from sources without
the United States is includible in gross income for United States federal
income tax purposes regardless of its connection with the conduct of a trade
or business within the United States or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service
Form W-8ECI or any applicable successor form, and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Residual Certificate to such Person
may cause any REMIC hereunder to fail to qualify as a REMIC at any time that
the Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section
7701 of the Code or successor provisions. A corporation will not be treated
as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to tax and, with the exception of the Federal Home Loan Mortgage Corporation,
a majority of its board of directors is not selected by such government unit.
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Person: Any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Plan: An "employee benefit plan" as defined in section 3(3) of
ERISA that is subject to Title I of ERISA, a "plan" as defined in section
4975 of the Code that is subject to section 4975 of the Code, or any Person
investing on behalf of or with plan assets (as defined in 29 CFR ss.2510.3-101
or otherwise under ERISA) of such an employee benefit plan or plan.
Planned Balance: With respect to any group of Planned Principal
Classes or Components in the aggregate and any Distribution Date appearing in
Schedule V hereto, the Aggregate Planned Balance for such group and
Distribution Date. With respect to any other Planned Principal Class or
Component and any Distribution Date appearing in Schedule V hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
Planned Principal Classes: As specified in the Preliminary
Statement.
PO Formula Principal Amount: As to any Distribution Date and the
Class PO-1 and Class PO-2 Certificates, the sum of (i) the sum of the
applicable PO Percentage of (a) the principal portion of each Scheduled
Payment (without giving effect to any reductions thereof caused by any Debt
Service Reductions or Deficient Valuations) due on each Mortgage Loan in the
related Loan Group on the related Due Date, (b) the Stated Principal Balance
of each Mortgage Loan in the related Loan Group that was repurchased by a
Seller or purchased by the Master Servicer pursuant to this Agreement as of
such Distribution Date, (c) the Substitution Adjustment Amount in connection
with any Deleted Mortgage Loan in the related Loan Group received with
respect to such Distribution Date, (d) any Insurance Proceeds or Liquidation
Proceeds allocable to recoveries of principal of Mortgage Loans in the
related Loan Group that are not yet Liquidated Mortgage Loans received during
the calendar month preceding the month of such Distribution Date, (e) with
respect to each Mortgage Loan in the related Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of
such Distribution Date, the amount of Liquidation Proceeds allocable to
principal received with respect to such Mortgage Loan during the calendar
month preceding the month of such Distribution Date with respect to such
Mortgage Loan, and (f) all Principal Prepayments with respect to the Mortgage
Loans in the related Loan Group received during the related Prepayment
Period, (ii) with respect to Subsequent Recoveries attributable to a Discount
Mortgage Loan in the related Loan Group which incurred a Realized Loss after
the Senior Credit Support Depletion Date, the PO Percentage of any such
Subsequent Recoveries on the Mortgage Loans in such Loan Group received
during the calendar month preceding the month of such Distribution Date and
(iii) with respect to the last Funding Period Distribution Date, the related
Remaining PO Pre-funded Amount.
PO Percentage: As to any Discount Mortgage Loan in a Loan Group
1 or Loan Group 2, a fraction (expressed as a percentage) the numerator of
which is the excess of the Required Coupon for such Loan Group over the
Adjusted Net Mortgage Rate of such Discount Mortgage Loan and the denominator
of which is such Required Coupon. As to any Non-Discount Mortgage Loan, 0%.
PO Sublimit: With respect to Loan Group 1 and Loan Group 2,
$639,202 and $125,409, respectively.
Pool Characteristics: With respect to the Mortgage Loans in each
Loan Group as of the Cut-off Date, the characteristics set forth in the sixth
bullet point under "The Mortgage Pool--
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Conveyance of Supplemental Mortgage Loans" set forth on pages S-71 and S-72 of
the Prospectus Supplement.
Pool Stated Principal Balance: As of any date of determination,
the aggregate of the Stated Principal Balances of the Outstanding Mortgage
Loans plus the amount on deposit in the Pre-funding Account, exclusive of any
investment income included therein.
Pre-funded Amount: The amount deposited in the Pre-funding
Account on the Closing Date, which shall equal $29,102,989.33.
Pre-funding Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New
York, in trust for registered holders of Alternative Loan Trust 2006-J5,
Mortgage Pass-Through Certificates, Series 2006-J5." Funds in the
Pre-funding Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement and shall not be a part of any
REMIC created hereunder; provided, however, that any investment income earned
from Permitted Investments made with funds in the Pre-funding Account shall
be for the account of the Depositor.
Prepayment Charge: With respect to any Mortgage Loan, the
charges or premiums, if any, due in connection with a full or partial
Principal Prepayment of such Mortgage Loan within the related Prepayment
Charge Period in accordance with the terms thereof.
Prepayment Charge Amount: As to any Loan Group and Distribution
Date, the sum of the Prepayment Charges collected on the Mortgage Loans in
that Loan Group during the related Prepayment Period and any amounts in
respect of such Mortgage Loans paid pursuant to Section 3.19 for such
Distribution Date.
Prepayment Charge Period: With respect to any Mortgage Loan, the
period of time during which a Prepayment Charge may be imposed.
Prepayment Interest Excess: As to any Principal Prepayment
received by Countrywide Home Loans Servicing LP 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 (a) by Countrywide Home Loans
Servicing LP 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, 2006) and on or before the last day of the month preceding
the month of such Distribution Date or (b) by any other servicer during 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 Master
Servicing Fee Rate, on such Principal Prepayment exceeds the amount of
interest paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and the related
Due Date (i) with respect to any Mortgage Loan directly serviced by
Countrywide Home Loans Servicing LP, the period from the 16th day of a
calendar month (or, in the case of the first Distribution Date, from July 1,
2006) through the 15th day of the following calendar month and (ii) with
respect to any other Mortgage Loan, the calendar month immediately preceding
the month of that Distribution Date.
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Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Prime Rate: The prime commercial lending rate of The Bank of New
York, as publicly announced to be in effect from time to time. The Prime
Rate shall be adjusted automatically, without notice, on the effective date
of any change in such prime commercial lending rate. The Prime Rate is not
necessarily The Bank of New York's lowest rate of interest.
Principal Amount: As to any Distribution Date and Loan Group 3
and Loan Group 4, the sum of (a) the principal portion of each Scheduled
Payment (without giving effect to any reductions thereof caused by any Debt
Service Reductions or Deficient Valuations) due on each Mortgage Loan (other
than a Liquidated Mortgage Loan) in that Loan Group on the related Due Date,
(b) the principal portion of the Purchase Price of each Mortgage Loan in the
related Loan Group that was repurchased by the applicable Seller or the
Master Servicer pursuant to this Agreement as of such Distribution Date, (c)
the Substitution Adjustment Amount in connection with any Deleted Mortgage
Loan in such Loan Group received with respect to such Distribution Date, (d)
any Insurance Proceeds or Liquidation Proceeds allocable to recoveries of
principal of Mortgage Loans in the related Loan Group that are not yet
Liquidated Mortgage Loans received during the calendar month preceding the
month of such Distribution Date, (e) with respect to each Mortgage Loan in a
Loan Group that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the amount of the Liquidation
Proceeds allocable to principal received during the calendar month preceding
the month of such Distribution Date with respect to such Mortgage Loan, (f)
all Principal Prepayments for such Loan Group received during the related
Prepayment Period, (g) any Subsequent Recoveries received during the calendar
month preceding the month of such Distribution Date and (h) with respect to
the last Funding Period Distribution Date, the related Remaining Pre-funded
Amount.
Principal Only Certificates: As specified in the Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on
a Mortgage Loan that is received in advance of its scheduled Due Date and is
not accompanied by an amount representing scheduled interest due on any date
or dates in any month or months subsequent to the month of prepayment.
Partial Principal Prepayments shall be applied by the Master Servicer in
accordance with the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Relocation Payment: A payment from any Loan Group to
an Lower Tier REMIC Regular Interest other than a Regular Interest
corresponding to that Loan Group as provided in the Preliminary Statement.
Principal Relocation Payments from a Loan Group shall be made of the amounts
in respect of principal from the Mortgage Loans of the Loan Group and shall
include a proportionate allocation of the Realized Losses from the Mortgage
Loans of the Loan Group.
Principal Reserve Fund: A separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05(j) with a depository
institution in the name of the Trustee for the benefit of the Class P
Certificateholders specified in Section 3.05(j) and designated "The Bank of
New York, Principal Reserve Fund in trust for registered holders of CWALT
2006-J5 Alternative Loan Trust, Mortgage Pass-Through Certificates, Series
2006-J5, Class P".
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Priority Amount: As to any Distribution Date, an amount equal to
the sum of (i) the product of (A) the Scheduled Principal Distribution Amount
for Loan Group 1, (B) the Shift Percentage and (C) the Priority Percentage
and (ii) the product of (A) the Unscheduled Principal Distribution Amount for
Loan Group 1, (B) the Shift Percentage and (C) the Priority Percentage.
Priority Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate Class
Certificate Balance of the Class 1-A-4 and Class 1-A-5 Certificates
immediately prior to such Distribution Date and the denominator of which is
the aggregate of the applicable Non-PO Percentage of the Stated Principal
Balance of each Mortgage Loan in Loan Group 1 as of the Due Date in the month
preceding the month of such Distribution Date (after giving effect to
Principal Prepayments received in the Prepayment Period related to that prior
Due Date).
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date, the Group 1 and
Group 2 Subordinated Principal Distribution Amount, the Group 3 and Group 4
Subordinated Principal Distribution Amount and any Class of Subordinated
Certificates, the portion of the applicable Subordinated Principal
Distribution Amount allocable to such Class, equal to the product of the
applicable Subordinated Principal Distribution Amount on such Distribution
Date and a fraction, the numerator of which is the Class Certificate Balance
thereof and the denominator of which is the aggregate of the
Class Certificate Balances of the Subordinated Certificates.
Proprietary Lease: With respect to any Cooperative Unit, a lease
or occupancy agreement between a Cooperative Corporation and a holder of
related Coop Shares.
Prospectus: The Prospectus dated March 27, 2006 generally
relating to the mortgage pass-through certificates to be sold by the
Depositor.
Prospectus Supplement: The Prospectus Supplement dated July 27,
2006 relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by a Seller pursuant to Section 2.02 or 2.03 hereof or purchased at
the option of the Master Servicer pursuant to Section 3.11, an amount equal
to the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan
on the date of such purchase, (ii) accrued interest thereon at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the
purchaser is the Master Servicer or (y) if the purchaser is Countrywide and
Countrywide is an affiliate of the Master Servicer) from the date through
which interest was last paid by the Mortgagor to the Due Date in the month in
which the Purchase Price is to be distributed to Certificateholders and (iii)
costs and damages incurred by the Trust Fund in connection with a repurchase
pursuant to Section 2.03 hereof that arises out of a violation of any
predatory or abusive lending law with respect to the related Mortgage Loan.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and
licensed in such states to transact a mortgage guaranty insurance business in
such states and to write the insurance provided by the insurance policy
issued by it, approved as a FNMA-approved mortgage insurer and having a
claims paying ability rating of at least "AA" or equivalent rating by a
nationally recognized statistical rating
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organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any such organization or a successor is no longer
in existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee.
References herein to a given rating category of a Rating Agency shall mean
such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount (not less than zero or more than the Stated Principal Balance of the
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the Adjusted Net Mortgage Rate from the
Due Date as to which interest was last paid or advanced (and not reimbursed)
to Certificateholders up to the Due Date in the month in which Liquidation
Proceeds are required to be distributed on the Stated Principal Balance of
such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the Mortgage Loan as reduced by the Deficient Valuation.
To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Liquidated Mortgage Loan, the amount of the Realized Loss
with respect to that Mortgage Loan will be reduced by such Subsequent
Recoveries.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the Cooperative Corporation and the originator of such
Mortgage Loan which establishes the rights of such originator in the
Cooperative Property.
Record Date: As to any Distribution Date, the last Business Day
of the month preceding the month of each Distribution Date.
Reference Bank: As defined in Section 4.08(b).
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date and
any Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently
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ended calendar month as a result of the application of the Relief Act or any
similar state laws, the amount, if any, by which (i) interest collectible on
such Mortgage Loan for the most recently ended calendar month is less than (ii)
interest accrued thereon for such month pursuant to the Mortgage Note.
Remaining Non-PO Pre-funded Amount: With respect to Loan Group 1
and Loan Group 2 and the last Funding Period Distribution Date, the excess of
the amount on deposit in the Pre-funding Account attributable to such Loan
Group on such date over the related Remaining PO Pre-funded Amount.
Remaining Pre-funded Amount: With respect to Loan Group 3 and
Loan Group 4 and the last Funding Period Distribution Date, any amounts
attributable to that Loan Group remaining in the Pre-funding Account.
Remaining PO Pre-funded Amount: With respect to Loan Group 1 and
Loan Group 2 and the last Funding Period Distribution Date, the excess of the
related PO Sublimit, over the aggregate of the applicable PO Percentages of
the Stated Principal Balances as of the related Supplemental Cut-off Date of
each Supplemental Mortgage Loan added to the applicable Loan Group.
REMIC: A "real estate mortgage investment conduit" within the
meaning of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final
regulation, revenue ruling, revenue procedure or other official announcement
or interpretation relating to REMICs and the REMIC Provisions issued after
the Closing Date.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at
sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and
related provisions, and regulations promulgated thereunder, as the foregoing
may be in effect from time to time as well as provisions of applicable state
laws.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K
and, in any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction
Document, even if the Depositor is not a party to such agreement (e.g.,
a servicing agreement with a servicer contemplated by Item 1108(a)(3)
of Regulation AB);
(b) termination of a Transaction Document (other than by expiration
of the agreement on its stated termination date or as a result of all
parties completing their obligations under such agreement), even if the
Depositor is not a party to such agreement (e.g., a servicing agreement
with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Master Servicer only, if the Master Servicer
becomes aware of any bankruptcy or receivership with respect to
Countrywide, the Depositor, the Master Servicer, any Subservicer, the
Trustee, 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;
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(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, as appropriate.
Required Coupon: With respect to the Mortgage Loans in Loan
Group 1, 6.50% per annum. With respect to the Mortgage Loans in Loan Group 2,
7.00% per annum.
Required Insurance Policy: With respect to any Mortgage Loan,
any insurance policy that is required to be maintained from time to time
under this Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter,
such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
Restricted Classes: As defined in Section 4.02(e).
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:
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Mortgage Surveillance Monitoring, or such other address as S&P may hereafter
furnish to the Depositor and the Master Servicer.
Xxxxxxxx-Xxxxx Certification: As defined in Section 11.05.
Scheduled Balances: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such
Mortgage Loan which, unless otherwise specified herein, shall give effect to
any related Debt Service Reduction and any Deficient Valuation that affects
the amount of the monthly payment due on such Mortgage Loan.
Scheduled Principal Distribution Amount: As to any Distribution
Date and Loan Group, an amount equal to the Non-PO Percentage of all amounts
described in subclauses (a) through (d) of clause (i) of the definition of
Non-PO Formula Principal Amount for such Distribution Date and Loan Group.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide, Park Granada, Park Monaco or Park Sienna,
as applicable.
Senior Certificate Group: As specified in the Preliminary
Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the
Class Certificate Balance of each Class of Subordinated Certificates has been
reduced to zero.
Senior Percentage: As to any Senior Certificate Group and
Distribution Date, the percentage equivalent of a fraction the numerator of
which is the aggregate Class Certificate Balance of the Senior Certificates
of such Senior Certificate Group (other than the related Class PO
Certificates, if any, and Notional Amount Certificates) immediately prior to
such Distribution Date and the denominator of which is the aggregate of (x)
in the case of Loan Group 1 and Loan Group 2, the applicable Non-PO
Percentage of the Stated Principal Balance of each Mortgage Loan in the
related Loan Group as of the Due Date occurring in the month prior to the
month of such Distribution Date (after giving effect to Principal Prepayments
received in the Prepayment Period related to such prior Due Date) and (ii) in
the case of Loan Group 3 and Loan Group 4, the aggregate of the Stated
Principal Balance of each Mortgage Loan in the related Loan Group as of the
Due Date occurring in the month prior to the month of such Distribution Date
(after giving effect to Principal Prepayments received in the Prepayment
Period related to such prior Due Date); provided, however, that on any
Distribution Date after the third Senior Termination Date, the Senior
Percentage for the Senior Certificates of the remaining Senior Certificate
Group is the percentage equivalent of a fraction, the numerator of which is
the aggregate Class Certificate Balance of the Senior Certificates (other
than the related Class PO Certificates, if any, and Notional Amount
Certificates) of such remaining Senior Certificate Group immediately prior to
such Distribution Date and the denominator is the aggregate of the Class
Certificate Balances of all Classes of Certificates (other than the Class PO
Certificates and the Notional Amount Certificates), immediately prior to such
Distribution Date.
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Senior Prepayment Percentage: As to a Senior Certificate Group
and any Distribution Date during the five years beginning on the first
Distribution Date, 100%. The Senior Prepayment Percentage for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date will, except as provided herein, be as follows: for any
Distribution Date in the first year thereafter, the related Senior Percentage
plus 70% of the related Subordinated Percentage for such Distribution Date;
for any Distribution Date in the second year thereafter, the related Senior
Percentage plus 60% of the related Subordinated Percentage for such
Distribution Date; for any Distribution Date in the third year thereafter,
the related Senior Percentage plus 40% of the related Subordinated Percentage
for such Distribution Date; for any Distribution Date in the fourth year
thereafter, the related Senior Percentage plus 20% of the related
Subordinated Percentage for such Distribution Date; and for any Distribution
Date thereafter, the related Senior Percentage for such Distribution Date
(unless on any Distribution Date the Senior Percentage exceeds the initial
Senior Percentage of such Senior Certificate Group, in which case the Senior
Prepayment Percentage for each Senior Certificate Group for such Distribution
Date will once again equal 100%). Notwithstanding the foregoing, no decrease
in any Senior Prepayment Percentage will occur unless both of the Senior Step
Down Conditions are satisfied with respect to all of the Loan Groups.
Senior Step Down Conditions: With respect to the Mortgage Loans
in a Loan Group: (i) the outstanding principal balance of all Mortgage Loans
delinquent 60 days or more (including Mortgage Loans in foreclosure, REO
Property and Mortgage Loans the mortgagors of which are in bankruptcy)
(averaged over the preceding six month period), as a percentage of (a) if
such date is on or prior to the third Senior Termination Date, the
Subordinated Percentage for such Loan Group of (i) in the case of Loan Group
1 and Loan Group 2, the aggregate of the applicable Non-PO Percentage of the
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group
and (ii) in the case of Loan Group 3 and Loan Group 4, the Stated Principal
Balances of the Mortgage Loans in that Loan Group, or (b) if such date is
after the third Senior Termination Date, the aggregate Class Certificate
Balance of the Subordinated Certificates, does not equal or exceed 50%, and
(ii) cumulative Realized Losses on the Mortgage Loans in each Loan Group do
not exceed: (a) commencing with the Distribution Date on the fifth
anniversary of the first Distribution Date, 30% of the Original Subordinate
Principal Balance, (b) commencing with the Distribution Date on the sixth
anniversary of the first Distribution Date, 35% of the Original Subordinate
Principal Balance, (c) commencing with the Distribution Date on the seventh
anniversary of the first Distribution Date, 40% of the Original Subordinate
Principal Balance, (d) commencing with the Distribution Date on the eighth
anniversary of the first Distribution Date, 45% of the Original Subordinate
Principal Balance, and (e) commencing with the Distribution Date on the ninth
anniversary of the first Distribution Date, 50% of the Original Subordinate
Principal Balance.
Senior Termination Date: For any Senior Certificate Group, the
Distribution Date on which the aggregate Class Certificate Balance of the
Senior Certificates in such Senior Certificate Group (other than the related
Class PO Certificates) has been reduced to zero.
Servicing Advances: All customary, reasonable and necessary "out
of pocket" costs and expenses incurred in the performance by the Master
Servicer of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged
Property, (ii) any expenses reimbursable to the Master Servicer pursuant to
Section 3.11 and any enforcement or judicial proceedings, including
foreclosures, (iii) the management and liquidation of any REO Property and
(iv) compliance with the obligations under Section 3.09.
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
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of servicing officers furnished to the Trustee by the Master Servicer on the
Closing Date pursuant to this Agreement, as such list may from time to time be
amended.
Shift Percentage: As to any Distribution Date occurring during
the five years beginning on the first Distribution Date, 0%. For any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date as follows: for any Distribution Date in the first year
thereafter, 30%; for any Distribution Date in the second year thereafter,
40%; for any Distribution Date in the third year thereafter, 60%; for any
Distribution Date in the fourth year thereafter, 80%; and for any
Distribution Date thereafter, 100%.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the unpaid principal balance of such Mortgage Loan as of such Due Date, as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) minus the sum of: (i) any previous partial
Principal Prepayments and the payment of principal due on such Due Date,
irrespective of any delinquency in payment by the related Mortgagor, (ii)
Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) received in the prior calendar month and Principal
Prepayments received through the last day of the related Prepayment Period,
in each case, with respect to that Mortgage Loan and (iii) any Realized Loss
previously incurred in connection with a Deficient Valuation. The Stated
Principal Balance of any Mortgage Loan that becomes a Liquidated Mortgage
Loan will be zero on each date following the Due Period in which such
Mortgage Loan becomes a Liquidated Mortgage Loan.
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.
Strike Rate: With respect to each Class of Covered Certificates,
the applicable rate set forth below:
-----------------------------------------------------
Class or Classes of Certificates Strike Rate
-------------------------------- -----------
-----------------------------------------------------
Class 1-A-2 Certificates 6.00%
-----------------------------------------------------
Class 1-A-6 Certificates 5.90%
-----------------------------------------------------
Subcontractor: Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to Mortgage Loans under the direction
or authority of the Master Servicer or a Subservicer or the Trustee, as the
case may be.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordinated Percentage: As to any Loan Group and Distribution
Date on or prior to the third Senior Termination Date, 100% minus the Senior
Percentage for the Senior Certificate Group relating to such Loan Group for
such Distribution Date. As to any Distribution Date after the third Senior
Termination Date, 100% minus the Senior Percentage for such Distribution Date.
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Subordinated Portion: For any Distribution Date, an amount equal
to the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group as of the end of the Prepayment Period related to the
immediately preceding Distribution Date, minus the aggregate Class
Certificate Balance of the related Senior Certificates immediately prior to
such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date
and Loan Group, 100% minus the related Senior Prepayment Percentage for such
Distribution Date.
Subordinated Principal Distribution Amount: The Group 1 and
Group 2 Subordinated Principal Distribution Amount or the Group 3 and Group 4
Subordinated Principal Distribution Amount, as applicable.
Subordinate Pass-Through Rate: For the Interest Accrual Period
related to each Distribution Date, a per annum rate equal to (1) the sum of
the following for each Loan Group: the product of (x) the Required Coupon of
the Loan Group and (y) the related Subordinated Portion immediately prior to
that Distribution Date, divided by (2) the aggregate Class Certificate
Balance of the Subordinated Certificates immediately prior to that
Distribution Date.
Subsequent Recoveries: As to any Distribution Date, with respect
to a Liquidated Mortgage Loan that resulted in a Realized Loss in a prior
calendar month, unexpected amounts received by the Master Servicer (net of
any related expenses permitted to be reimbursed pursuant to Section 3.08)
specifically related to such Liquidated Mortgage Loan.
Subservicer: Any person to whom the Master Servicer has
contracted for the servicing of all or a portion of the Mortgage Loans
pursuant to Section 3.02 hereof.
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) not be a Cooperative Loan unless the Deleted Mortgage Loan
was a Cooperative Loan and (vi) comply with each representation and warranty
set forth in Section 2.03 hereof.
Substitution Adjustment Amount: The meaning ascribed to such
term pursuant to Section 2.03.
Supplemental 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 Interest Trust: The separate trust created under
this Agreement pursuant to Section 3.05(i).
Supplemental Interest Trustee: The Bank of New York, a New York
banking corporation, not in its individual capacity, but solely in its
capacity as trustee of the Supplemental Interest Trust for the benefit of the
Holders of the Covered Certificates under this Agreement, and any successor
thereto, and any corporation or national banking association resulting from
or surviving any consolidation
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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.
Supplemental Mortgage Loan: Any Mortgage Loan, other than an
Initial Mortgage Loan, conveyed to the Trust Fund pursuant to Section 2.01
hereof and to a Supplemental Transfer Agreement, which Mortgage Loan shall be
listed on the revised Mortgage Loan Schedule delivered pursuant to this
Agreement and on Schedule A to such Supplemental Transfer Agreement. When
used with respect to a single Supplemental Transfer Date, Supplemental
Mortgage Loan shall mean a Supplemental Mortgage Loan conveyed to the Trust
Fund on that Supplemental Transfer Date.
Supplemental Transfer Agreement: A Supplemental Transfer
Agreement substantially in the form of Exhibit P hereto, executed and
delivered by the related Seller or Sellers, the Master Servicer, the
Depositor and the Trustee as provided in Section 2.01 hereof.
Supplemental Transfer Date: For any Supplemental Transfer
Agreement, the date the related Supplemental Mortgage Loans are transferred
to the Trust Fund pursuant to the related Supplemental Transfer Agreement.
Targeted Balance: With respect to any group of Targeted
Principal Classes or Components in the aggregate and any Distribution Date
appearing in Schedule V hereto, the Aggregate Targeted Balance for such group
and Distribution Date. With respect to any other Targeted Principal Class or
Component and any Distribution Date appearing in Schedule V hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
Targeted Principal Classes: As specified in the Preliminary
Statement.
Tax Matters Person: The person designated as "tax matters
person" in the manner provided under Treasury regulation ss. 1.860F-4(d) and
Treasury regulation ss. 301.6231(a)(7)-1. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Transaction Documents: This Agreement, the Corridor Contracts,
the Corridor Contract Assignment 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.
Trust Fund: The corpus of the trust created hereunder consisting
of (i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the Cut-off Date to the extent not applied in computing
the Cut-off Date Principal Balance thereof; (ii) the Certificate Account, the
Distribution Account, the Pre-funding Account, the Capitalized Interest
Account and the Principal 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 hereunder, such successor.
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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 any investment earnings thereon) with respect to such
Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.009% per
annum.
Undercollateralized Group: As defined in Section 4.05.
Underwriter's Exemption: Prohibited Transaction Exemption
2002-41, 67 Fed. Reg. 54487 (2002), as amended (or any successor thereto), or
any substantially similar administrative exemption granted by the U.S.
Department of Labor.
Underwriter: As specified in the Preliminary Statement.
Unscheduled Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i) with
respect to each Mortgage Loan in that Loan Group that became a Liquidated
Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the applicable Non-PO Percentage of the Liquidation
Proceeds allocable to principal received with respect to such Mortgage Loan
and (ii) the applicable Non-PO Percentage of the amount described in
subclause (f) of clause (i) of the definition of Non-PO Formula Principal
Amount for such Loan Group and Distribution Date and (iii) any Subsequent
Recoveries described in clause (ii) of the definition of Non-PO Formula
Principal Amount for such Loan Group and Distribution Date.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each
Class of Notional Amount Certificates, if any (such Voting Rights to be
allocated among the holders of Certificates of each such Class in accordance
with their respective Percentage Interests), and (b) the remaining Voting
Rights (or 100% of the Voting Rights if there is no Class of Notional Amount
Certificates) shall be allocated among Holders of the remaining Classes of
Certificates in proportion to the Certificate Balances of their respective
Certificates on such date.
Yield Supplement Amount: For any Distribution Date and Class of
Covered Certificates, on or prior to the applicable Corridor Contract
Termination Date, on which LIBOR exceeds the applicable Strike Rate, the
related Yield Supplement Amount will equal an amount equal to interest for
the related Interest Accrual Period on the Class Certificate Balance of the
applicable Class of Covered Certificates immediately prior to such
Distribution Date at a rate equal to the excess of (i) the lesser of LIBOR
and the applicable Ceiling Rate over (ii) the applicable Strike Rate.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) Each Seller, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the
Depositor, without recourse, all its respective right, title and interest in
and to the related Initial Mortgage Loans, including all interest and principal
received or receivable by such Seller, on or with respect to the applicable
Initial Mortgage Loans after the Initial Cut-off Date and all interest and
principal payments on the related Initial Mortgage Loans received prior to the
Initial Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of principal and interest due and
payable on such Initial Mortgage Loans, on or before the Initial Cut-off Date.
On or prior to the Closing Date, Countrywide shall deliver to the Depositor or,
at the Depositor's direction, to the Trustee or other designee of the
Depositor, the Mortgage File for each Mortgage Loan listed in the Mortgage Loan
Schedule (except that, in the case of the Delay Delivery Mortgage Loans (which
may include Countrywide Mortgage Loans, Park Granada Mortgage Loans, Park
Monaco Mortgage Loans and Park Sienna Mortgage Loans), such delivery may take
place within thirty (30) days following the Closing Date or twenty (20) days
following the applicable Supplemental Transfer Date, as applicable). Such
delivery of the Mortgage Files shall be made against payment by the Depositor
of the purchase price, previously agreed to by the Sellers and Depositor, for
the Mortgage Loans. With respect to any Initial Mortgage Loan that does not
have a first payment date on or before the Due Date in the month of the first
Distribution Date or any Supplemental Mortgage Loan that does not have a first
payment date on or before the Due Date in the month after the related
Supplemental Transfer Date, Countrywide shall deposit into the Distribution
Account on or before the Distribution Account Deposit Date relating to the
first applicable Distribution Date, an amount equal to one month's interest at
the related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of
such Mortgage Loan.
(b) Immediately upon the conveyance of the Mortgage Loans referred to
in clause (a), the Depositor sells, transfers, assigns, sets over and otherwise
conveys to the Trustee for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to the
Trust Fund together with the Depositor's right to require each Seller to cure
any breach of a representation or warranty made herein by such Seller or to
repurchase or substitute for any affected Mortgage Loan in accordance herewith.
(c) In connection with the transfer and assignment set forth in
clause (b) above, the Depositor has delivered or caused to be delivered to the
Trustee (or, in the case of the Delay Delivery Mortgage Loans that are Initial
Mortgage Loans, will deliver or cause to be delivered to the Trustee within
thirty (30) days following the Closing Date and in the case of the Delay
Delivery Mortgage Loans that are Supplemental Mortgage Loans, will deliver or
cause to be delivered to the Trustee within twenty (20) days following the
applicable Supplemental Transfer Date) for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) (A) the original Mortgage Note endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
____________ without 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
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(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, certified by Countrywide as being a
true and complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the Commonwealth of
Puerto Rico, a true copy of the Mortgage certified as such by the
applicable notary) and in the case of each MERS Mortgage Loan, the
original Mortgage or a copy of such mortgage, with recording information,
noting the presence of the MIN of the Mortgage Loans and either language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a
MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the
public recording office in which such Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage or a copy of such
assignment, with recording information, (which may be included in a
blanket assignment or assignments), together with, except as provided
below, all interim recorded assignments of such mortgage or a copy of such
assignment, with recording information, (each such assignment, when duly
and validly completed, to be in recordable form and sufficient to effect
the assignment of and transfer to the assignee thereof, under the Mortgage
to which the assignment relates); provided that, if the related Mortgage
has not been returned from the applicable public recording office, such
assignment of the Mortgage may exclude the information to be provided by
the recording office; provided, further, that such assignment of Mortgage
need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any;
(v) except as provided below, the original or duplicate original
lender's title policy or a printout of the electronic equivalent and all
riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) The Coop Shares, together with a stock power in blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
(E) The executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places required to
perfect the Seller's interest in the Coop Shares and the Proprietary
Lease; and
(F) The executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a complete
and unbroken line
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from the mortgagee to the Trustee with evidence of recording thereon
(or in a form suitable for recordation).
In addition, in connection with the assignment of any MERS Mortgage
Loan, each Seller agrees that it will cause, at the Trustee's expense, the
MERS(R) System to indicate that the Mortgage Loans sold by such Seller to the
Depositor have been assigned by that Seller to the Trustee in accordance with
this Agreement (and any Supplemental Transfer Agreement, as applicable) for the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in such
computer files the information required by the MERS(R) System to identify the
series of the Certificates issued in connection with such Mortgage Loans. Each
Seller further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by such
Seller to the Depositor during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Depositor cannot deliver (a) the original recorded
Mortgage, or a copy of such mortgage, with recording information, (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 assignment or a copy
of such assignment, 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 after such
transfer and assignment, the Trustee shall (A) as the
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assignee thereof, affix the following language to each assignment of Mortgage:
"CWALT Series 0000-X0, Xxx Xxxx xx Xxx Xxxx as trustee", (B) cause such
assignment to be in proper form for recording in the appropriate public office
for real property records and (C) cause to be delivered for recording in the
appropriate public office for real property records the assignments of the
Mortgages to the Trustee, except that (i) with respect to any assignments of
Mortgage as to which the Trustee has not received the information required to
prepare such assignment in recordable form, the Trustee's obligation to do so
and to deliver the same for such recording shall be as soon as practicable
after receipt of such information and in any event within thirty (30) days
after receipt thereof and (ii) the Trustee need not cause to be recorded any
assignment which relates to a Mortgage Loan, the Mortgaged Property and
Mortgage File relating to which are located in any jurisdiction (including
Puerto Rico) under the laws of which the recordation of such assignment is not
necessary to protect the Trustee's and the Certificateholders' interest in the
related Mortgage Loan as evidenced by an opinion of counsel delivered by
Countrywide to the Trustee within 90 days of the Closing Date (which opinion
may be in the form of a "survey" opinion and is not required to be delivered by
counsel admitted to practice law in the jurisdiction as to which such legal
opinion applies).
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, will deposit in the Certificate Account the portion of such
payment that is required to be deposited in the Certificate Account pursuant to
Section 3.05 hereof.
Notwithstanding anything to the contrary in this Agreement, within
thirty (30) days after the Closing Date with respect to the Initial Mortgage
Loans, Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall either (i) deliver to the Depositor, or at the
Depositor's direction, to the Trustee or other designee of the Depositor the
Mortgage File as required pursuant to this Section 2.01 for each Delay Delivery
Mortgage Loan or (ii) either (A) substitute a Substitute Mortgage Loan for the
Delay Delivery Mortgage Loan or (B) repurchase the Delay Delivery Mortgage
Loan, which substitution or repurchase shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 (treating each Delay
Delivery Mortgage Loan as a Deleted Mortgage Loan for purposes of such Section
2.03); provided, however, that if Countrywide fails to deliver a Mortgage File
for any Delay Delivery Mortgage Loan within the thirty (30) day period provided
in the prior sentence, Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall use its best reasonable efforts to
effect a substitution, rather than a repurchase of, such Deleted Mortgage Loan
and provided further that the cure period provided for in Section 2.02 or in
Section 2.03 shall not apply to the initial delivery of the Mortgage File for
such Delay Delivery Mortgage Loan, but rather Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) shall have five (5)
Business Days to cure such failure to deliver. At the end of such thirty (30)
day period the Trustee shall send a Delay Delivery Certification for the Delay
Delivery Mortgage Loans delivered during such thirty (30) day period in
accordance with the provisions of Section 2.02.
(d) Subject to the execution and delivery of the related Supplemental
Transfer Agreement as provided in Section 2.01(e) hereof and the terms and
conditions of this Agreement, each Seller sells, transfers, assigns, sets over
and otherwise conveys to the Depositor, without recourse, on each Supplemental
Transfer Date, with respect to each Supplemental Mortgage Loan sold by such
Seller to the Depositor, all the right, title and interest of that Seller in
and to the Supplemental Mortgage Loans sold by it identified in such
Supplemental Transfer Agreement, including all interest and principal received
and receivable by such Seller on or with respect to the related Supplemental
Mortgage Loans on and after the related Supplemental Cut-off Date (to the
extent not applied in computing the Cut-off Date Principal Balance thereof) or
deposited into the Certificate Account by the related Seller, other than
principal and interest due on such Supplemental Mortgage Loans prior to the
related Supplemental Cut-off Date.
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Immediately upon the conveyance of the Supplemental Mortgage Loans
referred to in the preceding paragraph, the Depositor sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for benefit of the
Certificateholders, without recourse, all right title and interest in all of
the Supplemental Mortgage Loans.
Each Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans sold by such Seller to the Depositor and has
agreed to take the actions specified herein. The Depositor, concurrently with
the execution and delivery of this Agreement, hereby sells, transfers, assigns
and otherwise conveys to the Trustee for the use and benefit of the
Certificateholders, without recourse, all right title and interest in the
portion of the Trust Fund not otherwise conveyed to the Trust Fund pursuant to
Sections 2.01(a) or (b).
(e) Upon five (5) Business Days written notice to the Trustee, the
Depositor, the Master Servicer (if the Master Servicer is not a Seller) and the
Rating Agencies, on any other Business Day during the Funding Period designated
by Countrywide, Park Granada, Park Monaco and Park Sienna, if applicable, the
Depositor and the Trustee shall complete, execute and deliver a Supplemental
Transfer Agreement so long as no Rating Agency has provided notice that the
execution and delivery of such Supplemental Transfer Agreement will result in a
reduction or withdrawal of the any ratings assigned to the Certificates. After
the execution and delivery of such Supplemental Transfer Agreement, on the
Supplemental Transfer Date, the Trustee shall set aside in the Pre-funding
Account an amount equal to the Aggregate Supplemental Purchase Amount.
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;
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(vi) no Supplemental Mortgage Loan conveyed on such
Supplemental Transfer date was 30 or more days delinquent;
(vii) the aggregate of the PO Percentages of the Stated
Principal Balance of all Supplemental Mortgage Loans in Loan Group 1
and Loan Group 2 shall not exceed the applicable PO Sublimit;
(viii) following the conveyance of the Supplemental
Mortgage Loans on such Supplemental Transfer Date to the Trust Fund,
the characteristics of the Mortgage Loans will comply with the Pool
Characteristics (including the permitted variances listed therein);
provided, that for the purpose of making these calculations, the
characteristics for any Initial Mortgage Loan made will be taken as of
the Initial Cut-off Date and the characteristics for any Supplemental
Mortgage Loan will be taken as of the related Supplemental Cut-off Date;
(ix) none of the Sellers or the Depositor shall be
insolvent or shall be rendered insolvent as a result of such transfer;
and
(x) the Depositor shall have delivered to the Trustee an
Officer's Certificate confirming the satisfaction of each of these
conditions precedent.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
(f) Within seven Business Days after each Supplemental Transfer Date,
upon (1) delivery to the Trustee by the Depositor or Countrywide of the
Opinions of Counsel referred to in Sections 2.01(e)(ii) and (iii), (2) delivery
to the Trustee by Countrywide of a revised Mortgage Loan Schedule reflecting
the Supplemental Mortgage Loans conveyed on such Supplemental Transfer Date to
the Loan Group into which each Supplement Mortgage Loan was conveyed and (3)
delivery to the Trustee by the Depositor of an Officer's Certificate confirming
the satisfaction of each of the conditions precedent set forth in this Section
2.01(f), the Trustee shall pay to each Seller the Aggregate Supplemental
Transfer Amount for each Loan Group used to purchase Supplemental Mortgage
Loans for that Loan Group from such Seller from those funds that were set aside
in the Pre-funding Account pursuant to Section 2.01(e). The positive
difference, if any, between the Aggregate Supplemental Transfer Amount for each
Loan Group and the Aggregate Supplemental Purchase Amount for that Loan Group
shall be reinvested by the Trustee in the Pre-funding Account and shall remain
designated as a portion of the Pre-funded Amount allocated to that Loan Group.
(g) The Trustee shall not be required to investigate or otherwise
verify compliance with the conditions set forth in the preceding paragraph,
except for its own receipt of documents specified above, and shall be entitled
to rely on the required Officer's Certificate.
Within thirty days after the final Supplemental Transfer Date, the
Depositor shall deliver to the Trustee a letter of a nationally recognized firm
of independent public accountants stating whether or not the Supplemental
Mortgage Loans conveyed on such Supplemental Transfer Date conform to the
characteristics in Section 2.01(e)(vi), (vii) and (viii) for that Loan Group.
(h) Neither the Depositor nor the Trust will acquire or hold any
Mortgage Loan that would violate the representations made by Countrywide set
forth in clause (48) of Schedule III-A hereto.
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SECTION 2.02. Acceptance by Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in
the Initial Certification in the form annexed hereto as Exhibit F-1 and
declares that it holds and will hold such documents and the other documents
delivered to it constituting the Mortgage Files, and that it holds or will hold
such other assets as are included in the Trust Fund, in trust for the exclusive
use and benefit of all present and future Certificateholders. The Trustee
acknowledges that it will maintain possession of the Mortgage Notes in the
State of California, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) an Initial Certification in the
form annexed hereto as Exhibit F-1. Based on its review and examination, and
only as to the documents identified in such Initial Certification, the Trustee
acknowledges that such documents appear regular on their face and relate to
such Initial Mortgage Loan. The Trustee shall be under no duty or obligation to
inspect, review or examine said documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
On or about the thirtieth (30th) day after the Closing Date, the
Trustee shall deliver to the Depositor, the Master Servicer and Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a
Delay Delivery Certification with respect to the Initial Mortgage Loans in the
form annexed hereto as Exhibit G-1, with any applicable exceptions noted
thereon.
Not later than 90 days after the Closing Date, the Trustee shall
deliver to the Depositor, the Master Servicer and Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a Final
Certification with respect to the Initial Mortgage Loans in the form annexed
hereto as Exhibit H-1, with any applicable exceptions noted thereon. If, in the
course of such review, the Trustee finds any document constituting a part of a
Mortgage File which does not meet the requirements of Section 2.01, the Trustee
shall list such as an exception in the Final Certification; provided, however
that the Trustee shall not make any determination as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party so endorsing, as noteholder or assignee thereof, in and to that Mortgage
Note or (ii) any assignment is in recordable form or is sufficient to effect
the assignment of and transfer to 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
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delivered every 90 days thereafter until the related Mortgage Loan is returned
to the Trustee. Any such substitution pursuant to (a) above or purchase
pursuant to (b) above shall not be effected prior to the delivery to the
Trustee of the Opinion of Counsel required by Section 2.05 hereof, if any, and
any substitution pursuant to (a) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit N. No substitution is permitted to be made in any calendar
month after the Determination Date for such month. The Purchase Price for any
such Mortgage Loan shall be deposited by Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) in the Certificate Account
on or prior to the Distribution Account Deposit Date for the Distribution Date
in the month following the month of repurchase and, upon receipt of such
deposit and certification with respect thereto in the form of Exhibit N hereto,
the Trustee shall release the related Mortgage File to Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) and shall
execute and deliver at Countrywide's (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) request such instruments of transfer or
assignment prepared by Countrywide, in each case without recourse, as shall be
necessary to vest in Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna), or its designee, the Trustee's interest
in any Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) repurchases an Initial Mortgage Loan that is a MERS
Mortgage Loan, the Master Servicer shall either (i) cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) or its designee and shall cause such
Mortgage to be removed from registration on the MERS(R) System in accordance
with MERS' rules and regulations or (ii) cause MERS to designate on the MERS(R)
System Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) or its designee as the beneficial holder of such
Mortgage Loan.
(b) Upon delivery of the Supplemental Mortgage Loans pursuant to a
Supplemental Transfer Agreement, the Trustee shall acknowledge receipt of the
documents identified in any Supplemental Certification in the form annexed
hereto as Exhibit F-2 and declare that it will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that it
will hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Trustee acknowledges that it will maintain possession of the Mortgage Notes in
the State of California, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Supplemental
Transfer Date to the Depositor, the Master Servicer and Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a
Supplemental Certification in the form annexed hereto as Exhibit F-2. Based on
its review and examination, and only as to the documents identified in such
Supplemental Certification, the Trustee shall acknowledge that such documents
appear regular on their face and relate to such Supplemental Mortgage Loan. The
Trustee shall be under no duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the same
are genuine, enforceable or appropriate for the represented purpose or that
they have actually been recorded in the real estate records or that they are
other than what they purport to be on their face.
On or about the twentieth (20th) day after the Supplemental Transfer
Date, the Trustee shall deliver to the Depositor, the Master Servicer and
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) a Delay Delivery Certification with respect to the Supplemental
Mortgage Loans in the form annexed hereto as Exhibit G-2, with any applicable
exceptions noted thereon.
Not later than 90 days after the final Supplemental Transfer Date,
the Trustee shall deliver to the Depositor, the Master Servicer and Countrywide
(on its own behalf and on behalf of Park
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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) above shall not be
effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit N. No substitution is permitted to
be made in any calendar month after the Determination Date for such month. The
Purchase Price for any such Mortgage Loan shall be deposited by Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) in
the Certificate Account on or prior to the Distribution Account Deposit Date
for the Distribution Date in the month following the month of repurchase and,
upon receipt of such deposit and certification with respect thereto in the form
of Exhibit N hereto, the Trustee shall release the related Mortgage File to
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) and shall execute and deliver at Countrywide's (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) request such
instruments of transfer or assignment prepared by Countrywide, in each case
without recourse, as shall be necessary to vest in Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna), or a
designee, the Trustee's interest in any Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) repurchases a Supplemental
Mortgage Loan that is a MERS Mortgage Loan, the Master Servicer shall either
(i) cause MERS to execute and deliver an assignment of the Mortgage in
recordable form to transfer the Mortgage from MERS to Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) and shall
cause such Mortgage to be removed from registration on the MERS(R) System in
accordance with MERS' rules and regulations or (ii) cause MERS to designate on
the MERS(R) System Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) or its designee as the beneficial holder
of such Mortgage Loan.
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(d) The Trustee shall retain possession and custody of each Mortgage
File in accordance with and subject to the terms and conditions set forth
herein. The Master Servicer shall promptly deliver to the Trustee, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the possession of the
Master Servicer from time to time.
(e) It is understood and agreed that the respective obligations of
each Seller to substitute for or to purchase any Mortgage Loan sold to the
Depositor by it which does not meet the requirements of Section 2.01 above
shall constitute the sole remedy respecting such defect available to the
Trustee, the Depositor and any Certificateholder against that Seller.
SECTION 2.03. Representations, Warranties and Covenants of the
Sellers and Master Servicer.
(a) Countrywide hereby makes the representations and warranties set
forth in (i) Schedule II-A, Schedule II-B, Schedule II-C and Schedule II-D
hereto, and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, (ii) Schedule III-A hereto,
and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, or if so specified therein,
as of the Initial Cut-off Date with respect to all of the Initial Mortgage
Loans and as of the related Supplemental Cut-off Date with respect to all of
the Supplemental Mortgage Loans, and (iii) Schedule III-B hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of the Initial
Cut-off Date with respect to the Initial Mortgage Loans that are Countrywide
Mortgage Loans and as of the related Supplemental Cut-off Date with respect to
the Supplemental Mortgage Loans that are Countrywide Mortgage Loans. Park
Granada hereby makes the representations and warranties set 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
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materially and adversely affects the interests of the Certificateholders in
that Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. Each Seller hereby covenants that within 90 days
of the earlier of its discovery or its receipt of written notice from any party
of a breach of any representation or warranty with respect to a Mortgage Loan
sold by it pursuant to Section 2.03(a) and with respect to a breach of a
representation and warranty with respect to a Supplemental Mortgage Loan sold
by it under Section 2.01(e)(i) which materially and adversely affects the
interests of the Certificateholders in that Mortgage Loan, it shall cure such
breach in all material respects, and if such breach is not so cured, shall, (i)
if such 90-day period expires prior to the second anniversary of the Closing
Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund
and substitute in its place a Substitute Mortgage Loan, in the manner and
subject to the conditions set forth in this Section; or (ii) repurchase the
affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price
in the manner set forth below; provided, however, that any such substitution
pursuant to (i) above shall not be effected prior to the delivery to the
Trustee of the Opinion of Counsel required by Section 2.05 hereof, if any, and
any such substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit N and the Mortgage File for any such Substitute Mortgage
Loan. The Seller repurchasing a Mortgage Loan pursuant to this Section 2.03(c)
shall promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. With respect to the representations and
warranties described in this Section which are made to the best of a Seller's
knowledge, if it is discovered by either the Depositor, a Seller or the Trustee
that the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding that
Seller's lack of knowledge with respect to the substance of such representation
or warranty, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
(d) 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.
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For any month in which a Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
Substitute Mortgage Loans sold to the Depositor by that Seller as of the date
of substitution is less than the aggregate Stated Principal Balance of all
Deleted Mortgage Loans repurchased by that Seller (after application of the
scheduled principal portion of the monthly payments due in the month of
substitution). The amount of such shortage (the "Substitution Adjustment
Amount") plus an amount equal to the aggregate of any unreimbursed Advances
with respect to such Deleted Mortgage Loans shall be deposited in the
Certificate Account by Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) on or before the Distribution Account
Deposit Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan became required to be purchased or
replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Certificate Account
pursuant to Section 3.05 on or before the Distribution Account Deposit Date for
the Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a Request for Release in the form of
Exhibit N hereto, the Trustee shall release the related Mortgage File held for
the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or
replace any Mortgage Loan as to which a breach has occurred and is continuing
shall constitute the sole remedy against such Persons respecting such breach
available to Certificateholders, the Depositor or the Trustee on their behalf.
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 hereof or such other date set
forth herein 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)(ii) hereof, together with all rights of the Depositor to
require each 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.
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SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than
90 days after the Closing Date unless Countrywide delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause each REMIC created hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, a Seller, the Master Servicer,
or the Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the party
discovering such fact shall promptly (and in any event within five (5) Business
Days of discovery) give written notice thereof to the other parties. In
connection therewith, the Trustee shall require Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna), at its option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the Mortgage Loan to be released pursuant hereto in the
same manner, and on the 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
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(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.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer
shall service and administer the Mortgage Loans in accordance with the terms of
this Agreement and customary and usual standards of practice of prudent
mortgage loan servicers. In connection with such servicing and administration,
the Master Servicer shall have full power and authority, acting alone and/or
through Subservicers as provided in Section 3.02 hereof, subject to the terms
hereof (i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds (which, for the purpose of this Section, includes any Subsequent
Recoveries), and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan; provided that
the Master Servicer shall not take any action that is inconsistent with or
prejudices the interests of the Trust Fund or the Certificateholders in any
Mortgage Loan or the rights and interests of the Depositor, the Trustee and the
Certificateholders under this Agreement. The Master Servicer shall represent
and protect the interests of the Trust Fund in the same manner as it protects
its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan, and shall not make or
permit any modification, waiver or amendment of any Mortgage Loan which would
cause any REMIC created hereunder to fail to qualify as a REMIC or result in
the imposition of any tax under Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer, in its
own name or in the name of the Depositor and the Trustee, is hereby authorized
and empowered by the Depositor and the Trustee, when the Master Servicer
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Depositor, the Certificateholders or any of them,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer shall prepare and
deliver to the Depositor and/or the Trustee such documents requiring execution
and delivery by either or both of them as are necessary or appropriate to
enable the Master Servicer to service and administer the Mortgage Loans to the
extent that the Master Servicer is not permitted to execute and deliver such
documents pursuant to the preceding sentence. Upon receipt of such documents,
the Depositor and/or the Trustee shall execute such documents and deliver them
to the Master Servicer. The Master Servicer further is authorized and empowered
by the Trustee, on behalf of the Certificateholders and the Trustee, in its own
name or in the name of the Subservicer, when the Master Servicer or the
Subservicer, as the case may be, believes it appropriate in its best judgment
to register any Mortgage Loan on the MERS(R) System, or cause the removal from
the registration of any Mortgage Loan on the MERS(R) System, to execute and
deliver, on behalf of the Trustee and the Certificateholders or any of them,
any and all instruments of assignment and other comparable instruments with
respect to such assignment or re-recording of a Mortgage in the name of MERS,
solely as nominee for the Trustee and its successors and assigns.
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
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calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a Subservicer pursuant to a subservicing agreement; provided,
however, that such subservicing arrangement and the terms of the related
subservicing agreement must provide for the servicing of such Mortgage Loans in
a manner consistent with the servicing arrangements contemplated hereunder.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Master Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Master Servicer shall remain obligated and liable
to the Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from
the Subservicer and to the same extent and under the same terms and conditions
as if the Master Servicer alone were servicing and administering the Mortgage
Loans. All actions of each Subservicer performed pursuant to the related
subservicing agreement shall be performed as an agent of the Master Servicer
with the same force and effect as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments with respect to
the Mortgage Loans that are received by a Subservicer regardless of whether
such payments are remitted by the Subservicer to the Master Servicer.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of
the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. Neither the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
SECTION 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer
be the Master Servicer hereunder (including by reason of an Event of Default or
termination by the Depositor), the Trustee or its successor shall thereupon
assume all of the rights and obligations of the Master Servicer hereunder
arising thereafter (except that the Trustee shall not be (i) liable for losses
of the Master Servicer pursuant to Section 3.09 hereof or any acts or omissions
of the predecessor Master Servicer hereunder), (ii) obligated to make Advances
if it is prohibited from doing so by applicable law, (iii) obligated to
effectuate repurchases or substitutions of Mortgage Loans hereunder including,
but not limited to, repurchases or substitutions of Mortgage Loans pursuant to
Section 2.02 or 2.03 hereof, (iv) responsible for expenses of the Master
Servicer pursuant to Section 2.03 or (v) deemed to have made any
representations and warranties of the Master Servicer hereunder). Any such
assumption shall be subject to Section 7.02
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hereof. 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; the Pre-funding Account
the Capitalized Interest Account; the Supplemental
Interest Trust and the Corridor Contract Reserve
Fund; the Principal 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 any 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. The Master
Servicer shall not be required to institute or join in litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law.
(b) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit or cause to be deposited
no later than two Business Days after receipt (or, if the current long-term
credit rating of Countrywide is reduced below "A-" by S&P or Xxxxx, xx "X0" by
Xxxxx'x, the Master Servicer shall deposit or cause to be deposited on a daily
basis within one Business Day of receipt), except as otherwise specifically
provided herein, the following payments and collections remitted by
Subservicers or received by it in respect of Mortgage Loans subsequent to the
Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans on or before the Cut-off Date) and the following amounts
required to be deposited hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Master Servicing Fee and Prepayment Interest Excess;
(iii) all payments on account of Prepayment Charges on the Mortgage
Loans;
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(iv) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair
of the Mortgaged Property or released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures;
(v) any amount required to be deposited by the Master Servicer or the
Depositor pursuant to Section 3.05(e) in connection with any losses on
Permitted Investments for which it is responsible;
(vi) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.09(c) and in respect of net monthly rental income
from REO Property pursuant to Section 3.11 hereof;
(vii) all Substitution Adjustment Amounts;
(viii) all Advances made by the Master Servicer pursuant to Section
4.01; and
(ix) any other amounts required to be deposited hereunder.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause
funds to be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to such Mortgage Loan equal
to the amount of interest that has accrued on such Mortgage Loan from the
preceding Due 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 herein to the contrary notwithstanding. Such withdrawal or direction
may be accomplished by delivering written notice thereof to the Trustee or such
other institution maintaining the Certificate Account which describes the
amounts deposited in error in the Certificate Account. The Master Servicer
shall maintain adequate records with respect to all withdrawals made pursuant
to this Section. All funds deposited in the Certificate Account shall be held
in trust for the Certificateholders until withdrawn in accordance with Section
3.08.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.08(a)(ix);
(ii) any amount deposited by the Master Servicer or the Depositor
pursuant to Section 3.05(e) in connection with any losses on Permitted
Investments for which it is responsible; and
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(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee to withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in
the Distribution Account. All funds deposited in the Distribution Account shall
be held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08. In
no event shall the Trustee incur liability for withdrawals from the
Distribution Account at the direction of the Master Servicer.
(e) Each institution at which the Certificate Account, the
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 herein. The amount of any realized losses
in the Certificate Account or the Distribution Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Master Servicer in the Certificate Account or paid to the Trustee for deposit
into the Distribution Account, as applicable. The amount of any losses in the
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 Principal Reserve Fund, the Capitalized Interest Account or the
Pre-funding Account prior to any change thereof. The Supplemental Interest
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 Corridor
Contract 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
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conditions for such Supplemental Transfer Date set forth in Section 2.01(e),
with respect to the related Supplemental Transfer Agreement, the Trustee shall
pay to each Seller selling Supplemental Mortgage Loans to the Depositor on such
Supplemental Transfer Date the portion of the Aggregate Supplemental Transfer
Amount held in escrow pursuant to Section 2.01(e) as payment of the purchase
price for the Supplemental Mortgage Loans sold by such Seller. If at any time
the Depositor becomes aware that the Cut-off Date Stated Principal Balance of
Supplemental Mortgage Loans reflected on any Supplemental Transfer Agreement
exceeds the actual Cut-off Date Stated Principal Balance of the relevant
Supplemental Mortgage Loans, the Depositor may so notify the Trustee and the
Trustee shall redeposit into the 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 principal distributions to
(i) in the case of Loan Group 1 and Loan Group 2, the related Class PO
Certificates, to the extent of the related Remaining PO Pre-funded Amount and
to the other Classes of Senior Certificates, to the extent of the related
Remaining Non-PO Pre-funded Amount, as applicable and (ii) in the case of Loan
Group 3 and Loan Group 4, to the related Classes of Senior Certificates.
(h) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Capitalized Interest Account. On the Closing Date,
Countrywide shall remit the aggregate Capitalized Interest Requirement to the
Trustee for deposit in the Capitalized Interest Account. On each Distribution
Account Deposit Date related to a Funding Period Distribution Date, upon
satisfaction of the conditions for such Supplemental Transfer Date set forth in
Section 2.01(e), with respect to the related Supplemental Transfer Agreement
and Loan Group, the Trustee shall transfer from the Capitalized Interest
Account to the Distribution Account an amount equal to the related Capitalized
Interest Requirement (which, to the extent required, may include investment
earnings on amounts on deposit therein) with respect to the related amount
remaining in the Pre-funding Account for the related Distribution Date as
identified by Countrywide in the Supplemental Transfer Agreement.
If any funds remain in the Capitalized Interest Account at the
end of the Funding Period, the Trustee shall make the transfer described in
the preceding paragraph if necessary for the remaining Funding Period
Distribution Date and the Trustee shall distribute any remaining funds in the
Capitalized Interest Account to the order of the Depositor.
(i) On the Closing Date, there is hereby established a separate trust
(the "Supplemental Interest Trust"), the assets of which shall consist of the
Corridor Contract Reserve Fund and the Supplemental Interest Trustee's rights
and obligations under the Corridor Contract Assignment Agreement. The
Supplemental Interest Trust shall be maintained by the Supplemental Interest
Trustee, who initially, shall be the Trustee.
On the Closing Date, the Supplemental Interest Trustee shall
establish and maintain in its name, in trust for the benefit of the Holders of
the Covered Certificates, the Corridor Contract Reserve Fund, and shall deposit
$1,000 therein upon receipt from or on behalf of the Depositor of such amount.
All funds on deposit in the Corridor Contract Reserve Fund shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including without limitation, other moneys held by the Trustee pursuant to this
Agreement.
On each Distribution Date, the Supplemental Interest Trustee
shall deposit into the Corridor Contract Reserve Fund all amounts received in
respect of the Corridor Contracts for the related Interest Accrual Period.
The Supplemental Interest Trustee shall make withdrawals from the Corridor
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Contract Reserve Fund to make distributions pursuant to Section 4.09
exclusively (other than as expressly provided for in Section 3.08). Funds in
the Corridor Contract Reserve Fund shall not be invested.
(j) The Trustee shall establish and maintain, on behalf of the Class
P Certificateholders, a Principal Reserve Fund in the name of the Trustee. On
the Closing Date, the Depositor shall deposit into the Principal Reserve Fund
$100. Funds on deposit in the Principal Reserve Fund shall not be invested.
SECTION 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and maintain one
or more accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by the Master Servicer) for the
payment of taxes, assessments, hazard insurance premiums or comparable items
for the account of the Mortgagors. Nothing herein shall require the Master
Servicer to compel a Mortgagor to establish an Escrow Account in violation of
applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse the Master Servicer out of related collections for any payments made
pursuant to Sections 3.01 hereof (with respect to taxes and assessments and
insurance premiums) and 3.09 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums determined to be overages, to pay interest,
if required by law or the terms of the related Mortgage or Mortgage Note, to
Mortgagors on balances in the Escrow Account or to clear and terminate the
Escrow Account at the termination of this Agreement in accordance with Section
9.01 hereof. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in
Section 3.06(a) that are not timely paid by the Mortgagors on the date when the
tax, premium or other cost for which such payment is intended is due, but the
Master Servicer shall be required so to advance only to the extent that such
advances, in the good faith judgment of the Master Servicer, will be
recoverable by the Master Servicer out of Insurance Proceeds, Liquidation
Proceeds or otherwise.
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford each Seller, the Depositor and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but only
upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder and/or Certificate Owner which is a savings
and loan association, bank or insurance company certain reports and reasonable
access to information and documentation regarding the Mortgage Loans sufficient
to permit such Certificateholder and/or Certificate Owner to comply with
applicable regulations of the OTS or other regulatory authorities with respect
to investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred by the Master Servicer in providing such
reports and access.
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SECTION 3.08. Permitted Withdrawals from the Certificate Account, the
Distribution Account, the Corridor Contract Reserve
Fund and the Principal Reserve Fund.
(a) The Master Servicer may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not previously
retained by the Master Servicer) the servicing compensation to which it is
entitled pursuant to Section 3.14, and to pay to the Master Servicer, as
additional servicing compensation, earnings on or investment income with
respect to funds in or credited to the Certificate Account;
(ii) to reimburse each of the Master Servicer and the Trustee for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made;
(iii) to reimburse each of the Master Servicer and the Trustee for
any Nonrecoverable Advance previously made by it;
(iv) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master Servicer's right to reimbursement pursuant to this
clause (a) with respect to any Mortgage Loan being limited to amounts
received on such Mortgage Loan(s) which represent late recoveries of the
payments for which such advances were made pursuant to Section 3.01 or
Section 3.06 and (b) for unpaid Master Servicing Fees as provided in
Section 3.11 hereof;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.11, all amounts received thereon after the date of
such purchase;
(vii) to reimburse the Sellers, the Master Servicer or the Depositor
for expenses incurred by any of them and reimbursable pursuant to Section
6.03 hereof;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to
withdraw an amount equal to the sum of (a) the related Available Funds,
(b) the related Prepayment Charge Amount and (c) the applicable portion of
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 hereof.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee
an Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a
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Nonrecoverable Advance and identifying the related Mortgage Loans(s), and their
respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of any
taxes that it is authorized to withhold pursuant to the second to last
paragraph of Section 8.11). In addition, the Trustee may from time to time make
withdrawals from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution
Date;
(ii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds in the
Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein;
(iv) to reimburse the Trustee for any unreimbursed Advances made by
it pursuant to Section 4.01(b) hereof, such right of reimbursement
pursuant to this subclause (iv) being limited to (x) amounts received on
the related Mortgage Loan(s) in respect of which any such Advance was made
and (y) amounts not otherwise reimbursed to the Trustee pursuant to
Section 3.08(a)(ii) hereof;
(v) to reimburse the Trustee for any Nonrecoverable Advance
previously made by the Trustee pursuant to Section 4.01(b) hereof, such
right of reimbursement pursuant to this subclause (v) being limited to
amounts not otherwise reimbursed to the Trustee pursuant to Section
3.08(a)(iii) hereof; and
(vi) to clear and terminate the Distribution Account upon termination
of the Agreement pursuant to Section 9.01 hereof.
(c) The Supplemental Interest Trustee shall withdraw funds from the
Corridor Contract Reserve Fund for distribution to the Covered Certificates in
the manner specified in Section 4.09 (and to withhold from the amounts so
withdrawn the amount of any taxes that it is authorized to retain pursuant to
the second to last paragraph of Section 8.11). In addition, the Supplemental
Interest Trustee may from time to time make withdrawals from the Corridor
Contract Reserve Fund for the following purposes:
(i) to withdraw any amount deposited in the Corridor Contract
Reserve Fund and not required to be deposited therein; and
(ii) to clear and terminate the Corridor Contract Reserve Fund
upon the earlier of (i) the reduction of the aggregate Class
Certificate Balance of the Covered Certificates to zero, and (ii) the
termination of this Agreement pursuant to Section 9.01.
(d) On the Business Day before the Class P Principal Distribution
Date, the Trustee shall transfer from the Principal Reserve Fund to the
Distribution Account $100 and shall distribute such amount to the Class P
Certificates on the Class P Principal Distribution Date. Following the
distributions to be made in accordance with the preceding sentence, the Trustee
shall then terminate the Principal Reserve Fund.
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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 hereof. It is
understood and agreed that no earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage other than pursuant to such applicable laws and regulations as shall
at any time be in force and as shall require such additional insurance. If the
Mortgaged Property is located at the time of origination of the Mortgage Loan
in a federally designated special flood hazard area and such area is
participating in the national flood insurance program, the Master Servicer
shall cause flood insurance to be maintained with respect to such Mortgage
Loan. Such flood insurance shall be in an amount equal to the least of (i) the
outstanding principal balance of the related Mortgage Loan, (ii) the
replacement value of the improvements which are part of such Mortgaged
Property, and (iii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program.
(b) The Master Servicer shall not take any action which would result
in non-coverage under any applicable Primary Insurance Policy of any loss
which, but for the actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or refuse to renew any such
Primary Insurance Policy that is in effect at the date of the initial issuance
of the Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy is
maintained with a Qualified Insurer.
Except with respect to any Lender PMI Mortgage Loans, the Master
Servicer shall not be required to maintain any Primary Insurance Policy (i)
with respect to any Mortgage Loan with a Loan-to-Value Ratio less than or equal
to 80% as of any date of determination or, based on a new appraisal, the
principal balance of such Mortgage Loan represents 80% or less of the new
appraised value or (ii) if maintaining such Primary Insurance Policy is
prohibited by applicable law. With respect to the Lender PMI Mortgage Loans,
the Master Servicer shall maintain the Primary Insurance Policy for the life of
such Mortgage Loans, unless otherwise provided for in the related Mortgage Note
or prohibited by law.
The Master Servicer agrees to effect the timely payment of the
premiums on each Primary Insurance Policy, and such costs not otherwise
recoverable shall be recoverable by the Master Servicer from the related
proceeds of liquidation and Subsequent Recoveries.
(c) In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present on behalf of itself, the
Trustee and Certificateholders, claims to the insurer under any Primary
Insurance Policies and, in this regard, to take such reasonable action as shall
III-10
be necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Certificate Account.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of such conveyance, enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Master
Servicer is not required to exercise such rights with respect to a Mortgage
Loan if the Person to whom the related Mortgaged Property has been conveyed or
is proposed to be conveyed satisfies the terms and conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under such Mortgage Note or Mortgage is not otherwise so required under such
Mortgage Note or Mortgage as a condition to such transfer. In the event that
the Master Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any Required Insurance Policy would be adversely
affected, or if nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.10(b), to take or enter into an
assumption and modification agreement from or with the person to whom such
property has been or is about to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon, provided that the Mortgage
Loan shall continue to be covered (if so covered before the Master Servicer
enters such agreement) by the applicable Required Insurance Policies. The
Master Servicer, subject to Section 3.10(b), is also authorized with the prior
approval of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is substituted as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Master Servicer shall not be deemed to be in default under this
Section by reason of any transfer or assumption which the Master Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.10(a) hereof, in any case in which
a Mortgaged Property has been conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver or cause to be prepared and delivered to the
Trustee for signature and shall direct, in writing, the Trustee to execute the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to such Person. In connection with any such assumption, no material term of the
Mortgage Note may be changed. In addition, the substitute Mortgagor and the
Mortgaged Property must be acceptable to the Master Servicer in accordance with
its underwriting standards as then in effect. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Trustee for execution by it, the Master Servicer shall deliver an Officer's
Certificate signed by a Servicing Officer stating that the requirements of this
subsection have been met in connection therewith. The Master Servicer shall
notify the Trustee that any such substitution or assumption agreement has been
completed by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as
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all other documents and instruments constituting a part thereof. Any fee
collected by the Master Servicer for entering into an assumption or
substitution of liability agreement will be retained by the Master Servicer as
additional servicing compensation.
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts to foreclose
upon or otherwise comparably convert the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the Master Servicer shall
follow such practices and procedures as it shall deem necessary or advisable
and as shall be normal and usual in its general mortgage servicing activities
and meet the requirements of the insurer under any Required Insurance Policy;
provided, however, that the Master Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through the proceeds of liquidation of the Mortgage Loan and
Subsequent Recoveries (respecting which it shall have priority for purposes of
withdrawals from the Certificate Account). The Master Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the proceeds of liquidation of the Mortgage Loan and Subsequent
Recoveries with respect to the related Mortgaged Property, as provided in the
definition of Liquidation Proceeds. If the Master Servicer has knowledge that a
Mortgaged Property which the Master Servicer is contemplating acquiring in
foreclosure or by deed in lieu of foreclosure is located within a 1 mile radius
of any site listed in the Expenditure Plan for the Hazardous Substance Clean Up
Bond Act of 1984 or other site with environmental or hazardous waste risks
known to the Master Servicer, the Master Servicer will, prior to acquiring the
Mortgaged Property, consider such risks and only take action in accordance with
its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Master Servicer shall
ensure that the title to such REO Property references the Pooling and Servicing
Agreement and the Trustee's capacity thereunder. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall either itself or through an
agent selected by the Master Servicer protect and conserve such REO Property in
the same manner and to such extent as is customary in the locality where such
REO Property is located and may, incident to its conservation and protection of
the interests of the Certificateholders, rent the same, or any part thereof, as
the Master Servicer deems to be in the best interest of the Certificateholders
for the period prior to the sale of such REO Property. The Master Servicer
shall prepare for and deliver to the Trustee a statement with respect to each
REO Property that has been rented showing the aggregate rental income received
and all expenses incurred in connection with the maintenance of such REO
Property at such times as is necessary to enable the Trustee to comply with the
reporting requirements of the REMIC Provisions. The net monthly rental income,
if any, from such REO Property shall be deposited in the Certificate Account no
later than the close of business on each Determination Date. The Master
Servicer shall perform the tax reporting and withholding required by Sections
1445 and 6050J of the Code with respect to foreclosures and abandonments, the
tax reporting required by Section 6050H of the Code with respect to the receipt
of mortgage interest from individuals and any tax reporting required by Section
6050P of the Code with respect to the cancellation of indebtedness by certain
financial entities, by
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preparing such tax and information returns as may be required, in the form
required, and delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property as
soon as practicable in a manner that maximizes the Liquidation Proceeds
thereof, but in no event later than three years after its acquisition by the
Trust Fund. In that event, the Trustee shall have been supplied with an Opinion
of Counsel to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to a three-year period, if applicable, will not result in
the imposition of taxes on "prohibited transactions" of any REMIC hereunder as
defined in section 860F of the Code or cause any REMIC hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding, the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel) after the expiration of such three-year
period. Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Trust Fund shall be rented (or allowed to continue to
be rented) or otherwise used for the production of income by or on behalf of
the Trust Fund in such a manner or pursuant to any terms that would (i) cause
such Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC hereunder
to the imposition of any federal, state or local income taxes on the income
earned from such Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless the Master Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of a
deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer will cause compliance with the provisions of
Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary
to assure that no withholding tax obligation arises with respect to the
proceeds of such foreclosure except to the extent, if any, that proceeds of
such foreclosure are required to be remitted to the obligors on such Mortgage
Loan.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of
bringing such a proceeding. The income earned from the management of any REO
Properties, net of reimbursement to the Master Servicer for expenses incurred
(including any property or other taxes) in connection with such management and
net of unreimbursed 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
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Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fifth, as a recovery of
principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by the Master Servicer as
additional servicing compensation pursuant to Section 3.14.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan which is 151
days or more delinquent at a price equal to the Purchase Price; provided,
however, that the Master Servicer may only exercise this right on or before the
next to the last day of the calendar month in which such Mortgage Loan became
151 days delinquent (such month, the "Eligible Repurchase Month"); provided
further, that any such Mortgage Loan which becomes current but thereafter
becomes delinquent may be purchased by the Master Servicer pursuant to this
Section in any ensuing Eligible Repurchase Month. The Purchase Price for any
Mortgage Loan purchased hereunder shall be deposited in the Certificate Account
and the Trustee, upon receipt of a certificate from the Master Servicer in the
form of Exhibit N hereto, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment prepared by the purchaser of
such Mortgage Loan, in each case without recourse, as shall be necessary to
vest in the purchaser of such Mortgage Loan any Mortgage Loan released pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all the
Trustee's right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an assignment
outright and not for security. The purchaser of such Mortgage Loan shall
thereupon own such Mortgage Loan, and all security and documents, free of any
further obligation to the Trustee or the Certificateholders with respect
thereto.
(b) Countrywide may agree to a modification of any Mortgage Loan (the
"Modified Mortgage Loan") if (i) the modification is in lieu of a refinancing
and (ii) the Mortgage Rate on the Modified Mortgage Loan is approximately a
prevailing market rate for newly-originated mortgage loans having similar terms
and (iii) Countrywide purchases the Modified Mortgage Loan from the Trust Fund
as described below. Effective immediately after the modification, and, in any
event, on the same Business Day on which the modification occurs, all interest
of the Trustee in the Modified Mortgage Loan shall automatically be deemed
transferred and assigned to Countrywide and all benefits and burdens of
ownership thereof, including the right to accrued interest thereon from the
date of modification and the risk of default thereon, shall pass to
Countrywide. The Master Servicer shall promptly deliver to the Trustee a
certification of a Servicing Officer to the effect that all requirements of
this paragraph have been satisfied with respect to the Modified Mortgage Loan.
For federal income tax purposes, the Trustee shall account for such purchase as
a prepayment in full of the Modified Mortgage Loan.
Countrywide shall remit the Purchase Price for any Modified Mortgage
Loan to the Master Servicer for deposit into 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). The Master
Servicer shall have no right of
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reimbursement for any amount paid pursuant to the foregoing indemnification,
except to the extent that the amount of any tax, interest, and penalties,
together with interest thereon, is refunded to the Trust Fund or Countrywide.
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit N. Upon receipt of such request, the
Trustee shall promptly release the related Mortgage File to the Master
Servicer, and the Trustee shall at the Master Servicer's direction execute and
deliver to the Master Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage in each case provided by the Master
Servicer, together with the Mortgage Note with written evidence of cancellation
thereon. The Master Servicer is authorized to cause the removal from the
registration on the MERS System of such Mortgage and to execute and deliver, on
behalf of the Trustee and the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation or of partial or full release.
Expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor. From time to time
and as shall be appropriate for the servicing or foreclosure of any Mortgage
Loan, including for such purpose, collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the purposes
of effecting a partial release of any Mortgaged Property from the lien of the
Mortgage or the making of any corrections to the Mortgage Note or the Mortgage
or any of the other documents included in the Mortgage File, the Trustee shall,
upon delivery to the Trustee of a Request for Release in the form of Exhibit M
signed by a Servicing Officer, release the Mortgage File to the Master
Servicer. Subject to the further limitations set forth below, the Master
Servicer shall cause the Mortgage File or documents so released to be returned
to the Trustee when the need therefor by the Master Servicer no longer exists,
unless the Mortgage Loan is liquidated and the proceeds thereof are deposited
in the Certificate Account, in which case the Master Servicer shall deliver to
the Trustee a Request for Release in the form of Exhibit N, signed by a
Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
SECTION 3.13. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or which otherwise
are collected by the Master Servicer as Liquidation Proceeds, Insurance
Proceeds or Subsequent Recoveries in respect of any Mortgage Loan. All Mortgage
Files and funds collected or held by, or under the control of, the Master
Servicer in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds and any Subsequent
Recoveries, including but not limited to, any funds on deposit in the
Certificate Account, shall be held by the Master Servicer for and on behalf of
the Trustee
III-15
and shall be and remain the sole and exclusive property of the Trustee, subject
to the applicable provisions of this Agreement. The Master Servicer also agrees
that it shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Certificate Account, Distribution Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage
File or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Master Servicer shall be entitled to set off against and
deduct from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
SECTION 3.14. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer
shall be entitled to retain or withdraw from the Certificate Account an amount
equal to the Master Servicing Fee; provided, that the aggregate Master
Servicing Fee with respect to any Distribution Date shall be reduced (i) by an
amount equal to the aggregate of the Prepayment Interest Shortfalls on all of
the Mortgage Loans, if any, with respect to such Distribution Date, but not to
exceed the Compensating Interest for such Distribution Date, and (ii) with
respect to the first Distribution Date, an amount equal to any amount to be
deposited into the Distribution Account by the Depositor pursuant to Section
2.01(a) and not so deposited.
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 on funds
in the Certificate Account and Distribution Account shall be retained by the
Master Servicer to the extent not required to be deposited in the Certificate
Account pursuant to Section 3.05 hereof. The Master Servicer shall be required
to pay all expenses incurred by it in connection with its master servicing
activities hereunder (including payment of any premiums for hazard insurance
and any Primary Insurance Policy and maintenance of the other forms of
insurance coverage required by this Agreement) and shall not be entitled to
reimbursement therefor except as specifically provided in this Agreement.
SECTION 3.15. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders and/or Certificate Owners
and the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices designated by the Master Servicer.
Nothing in this Section shall limit the obligation of the Master Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Master Servicer to provide access as provided
in this Section as a result of such obligation shall not constitute a breach of
this Section.
SECTION 3.16. Annual Statement as to Compliance.
(a) The Master Servicer shall deliver to the Depositor and the
Trustee on or before March 15 of each year, commencing with its 2007 fiscal
year, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of the Master Servicer during the preceding calendar
year (or applicable portion thereof) and of the performance of the Master
Servicer under this Agreement has been made under such officer's supervision
and (ii) to the best of such officer's knowledge, based on such review, the
Master Servicer has fulfilled all its obligations under this Agreement in all
material respects throughout such year (or applicable portion thereof), or, if
there has been a failure to fulfill any such
III-16
obligation in any material respect, specifying each such failure known to such
officer and the nature and status thereof.
(b) The Master Servicer shall cause each Subservicer to deliver to
the Depositor and the Trustee on or before March 15 of each year, commencing
with its 2007 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of such Subservicer during the
preceding calendar year (or applicable portion thereof) and of the performance
of the Subservicer under the applicable Subservicing Agreement or primary
servicing agreement, has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, such Subservicer
has fulfilled all its obligations under the applicable Subservicing Agreement
or primary servicing agreement, in all material respects throughout such year
(or applicable portion thereof), or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known to
such officer and the nature and status thereof.
(c) The Trustee shall forward a copy of each such statement to each
Rating Agency.
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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.
SECTION 3.18. The Corridor Contracts.
Countrywide shall assign all of its right, title and interest in and
to the Corridor Contracts to, and shall cause all of its obligations in respect
of such transactions to be assumed by, the Supplemental Interest Trustee on
behalf of the Supplemental Interest Trust, on the terms and conditions set
forth in the Corridor Contract Assignment Agreement. The Corridor Contracts
will not be assets of the Trust Fund or of any REMIC. The Master Servicer, on
behalf of the Supplemental Interest Trustee, shall cause to be deposited any
amounts received from time to time with respect to each Corridor Contract into
the Corridor Contract Reserve Fund.
The Master Servicer, on behalf of the Supplemental Interest Trustee,
shall prepare and deliver any notices required to be delivered under each
Corridor Contract.
The Master Servicer, on behalf of the Supplemental Interest Trustee,
shall act as calculation agent and/or shall terminate each Corridor Contract,
upon the occurrence of certain events of default or termination events to the
extent specified in such Corridor Contract. Upon any such termination, the
related Corridor Contract Counterparty will be obligated to pay the
Supplemental Interest Trustee, for the benefit of the Supplemental Interest
Trust, an amount in respect of such termination. Any amounts received by the
Supplemental Interest Trustee in respect of the termination of a Corridor
Contract shall be deposited and held in the Corridor Contract Reserve Fund and
applied on future Distribution Dates to pay the Yield Supplement Amount on the
related Class of Covered Certificates.
SECTION 3.19. Prepayment Charges.
(a) Notwithstanding anything in this Agreement to the contrary, in
the event of a Principal Prepayment in full or in part of a Mortgage Loan, the
Master Servicer may not waive any Prepayment Charge or portion thereof required
by the terms of the related Mortgage Note unless (i) such Mortgage Loan is in
default or the Master Servicer believes that such a default is imminent, and
the Master Servicer determines that such waiver would maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value of
such Prepayment Charge, or (ii) (A) the enforceability thereof is limited (1)
by bankruptcy, insolvency, moratorium, receivership, or other similar law
relating to creditors' rights generally or (2) due to acceleration in
connection with a foreclosure or other involuntary payment, or (B) the
enforceability is otherwise limited or prohibited by applicable law. In the
event of a Principal Prepayment in full or in part with respect to any Mortgage
Loan, the Master Servicer shall deliver to the Trustee an Officer's Certificate
substantially in the form of Exhibit T no later than the third Business Day
following the immediately succeeding Determination Date with a copy to the
Class P Certificateholders. If the Master Servicer has waived or does not
collect all or a portion of a Prepayment Charge relating to a Principal
Prepayment in full or in part due to any action or omission of the Master
Servicer, other than as provided above, the Master Servicer shall deliver to
the Trustee, together with the Principal Prepayment in full or in part, the
amount of such Prepayment Charge (or such portion thereof as
III-18
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 in the Prepayment Charge
Schedule (including the attached prepayment charge summary) is complete and
accurate in all material respects at the dates as of which the information is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms under applicable state law, except as the
enforceability thereof is limited due to acceleration in connection with a
foreclosure or other involuntary payment.
(d) Upon discovery by the Master Servicer or a Responsible Officer of
the Trustee of a breach of the foregoing clause (c) that materially and
adversely affects right of the Holders of the Class P Certificates to any
Prepayment Charge, the party discovering the breach shall give prompt written
notice to the other parties. Within 60 days of the earlier of discovery by the
Master Servicer or receipt of notice by the Master Servicer of breach, the
Master Servicer shall cure the breach in all material respects or shall pay
into the Certificate Account the amount of the Prepayment Charge that would
otherwise be due from the Mortgagor, less any amount representing such
Prepayment Charge previously collected and paid by the Master Servicer into the
Certificate Account.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.
(a) The Master Servicer shall determine on or before each Master
Servicer Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master Servicer Advance Date, either (i)
deposit into the Certificate Account an amount equal to the Advance or (ii)
make an appropriate entry in its records relating to the Certificate Account
that any Amount Held for Future Distribution for the applicable Loan Group 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.
(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
IV-1
the related Master Servicer Advance Date an Officer's Certificate of a
Servicing Officer indicating the amount of any proposed Advance determined by
the Master Servicer to be a Nonrecoverable Advance.
SECTION 4.02. Priorities of Distribution.
(a) (1) With respect to Available Funds for Loan Group 1, on each
Distribution Date, the Trustee shall withdraw such Available Funds from the
Distribution Account and apply such funds to distributions on the specified
Classes of Group 1 Senior Certificates in the following order and priority and,
in each case, to the extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 1 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount with respect to the Group 1 Certificates that would
have been distributed in the absence of such shortfall, provided that
prior to an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 4.02(a)(1)(iii);
(iii) [Reserved];
(iv) to each Class of Group 1 Senior Certificates, concurrently, as
follows:
(x) to the Class PO-1 Certificates, the related PO Formula
Principal Amount, until the Class Certificate Balance thereof is
reduced to zero; and
(y) the related Non-PO Formula Principal Amount, up to the
amount of the Group 1 and Group 2 Senior Principal Distribution
Amount for Loan Group 1 for such Distribution Date, in the following
order of priority:
(1) to the Class A-R Certificates, until its Class Certificate
Balance is reduced to zero;
(2) concurrently, to the Class 1-A-4 and Class 1-A-5
Certificates, pro rata, the Priority Amount, until their
respective Class Certificate Balances are reduced to zero;
(3) in an amount up to $1,000 on each Distribution Date,
concurrently, to the Class 1-A-2 and Class 1-A-6 Certificates,
pro rata, until their respective Class Certificate Balances are
reduced to zero;
(4) in an amount up to $785,000 on each Distribution Date, to
the Class 1-A-1 Certificates, until its Class Certificate
Balance is reduced to zero;
(5) concurrently, to the Class 1-A-2 and Class 1-A-6
Certificates, pro rata, until their respective Class Certificate
Balances are reduced to zero;
(6) sequentially, to the Class 1-A-1 and Class 1-A-8
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero; and
(7) concurrently, to the Class 1-A-4 and Class 1-A-5
Certificates, pro rata, without regard to the Priority Amount,
until their respective Class Certificate Balances are reduced to
zero; and
IV-2
(v) to the Class PO-1 Certificates, any related Class PO
Deferred Amount, up to an amount not to exceed the amount calculated
pursuant to clause (A) of the definition of the Group 1 and Group 2
Subordinated Principal Distribution Amount for Loan Group 1 actually
received or advanced for such Distribution Date (with such amount to
be allocated first from amounts calculated pursuant to (A)(i), then
(ii), and then (iii) of the definition of Group 1 and Group 2
Subordinated Principal Distribution Amount).
(2) With respect to the Available Funds for Loan Group 2 on each
Distribution Date, the Trustee shall withdraw such Available Funds from the
Distribution Account and apply such funds to distributions on the specified
Classes of Group 2 Senior Certificates in the following order and priority,
and in each case, to the extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 2 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount with respect to the Group 2 Certificates that would
have been distributed in the absence of such shortfall, provided that
prior to an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 4.02(a)(2)(iii);
(iii) [Reserved]
(iv) to each Class of Group 2 Senior Certificates, concurrently as
follows:
(x) to the Class PO-2 Certificates, the related PO Formula
Principal Amount, until the Class Certificate Balance thereof is
reduced to zero; and
(y) the related Non-PO Formula Principal Amount, up to the
amount of the Group 1 and Group 2 Senior Principal Distribution
Amount for Loan Group 2 for such Distribution Date, concurrently, to
the Class 2-A-1 and Class 2-A-2 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero; and
(v) to the Class PO-2 Certificates, any related Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant to
clause (A) of the definition of the Group 1 and Group 2 Subordinated
Principal Distribution Amount for Loan Group 2 actually received or
advanced for such Distribution Date (with such amount to be allocated
first from amounts calculated pursuant to (A)(i) and (ii) then (iii) of
the definition Group 1 and Group 2 of Subordinated Principal Distribution
Amount).
(3) With respect to the Available Funds for Loan Group 3 on each
Distribution Date, the Trustee shall withdraw such Available Funds from the
Distribution Account and apply such funds to distributions on the specified
Classes of Group 3 Senior Certificates in the following order and priority, and
in each case, to the extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 3
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount with respect to the Group
3 Certificates that would have been
IV-3
distributed in the absence of such shortfall, provided that prior to
an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 4.02(a)(3)(iii);
(iii) [Reserved]
(iv) to each Class of Group 3 Senior Certificates, concurrently
as follows:
(x) [Reserved]
(y) the related Principal Amount, up to the amount of the
Group 3 and Group 4 Senior Principal Distribution Amount for Loan
Group 3 for such Distribution Date, to the Class 3-A-1
Certificates, until its Class Certificate Balance is reduced to
zero; and
(v) to the Class PO-1 and Class PO-2 Certificates, pro rata, to
the extent of any Class PO Deferred Amounts remaining, up to an
amount not to exceed the amount calculated pursuant to clause (A) of
the definition of the Group 3 and Group 4 Subordinated Principal
Distribution Amount for Loan Group 3 actually received or advanced
for such Distribution Date (with such amount to be allocated first
from amounts calculated pursuant to (A)(i), then (ii), and then (iii)
of the definition of Group 3 and Group 4 Subordinated Principal
Distribution Amount).
(4) With respect to the Available Funds for Loan Group 4 on each
Distribution Date, the Trustee shall withdraw such Available Funds from the
Distribution Account and apply such funds to distributions on the specified
Classes of Group 4 Senior Certificates in the following order and priority, and
in each case, to the extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 4
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount with respect to the Group
4 Certificates that would have been distributed in the absence of
such shortfall, provided that prior to an Accrual Termination Date,
the related Accrual Amount shall be distributed as provided in
Section 4.02(a)(4)(iii);
(iii) [Reserved]
(iv) to each Class of Group 4 Senior Certificates, concurrently
as follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Group 3 and Group 4 Senior Principal Distribution Amount for Loan
Group 4 for such Distribution Date, to the Class 4-A-1
Certificates, until its Class Certificate Balance is reduced to
zero; and
(v) to the Class PO-1 and Class PO-2 Certificates, pro rata, to
the extent of any Class PO Deferred Amounts remaining, up to an
amount not to exceed the amount calculated pursuant to clause (A) of
the definition of the Group 3 and Group 4 Subordinated Principal
Distribution Amount for Loan Group 4 actually received or advanced
for such Distribution Date (with such amount to be allocated first
from amounts calculated pursuant to (A)(i), then (ii), and then (iii)
of the definition of Group 3 and Group 4 Subordinated Principal
Distribution Amount).
IV-4
(5) On each Distribution Date, after making the distributions
described in Section 4.02(a)(1), Section 4.02(a)(2), Section 4.02(a)(3) and
Section 4.02(a)(4) above, Available Funds from each Loan Group will be
distributed to the Senior Certificates to the extent provided in Section 4.05
hereof.
(6) On each Distribution Date, Available Funds from all of the Loan
Groups remaining after making the distributions described in Sections
4.02(a)(1), 4.02(a)(2), 4.02(a)(3), 4.02(a)(4) and 4.02(a)(5) above, will be
distributed to the Subordinated Certificates and the Class A-R Certificates in
the following order and priority and, in each case, to the extent of such funds
remaining:
(A) to the Class M Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(B) to the Class M Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(C) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(D) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(E) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(F) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(G) to the Class B-3 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(H) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(I) to the Class B-4 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(J) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
IV-5
(K) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(L) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero; and
(M) to the Class A-R Certificates, any remaining funds
(other than the $100 held in trust for the Class P
Certificates) in the Trust Fund.
On each Distribution Date, the Prepayment Charge Amount will be
distributed to the holders of the Class P Certificates. On the Class P
Principal Distribution Date, the $100 held in trust for the Class P
Certificates will be distributed to the holders of the Class P Certificates.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Class Certificate Balance or Component
Balance, as applicable, of the related Class PO Certificates.
With respect to Loan Group 1 and Loan Group 2, on any Distribution
Date, to the extent the Amount Available for Senior Principal for a Loan
Group is insufficient to make the full distribution required to be made
pursuant to the applicable subclauses (iv)(x) above, (A) the amount
distributable on the applicable Class PO Certificates in respect of principal
pursuant to such subclause (iv)(x), shall be equal to the product of (1) the
Amount Available for Senior Principal for such Loan Group and (2) a fraction,
the numerator of which is the related PO Formula Principal Amount and the
denominator of which is the sum of such PO Formula Principal Amount and the
applicable Senior Principal Distribution Amount and (B) the amount
distributable on the related Senior Certificates, other than the applicable
Class PO Certificates, in respect of principal pursuant to such clause
(iv)(y) shall be equal to the product of (1) such Amount Available for Senior
Principal and (2) a fraction, the numerator of which is the applicable Senior
Principal Distribution Amount and the denominator of which is the sum of such
Senior Principal Distribution Amount and the related PO Formula Principal
Amount.
(b) On each Distribution Date prior to and including the applicable
Accrual Termination Date with respect to each Class or Component of Accrual
Certificates, the Accrual Amount for such Class or Component for such
Distribution Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to such Class or
Component of Accrual Certificates, but shall instead be added to the related
Class Certificate Balance of such Class on the related Distribution Date. With
respect to any Distribution Date prior to and including the applicable Accrual
Termination Date on which principal payments on any Class or Component of
Accrual Certificates are distributed pursuant to Section 4.02(a)(1)(iv)(y),
Section 4.02(a)(2)(iv)(y), Section 4.02(a)(3)(iv)(y) or Section
4.02(a)(4)(iv)(y), as applicable, the related Accrual Amount shall be deemed to
have been added on such Distribution Date to the related Class Certificate
Balance or Component Balance (and included in the amount distributable on the
related Class or Classes or Component of Accretion Directed Certificates
pursuant to Section 4.02(a)(1)(iii), Section 4.02(a)(2)(iii), Section
4.02(a)(3)(iii) or Section 4.02(a)(4)(iii), as applicable, for such
Distribution Date) and the related distribution thereon shall be deemed to have
been applied concurrently towards the reduction of all or a portion of the
amount so added and, to the extent of any excess, towards the reduction of the
Class Certificate Balance or Component Balance of such Class or Component of
Accrual Certificates immediately prior to such Distribution Date.
Notwithstanding any such distribution, each such Class or Component shall
continue to be a Class of Accrual Certificates on each subsequent Distribution
Date until the applicable Accrual Termination Date.
IV-6
(c) On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth in
Section 4.02(a)(1)(iv)(y), the portion of Available Funds for Loan Group 1
available to be distributed as principal of the Senior Certificates (other than
the related Class of Class PO Certificates) for Loan Group 1, shall be
distributed concurrently, as principal, on such Classes, pro rata, on the basis
of their respective Class Certificate Balances, until the Class Certificate
Balances thereof are reduced to zero.
(d) On each Distribution Date, the amount referred to in clause (i)
of the definition of Class Optimal Interest Distribution Amount for each Class
of Certificates for such Distribution Date shall be reduced for each Class of
Senior Certificates of a Senior Certificate Group and each Class of
Subordinated Certificates by (i) the related Class' pro rata share of Net
Prepayment Interest Shortfalls for such Loan Group based (x) with respect to a
Class of Senior Certificates, on the related Class Optimal Interest
Distribution Amount and (y) with respect to the Class of Subordinated
Certificates on or prior to the third Senior Termination Date on the Assumed
Interest Amount and after the third Senior Termination Date, the related Class'
Class Optimal Interest Distribution Amount for such Distribution Date, without
taking into account such Net Prepayment Interest Shortfalls, and (ii) the
related Class' Allocable Share of the interest portion of the related Debt
Service Reduction and each Relief Act Reduction for the Mortgage Loans in the
related Loan Group (or, after the Senior Credit Support Depletion Date, any
Mortgage Loan) incurred during the calendar month preceding the month of such
Distribution Date.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a)(6), if, on any Distribution Date, with respect to any Class of
Subordinated Certificates (other than the Subordinated Certificates then
outstanding with the highest priority of distribution), the sum of the related
Class Subordination Percentages of such Class and of all Classes of
Subordinated Certificates which have a higher numerical Class designation than
such Class (the "Applicable Credit Support Percentage") is less than the
Original Applicable Credit Support Percentage for such Class, no distribution
of Principal Prepayments will be made to any such Classes (the "Restricted
Classes") and the amount of such Principal Prepayments otherwise distributable
to the Restricted Classes shall be distributed to any Classes of Subordinated
Certificates having lower numerical Class designations than such Class, pro
rata, based on their respective Class Certificate Balances immediately prior to
such Distribution Date and shall be distributed in the sequential order
provided in Section 4.02(a)(6).
(f) If the amount of a Realized Loss on a Mortgage Loan in a Loan
Group has been reduced by application of Subsequent Recoveries with respect to
such Mortgage Loan, the amount of such Subsequent Recoveries will be applied
sequentially, in the order of payment priority, to increase the Class
Certificate Balance of each related Class of Certificates to which Realized
Losses have been allocated, but in each case by not more than the amount of
Realized Losses previously allocated to that Class of Certificates pursuant to
Section 4.04. Holders of such Certificates will not be entitled to any payment
in respect of the Class Optimal Interest Distribution Amount on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be applied pro rata to
the Certificate Balance of each Certificate of such Class.
SECTION 4.03. [Reserved].
SECTION 4.04. Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall
determine the total amount of Realized Losses with respect to the related
Distribution Date. For purposes of allocating losses to the Subordinated
Certificates, the Class M Certificates will be deemed to have a lower numerical
Class designation, and to be of a higher relative payment priority, than any
other Class of Subordinated Certificates.
IV-7
Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(i) the applicable PO Percentage of any Realized Loss on a Mortgage
Loan in Loan Group 1 and Loan Group 2 shall be allocated to the related
Class of Class PO Certificates, until the respective Class Certificate
Balance thereof is reduced to zero; and
(ii) (x) the applicable Non-PO Percentage of any Realized Loss on a
Mortgage Loan in Loan Group 1 and Loan Group 2 and (y) the amount of any
Realized Loss on a Mortgage Loan in Loan Group 3 and Loan Group 4 shall be
allocated first to the Subordinated Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Subordinated Certificates then outstanding with the highest numerical
Class designation) until the respective Class Certificate Balance of each
such Class is reduced to zero, and second to the Classes of Certificates
of the related Senior Certificate Group (other than any Notional Amount
Certificates, if applicable, and the Class PO Certificates), pro rata, on
the basis of their respective Class Certificate Balances or, in the case
of any Class of Accrual Certificates or Accrual Component, on the basis of
the lesser of its respective Class Certificate Balance or Component
Balance, as applicable, and its respective initial Class Certificate
Balance or Component Balance, as applicable, in each case immediately
prior to the related Distribution Date, until the respective Class
Certificate Balance or Component Balance of each such Class or Component
is reduced to zero; provided, however, that the Non-PO Percentage of any
Realized Losses on the Mortgage Loans in Loan Group 1 that would otherwise
be allocable to the Class 1-A-4 Certificates will instead be allocated to
the Class 1-A-5 Certificates, until its Class Certificate Balance is
reduced to zero and the Non-PO Percentage of any Realized Losses on the
Mortgage Loans in Loan Group 2 that would otherwise be allocable to the
Class 2-A-1 Certificates will instead be allocated to the Class 2-A-2
Certificates, until its Class Certificate Balance is reduced to zero.
(b) The Class Certificate Balance of the Subordinated Certificates
then outstanding with the highest numerical Class designation shall be reduced
on each Distribution Date by the sum of (i) the amount of any payments on the
Class PO Certificates in respect of Class PO Deferred Amounts and (ii) the
amount, if any, by which the aggregate of the Class Certificate Balances of all
outstanding Classes of Certificates (after giving effect to the distribution of
principal and the allocation of Realized Losses and Class PO Deferred Amounts
on such Distribution Date) exceeds the Pool Stated Principal Balance for the
following Distribution Date.
(c) Any Realized Losses allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 4.04(a) above shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or to any
Component or any reduction in the Certificate Balance or Component Balance of a
Certificate or Component, pursuant to Section 4.04(a) above shall be
accomplished by reducing the Certificate Balance or Component Balance thereof,
as applicable, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance" or
"Component Balance," as the case may be.
SECTION 4.05. Cross-Collateralization; Adjustments to Available
Funds.
(a) On each Distribution Date after the first Senior Termination Date
but prior to the earlier of the Senior Credit Support Depletion Date and the
third Senior Termination Date, the Trustee shall distribute (i) in the event
the Group 1 Senior Certificates or the Group 2 Senior Certificates are paid in
full, the Non-PO Formula Principal Amount for the Loan Group relating to the
Senior Certificate Group that will have been paid in full and (ii) in the event
the Group 3 Senior Certificates or the Group 4
IV-8
Senior Certificates are paid in full, the Principal Amount for the Loan Group
relating to the Senior Certificate Group that will have been paid in full, to
the remaining Senior Certificate Groups, other than the related Class of Class
PO Certificates, if any, pro rata, based on their respective Class Certificate
Balances.
(b) If on any Distribution Date the Class Certificate Balance of
Senior Certificates in a Certificate Group (other than the related Class of
Class PO Certificates, if any) is greater than the (i) in the case of Loan
Group 1 and Loan Group 2, aggregate of the Non-PO Percentages of the Stated
Principal Balance of the Mortgage Loans in the related Loan Group and (ii) in
the case of Loan Group 3 and Loan Group 4, the aggregate Stated Principal
Balance of the Mortgage Loans in that Loan Group (the "Undercollateralized
Group"), then the Trustee shall reduce the Available Funds of the other Loan
Group that are not undercollateralized (the "Overcollateralized Group"), as
follows:
(1) to add to the Available Funds of the Undercollateralized Group an
amount equal to the Available Funds of the Overcollateralized Group
remaining after making distributions to the Senior Certificates of the
Overcollateralized Group on such Distribution Date pursuant to Section
4.02; and
(2) to the Senior Certificates of the Undercollateralized Group, to
the extent of the principal portion of Available Funds of the
Overcollateralized Group remaining after making distributions to the
Senior Certificates of the Overcollateralized Group on such
Distribution Date pursuant to Section 4.02, until the Class Certificate
Balance of the Senior Certificates of such Undercollateralized Group
equals (i) in the case of Loan Group 1 and Loan Group 2, the aggregate
of the Non-PO Percentages of the Stated Principal Balance of the
Mortgage Loans in the related Loan Group and (ii) in the case of Loan
Group 3 and Loan Group 4, the aggregate Stated Principal Balance of the
Mortgage Loans in that Loan Group.
If more than one Overcollateralized Group exists on any Distribution
Date, reductions in the Available Funds of such groups to make the payments
required to be made pursuant to this Section 4.05(b) on such Distribution
Date shall be made pro rata, based on the amount of remaining Available Funds
for each such Overcollateralized Loan Group. If more than one
Undercollateralized Group exists on any Distribution Date, the payments
required to be made pursuant to this Section 4.05 on such Distribution Date
shall be made pro rata, based on the amount of payments required to be made
to the Undercollateralized Groups.
SECTION 4.06. Monthly Statements to Certificateholders.
(a) Concurrently with each distribution on a Distribution Date, the
Trustee will forward by electronic delivery 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 hereto.
(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.
IV-9
(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) on Exhibit U aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time
to time in effect.
SECTION 4.07. Determination of Pass-Through Rates for COFI
Certificates.
The Pass-Through Rate for each Class of COFI Certificates for each
Interest Accrual Period after the initial Interest Accrual Period shall be
determined by the Trustee as provided below on the basis of the Index and the
applicable formulae appearing in footnotes corresponding to the COFI
Certificates in the table relating to the Certificates in the Preliminary
Statement.
Except as provided below, with respect to each Interest Accrual
Period following the initial Interest Accrual Period, the Trustee shall not
later than two Business Days prior to such Interest Accrual Period but
following the publication of the applicable Index determine the Pass-Through
Rate at which interest shall accrue in respect of the COFI Certificates during
the related Interest Accrual Period.
Except as provided below, the Index to be used in determining the
respective Pass-Through Rates for the COFI Certificates for a particular
Interest Accrual Period shall be COFI for the second calendar month preceding
the Outside Reference Date for such Interest Accrual Period. If at the Outside
Reference Date for any Interest Accrual Period, COFI for the second calendar
month preceding such Outside Reference Date has not been published, the Trustee
shall use COFI for the third calendar month preceding such Outside Reference
Date. If COFI for neither the second nor third calendar months preceding any
Outside Reference Date has been published on or before the related Outside
Reference Date, the Index for such Interest Accrual Period and for all
subsequent Interest Accrual Periods shall be the National Cost of Funds Index
for the third calendar month preceding such Interest Accrual Period (or the
fourth preceding calendar month if such National Cost of Funds Index for the
third preceding calendar month has not been published by such Outside Reference
Date). In the event that the National Cost of Funds Index for neither the third
nor fourth calendar months preceding an Interest Accrual Period has been
published on or before the related Outside Reference Date, then for such
Interest Accrual Period and for each succeeding Interest Accrual Period, the
Index shall be LIBOR, determined in the manner set forth below.
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.
IV-10
The establishment of LIBOR and each Pass-Through Rate for the COFI
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
SECTION 4.08. Determination of Pass-Through Rates for LIBOR
Certificates.
(a) On each Interest Determination Date so long as any LIBOR
Certificates are outstanding, the Trustee will determine LIBOR on the basis of
the British Bankers' Association ("BBA") "Interest Settlement Rate" for
one-month deposits in U.S. dollars as quoted on the Bloomberg Terminal as of
each LIBOR Determination Date.
(b) If on any Interest Determination Date, LIBOR cannot be determined
as provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London time)
on such Interest Determination Date or (ii) in lieu of making any such request,
rely on such Reference Bank quotations that appear at such time on the Reuters
Screen LIBO Page (as defined in the International Swap Dealers Association Inc.
Code of Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition),
to the extent available. LIBOR for the next Interest Accrual Period will be
established by the Trustee on each Interest Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next applicable Interest
Accrual Period shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the Reserve
Interest Rate. The "Reserve Interest Rate" shall be the rate per annum
which the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/32%) of the
one-month United States dollar lending rates that New York City banks
selected by the Trustee are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two of the
Reference Banks to which such quotations are, in the opinion of the
Trustee, being so made, or (ii) in the event that the Trustee can
determine no such arithmetic mean, the lowest one-month United States
dollar lending rate which New York City banks selected by the Trustee are
quoting on such Interest Determination Date to leading European banks.
(iii) If on any Interest Determination Date the Trustee is required
but is unable to determine the Reserve Interest Rate in the manner
provided in paragraph (b) above, LIBOR for the related Classes of
Certificates shall be LIBOR as determined on the preceding applicable
Interest Determination Date. If on the initial LIBOR Determination Date
the Trustee is required but unable to determine LIBOR in the manner
provided above, LIBOR for the next Interest Accrual Period shall be 5.38%.
Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each Interest Determination Date. The
Master Servicer initially shall designate the Reference Banks. Each
"Reference Bank" shall be a leading bank engaged in transactions in
Eurodollar deposits in the international Eurocurrency market, shall not
control, be controlled by, or be under common control with, the Trustee
IV-11
and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the Master
Servicer should terminate its appointment as Reference Bank, the Trustee shall
promptly appoint or cause to be appointed another Reference Bank. The Trustee
shall have no liability or responsibility to any Person for (i) the selection
of any Reference Bank for purposes of determining LIBOR or (ii) any inability
to retain at least four Reference Banks which is caused by circumstances beyond
its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Trustee on each
Interest Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Trustee may conclusively rely and shall be protected in relying upon the
offered quotations (whether written, oral or on the Dow Xxxxx Markets) from the
BBA designated banks, the Reference Banks or the New York City banks as to
LIBOR, the Interest Settlement Rate or the Reserve Interest Rate, as
appropriate, in effect from time to time. The Trustee shall not have any
liability or responsibility to any Person for (i) the Trustee's selection of
New York City banks for purposes of determining any Reserve Interest Rate or
(ii) its inability, following a good-faith reasonable effort, to obtain such
quotations from, the BBA designated banks, the Reference Banks or the New York
City banks or to determine such arithmetic mean, all as provided for in this
Section 4.08.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
SECTION 4.09. Distributions from the Corridor Contract Reserve Fund.
(a) On each Distribution Date on or prior to the earlier of (i) each
Corridor Contract Scheduled Termination Date and (ii) the date on which the
Class Certificate Balance of the related Class of Covered Certificates is
reduced to zero, amounts on deposit in the Corridor Contract Reserve Fund from
the applicable Corridor Contract will be withdrawn therefrom and distributed to
the related Class of Covered Certificates to the extent needed to pay any
related Yield Supplement Amount of the Class 1-A-2 and Class 1-A-6
Certificates, as applicable, for such Distribution Date.
(b) Any amounts remaining in the Corridor Contract Reserve Fund after
the earlier of (i) the date on which the aggregate Class Certificate Balance of
the Covered Certificates has been reduced to zero and (ii) the latest Corridor
Contract Scheduled Termination Date, will be distributed to the Underwriter.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor,
if (i) such Holder has so notified the Trustee at least five Business Days
prior to the related Record Date and (ii) such Holder shall hold (A) a Notional
Amount Certificate, (B) 100% of the Class Certificate Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first class
mail to such Certificateholder at the address of such holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the countersignature and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless countersigned by the Trustee by manual signature, and
such countersignature upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.06 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration
of transfer of any Certificate, the Trustee shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same Class and aggregate Percentage Interest.
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
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Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially the
forms set forth in Exhibit J-2 (the "Transferor Certificate") and (i) deliver a
letter in substantially the form of either Exhibit K (the "Investment Letter")
or 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 Securities Act. The
Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by
Rule 144A. The Trustee and the Master Servicer shall cooperate with the
Depositor in providing the Rule 144A information referenced in the preceding
sentence, including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor, the Sellers and the Master Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit K or Exhibit
L-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 a Plan or (y) in the case of a
Certificate that is an ERISA-Restricted Certificate and that has been the
subject of an ERISA-Qualifying Underwriting, a representation that the
transferee is an insurance company which is purchasing such Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60 or
(ii) in the case of any ERISA-Restricted Certificate presented for registration
in the name of a Plan, an Opinion of Counsel satisfactory to the Trustee, which
Opinion of Counsel shall not be an expense of either the Trustee, the Master
Servicer or the Trust Fund, addressed to
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the Trustee and the Master Servicer, to the effect that the purchase and
holding of such ERISA-Restricted Certificate will not result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and will not subject the Trustee or the Master Servicer to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Residual Certificate, in the event the representation
letter or Opinion of Counsel referred to in the preceding sentence is not so
furnished, one of the representations in clause (i), as appropriate, shall be
deemed to have been made to the Trustee by the transferee's (including an
initial acquiror's) acceptance of the ERISA-Restricted Certificate.
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA-Restricted Certificate to or on behalf of a Plan without the delivery
to the Trustee of an Opinion of Counsel satisfactory to the Trustee as
described above shall be void and of no effect.
No transfer of a Covered Certificate (other than a transfer of a
Covered Certificate to an affiliate of the Depositor (either directly or
through a nominee) in connection with the initial issuance of the Certificates)
shall be made unless the Trustee shall have received a representation letter
from the transferee of such Covered Certificate substantially in the form of
Exhibit L-2 to the effect that (i) such transferee is not a Plan, or (ii) that
the purchase and holding of the Covered Certificate satisfies the requirements
for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX
96-23 or a similar exemption. In the event that such a representation letter is
not delivered, one of the foregoing representations, as appropriate, shall be
deemed to have been made by the transferee's (including an initial acquiror's)
acceptance of the Covered Certificate. In the event that such representation is
violated, such transfer or acquisition shall be void and of no effect.
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 or transfer of any ERISA-Restricted Certificate or Covered
Certificate that is in fact not permitted by this Section 5.02(b) or for making
any payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered by the Trustee in accordance with the
foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(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 hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a
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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 provided to the Trustee a
certificate substantially in the form attached hereto as Exhibit J-1
stating that it has no knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter, if
required. The Trustee shall be entitled but not obligated to recover from
any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as
it became other than a Permitted Transferee, all payments made on such
Residual Certificate at and after either such time. Any such payments so
recovered by the Trustee shall be paid and delivered by the Trustee to the
last preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Master
Servicer or any Seller, to the effect that the elimination of such restrictions
will not cause any REMIC hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax on
the Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Residual Certificate hereby consents to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer 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
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on the books of the Depository shall be governed by applicable rules
established by the Depository; (iv) the Depository may collect its usual and
customary fees, charges and expenses from its Depository Participants; (v) the
Trustee shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Trustee may rely and
shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and
persons shown on the books of such indirect participating firms as direct or
indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Depositor is unable to locate a qualified successor or (y) after the
occurrence of an Event of Default, Certificate Owners representing at least
51% of the Certificate Balance of the Book-Entry Certificates together advise
the Trustee and the Depository through the Depository Participants in writing
that the continuation of a book-entry system through the Depository is no
longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners, through the Depository, of the occurrence of
any such event and of the availability of definitive, fully-registered
Certificates (the "Definitive Certificates") to Certificate Owners requesting
the same. Upon surrender to the Trustee of the related Class of Certificates
by the Depository, accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither
the Master Servicer, the Depositor nor the Trustee shall be liable for any
delay in delivery of such instruction and each may conclusively rely on, and
shall be protected in relying on, such instructions. The Master Servicer
shall provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Master Servicer and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 5.03, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute
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complete and indefeasible evidence of ownership, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer
or the Trustee may treat the Person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer, the Trustee nor any agent of the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders and/or Certificate Owners (a)
request such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose
to transmit, or if the Depositor or Master Servicer shall request such
information in writing from the Trustee, then the Trustee shall, within ten
Business Days after the receipt of such request, (x) provide the Depositor, the
Master Servicer or such Certificateholders and/or Certificate Owners at such
recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any, and (y) assist the Depositor, the
Master Servicer or such Certificateholders and/or Certificate Owners at such
recipients' expense with obtaining from the Depository a list of the related
Depository Participants acting on behalf of Certificate Owners of Book Entry
Certificates. The Depositor and every Certificateholder and Certificate Owner,
by receiving and holding a Certificate or beneficial interest therein, agree
that the Trustee shall not be held accountable by reason of the disclosure of
any such information as to the list of the Certificateholders and/or Depository
Participants hereunder, regardless of the source from which such information
was derived.
SECTION 5.06. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates may
be surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor will keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. The Master Servicer will keep in effect its
existence, rights and franchises as a limited partnership under the laws of the
United States or under the laws of one of the states thereof and will obtain
and preserve its qualification or registration to do business as a foreign
partnership in each jurisdiction in which such qualification or registration is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party,
or any person succeeding to the business of the Depositor or the Master
Servicer, shall be the successor of the Depositor or the Master Servicer, as
the case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person to the Master Servicer shall be qualified to service mortgage loans on
behalf of FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation,
at least 15 calendar days prior to the effective date of any merger or
consolidation of the Master Servicer, the Master Servicer shall provide (x)
written notice to the Depositor of any successor pursuant to this Section and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to a replacement Master Servicer.
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers,
the Master Servicer and Others.
None of the Depositor, the Master Servicer or any Seller or any of
the directors, officers, employees or agents of the Depositor, the Master
Servicer or any Seller shall be under any liability to the Certificateholders
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor, the Master Servicer, any
Seller or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Master Servicer or any Seller
or any such Person from any liability which would otherwise be imposed by
reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Master Servicer, each Seller and any
director, officer, employee or agent of the Depositor, the Master Servicer or
each Seller may rely in good faith on
VI-1
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, each Seller and any director, officer, employee or agent of the
Depositor, the Master Servicer or any Seller shall be indemnified by the Trust
Fund and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement or
the Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. None of the Depositor,
the Master Servicer or any Seller shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Master Servicer or
any Seller may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties
of the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and each Seller shall be
entitled to be reimbursed therefor out of the Certificate Account.
SECTION 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrade or withdrawal of the
rating of any of the Certificates or (b) upon determination that its duties
hereunder are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No 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 hereunder
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.
VI-2
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment required to be made under the
terms of this Agreement, which failure shall continue unremedied for five
days after the date upon which written notice of such failure shall have
been given to the Master Servicer by the Trustee or the Depositor or to
the Master Servicer and the Trustee by the Holders of Certificates having
not less than 25% of the Voting Rights evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer contained in this Agreement (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 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
(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 the
VII-1
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 hereof whether or not the obligations of
the Master Servicer have been terminated pursuant to this Section. The Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee of all cash amounts which shall at the
time be credited to the Certificate Account, or thereafter be received with
respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of
any late collection of a Scheduled Payment on a Mortgage Loan which was due
prior to the notice terminating such Master Servicer's rights and obligations
as Master Servicer hereunder and received after such notice, that portion
thereof to which such Master Servicer would have been entitled pursuant to
Sections 3.08(a)(i) through (viii), and any other amounts payable to such
Master Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
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 hereof, the Trustee shall, subject to and
to the extent provided in Section 3.04, be the successor to the Master Servicer
in its capacity as master servicer under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and applicable law including the
obligation to make Advances pursuant to Section 4.01. As compensation therefor,
the Trustee shall be entitled to all funds relating to the Mortgage Loans that
the Master Servicer would have been entitled to charge to the Certificate
Account or Distribution Account if the Master Servicer had continued to act
hereunder. Notwithstanding the foregoing, if the Trustee has become the
successor to the Master Servicer in accordance with Section 7.01 hereof, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 hereof or if it
is otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
the appointment of which does not adversely affect the then current rating of
the Certificates, by each Rating Agency as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder. Any successor to the Master
Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least
$15,000,000, and which is willing to service the Mortgage Loans and (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 hereof incurred prior to termination of the Master Servicer under
Section 7.01), with like effect as if originally named as a party to this
Agreement; and provided further that each Rating Agency acknowledges that its
rating of the Certificates in effect immediately prior to such assignment and
delegation will not be qualified or reduced, as a result of such assignment and
delegation and (ii) provides to the Depositor in writing fifteen days prior to
the effective date of such appointment and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to a replacement master servicer. The Trustee shall
provide written notice to the Depositor of such successor pursuant to this
Section. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee, unless the Trustee is prohibited by law from so acting, shall,
subject to Section 3.04 hereof, act in such capacity as hereinabove provided.
In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of the 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 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
VII-3
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, or (ii) the predecessor Master Servicer shall cooperate with the
successor Master Servicer either (x) in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
successor Master Servicer or (y) in causing MERS to designate on the MERS(R)
System the successor Master Servicer as the servicer of such Mortgage Loan. The
predecessor Master Servicer shall file or cause to be filed any such assignment
in the appropriate recording office. The successor Master Servicer shall cause
such assignment to be delivered to the Trustee promptly upon receipt of the
original with evidence of recording thereon or a copy certified by the public
recording office in which such assignment was recorded.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
VII-4
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) unless an Event of Default known to the Trustee shall have
occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the Trustee and the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be finally proven that the Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under
this Agreement; and
(iv) without in any way limiting the provisions of this Section 8.01
or Section 8.02 hereof, the Trustee shall be entitled to rely conclusively
on the information delivered to it by the Master Servicer in a Trustee
Advance Notice in determining whether it is required to make an Advance
under Section 4.01(b), shall have no responsibility to ascertain or
confirm any information contained in any Trustee Advance Notice, and shall
have no obligation to make any Advance under Section 4.01(b) in the
absence of a Trustee Advance Notice or actual knowledge
VIII-1
of a Responsible Officer of the Trustee that (A) such Advance was not made
by the Master Servicer and (B) such Advance is not a Nonrecoverable
Advance.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties and the Trustee
shall have no responsibility to ascertain or confirm the genuineness of
any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing not less than 25% of the Voting Rights
allocated to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not assured
to it;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which may be
incurred therein or thereby.
VIII-2
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or a Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the MERS
System other than with respect to the Trustee's execution and counter-signature
of the Certificates. The Trustee shall not be accountable for the use or
application by the Depositor or the Master Servicer of any funds paid to the
Depositor or the Master Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor or the Master
Servicer.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Distribution Account on each Distribution Date an
amount equal to the Trustee Fee for such Distribution Date. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified by the
Master Servicer and held harmless against any loss, liability or expense
(including reasonable attorney's fees) (i) incurred in connection with any
claim or legal action relating to (a) this Agreement, (b) the Certificates or
(c) in connection with the performance of any of the Trustee's duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the Master Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Trustee hereunder. Without limiting the foregoing, the Master
Servicer covenants and agrees, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any such expense, disbursement or
advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that the
Trustee must engage such persons to perform acts or services hereunder and (C)
printing and engraving expenses in connection with preparing any Definitive
Certificates. Except as otherwise provided herein, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, Tax
Matters Person or Paying Agent hereunder or for any other expenses.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating which would not cause either of the Rating Agencies to reduce or
withdraw their respective then current ratings of the Certificates (or having
provided such security from time to time as is sufficient to avoid such
reduction) as evidenced in writing by each Rating Agency. If such corporation
or association publishes reports of
VIII-3
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07 hereof. The entity serving as Trustee may have
normal banking and trust relationships with the Depositor and its affiliates or
the Master Servicer and its affiliates; provided, however, that such entity
cannot be an affiliate of the Master Servicer other than the Trustee in its
role as successor to the Master Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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 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, (B) the imposition of such tax would be
avoided by the appointment of a different trustee and (C) the Trustee fails to
indemnify the Trust Fund against such tax 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, 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 or the Master Servicer, or in the case of clause (iv), the
Depositor, may remove the Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the Trustee, one copy of which shall be delivered to the Master Servicer and
one copy 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, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered by the successor Trustee to the Master Servicer, one
complete set to the Trustee so removed, one complete set to the successor so
appointed and one complete set to the Depositor, together with a written
description of the basis of such removal. Notice of any removal of the Trustee
shall be given to each Rating Agency by the successor trustee.
VIII-4
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The Depositor, the Master Servicer and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties, and
obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 hereof, its appointment shall
not adversely affect the then current rating of the Certificates and such
successor trustee 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 all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 8.06 hereof without the execution or filing of
any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
As a condition to the effectiveness of any merger or
consolidation, at least 15 calendar days prior to the effective date of any
merger or consolidation of the Trustee, the Trustee shall provide (x) written
notice to the Depositor of any successor pursuant to this Section and (y) in
writing and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
replacement Trustee.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or
VIII-5
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Master Servicer and the
Trustee may consider necessary or desirable. If the Master Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable Trust Fund
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder and such appointment
shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(iv) The Master Servicer, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and indemnification
to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided 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
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shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
SECTION 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC
election is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent
(and the Trustee is hereby appointed to act as agent) on behalf of any such
REMIC and that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to any such REMIC, containing such information and at the times and in
the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue Service,
on Forms 8811 or as otherwise may be required by the Code, the name, title,
address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make
or cause to be made elections that such assets be treated as a REMIC on the
federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a
Person that is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax); (f) to the extent that they are
under its control conduct matters relating to such assets at all times that any
Certificates are outstanding so as to maintain the status as a REMIC under the
REMIC Provisions; (g) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the tax status of any
REMIC; (h) pay, from the sources specified in the second to last paragraph of
this Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any such REMIC prior to its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to any such REMIC,
including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at such intervals as may be required by the Code, as may be necessary to
prepare the foregoing returns, schedules, statements or information; and (k) as
and when necessary and appropriate, represent any such REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any
VIII-7
statute of limitations relating to any tax item of any such REMIC, and
otherwise act on behalf of any such REMIC in relation to any tax matter or
controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of
any REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c)
of the Code, on any contribution to any REMIC hereunder after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, without limitation, any minimum tax imposed upon any REMIC hereunder
pursuant to Sections 23153 and 24874 of the California Revenue and Taxation
Code, if not paid as otherwise provided for herein, such tax shall be paid by
(i) the Trustee, if any such other tax arises out of or results from a breach
by the Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises out of or
results from a breach by the Master Servicer or a Seller of any of their
obligations under this Agreement, (iii) any Seller, if any such tax arises out
of or results from that Seller's obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in the event
that the Trustee, the Master Servicer or any Seller fails to honor its
obligations under the preceding clauses (i),(ii) or (iii), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 3.08(b).
The Trustee shall treat the Corridor Contract Reserve Fund as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that
is owned by the Underwriter, and that is not an asset of the Trust Fund or any
REMIC created hereunder. The Trustee shall treat the rights of the Holders of
the Covered Certificates to receive payments from the Corridor Contract Reserve
Fund as rights in an interest rate corridor contract written by the Corridor
Contract Counterparty. Thus, the Covered Certificates shall be treated as
representing ownership of not only a Master REMIC regular interest, but also
ownership of an interest in an interest rate corridor contract. For purposes of
determining the issue price of the Master REMIC regular interest, the Trustee
shall assume that the Corridor Contracts entered into by the applicable
Corridor Contract Counterparty in respect of the Class 1-A-2 and Class 1-A-6
Certificates have a value of $84,500 and $88,000, respectively.
SECTION 8.12. Monitoring of Significance Percentage.
With respect to each Distribution Date, the Trustee shall calculate
the "significance percentage" (as defined in Item 1115 of Regulation AB) of
each derivative instrument, if any, based on the aggregate Class Certificate
Balance of the related Classes of Covered Certificates for such derivative
instrument and Distribution Date (after all distributions to be made thereon on
such Distribution Date) and based on the methodology provided in writing by or
on behalf of Countrywide no later than the fifth Business Day preceding such
Distribution 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
VIII-8
"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...
VIII-9
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all
Mortgage Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Sellers, the Master Servicer and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of (a) the purchase
by the Master Servicer of all Mortgage Loans (and REO Properties) remaining in
the Trust Fund at the price equal to the sum of (i) 100% of the Stated
Principal Balance of each Mortgage Loan plus one month's accrued interest
thereon at the applicable Adjusted Mortgage Rate, (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property, and (iii) any
remaining unpaid costs and damages incurred by the Trust Fund that arises out
of an actual violation of any predatory or abusive lending law or regulation,
in all cases plus accrued and unpaid interest thereon at the applicable
Adjusted Mortgage Rate and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii)
the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement. In no event shall the trusts
created hereby continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date.
The Master Servicer shall have the right to purchase all Mortgage
Loans and REO Properties in the Trust Fund pursuant to clause (a) in the
preceding paragraph of this Section 9.01 only on or after the date on which the
Pool Stated Principal Balance, at the time of any such repurchase, is less than
or equal to ten percent (10%) of the Cut-off Date Pool Principal Balance.
SECTION 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Certificate Account, the Master Servicer
shall direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.01, at least 20 days prior to the date
notice is to be mailed to the affected Certificateholders, the Master Servicer
shall notify the Depositor and the Trustee of the date the Master Servicer
intends to terminate the Trust Fund and of the applicable repurchase price of
the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month next preceding the month of
such final distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office
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therein specified. The Master Servicer will give such notice to each Rating
Agency at the time such notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause
all funds in the Certificate Account to be remitted to the Trustee for deposit
in the Distribution Account on or before the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the Master Servicer the Mortgage Files for
the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, the Certificate Balance thereof plus (a) accrued
interest thereon (or on their Notional Amount, if applicable) in the case of an
interest bearing Certificate and (b) any Class PO Deferred Amounts in the case
of any Class PO Certificates, and (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account (other
than the amounts retained to meet claims) after application pursuant to clause
(i) above. Notwithstanding the reduction of the Class Certificate Balance of
any Class of Certificates to zero, such Class will be outstanding hereunder
(solely for the purpose of receiving distributions and not for any other
purpose) until the termination of the respective obligations and
responsibilities of the Depositor, each Seller, the Master Servicer and the
Trustee hereunder in accordance with Article IX.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation then, the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Trust Fund which remain subject hereto.
The Supplemental Interest Trust shall terminate on the earlier of (i)
the Corridor Contract Scheduled Termination Date and (ii) the date on which the
aggregate Class Certificate Balance of the Covered Certificates is reduced to
zero.
SECTION 9.03. Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied
with an Opinion of Counsel, at the expense of the Master Servicer, to the
effect that the failure to comply with the requirements of this Section 9.03
will not (i) result in the imposition of taxes on "prohibited transactions" on
any REMIC as defined in section 860F of the Code, or (ii) cause any REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Master Servicer under Section
9.02, the Master Servicer shall prepare and the Trustee, at the
expense of the "tax matters person," shall adopt a
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plan of complete liquidation within the meaning of section
860F(a)(4) of the Code which, as evidenced by an Opinion of
Counsel (which opinion shall not be an expense of the Trustee or
the Tax Matters Person), meets the requirements of a qualified
liquidation; and
(2) Within 90 days after the time of adoption of such a
plan of complete liquidation, the Trustee shall sell all of the
assets of the Trust Fund to the Master Servicer for cash in
accordance with Section 9.01.
(b) The Trustee, as agent for any REMIC created under this Agreement,
hereby agrees to adopt and sign such a plan of complete liquidation upon the
written request of the Master Servicer, and the receipt of the Opinion of
Counsel referred to in Section 9.03(a)(1) and to take such other action in
connection therewith as may be reasonably requested by the Master Servicer.
(c) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Master Servicer to prepare and the Trustee to adopt and
sign a plan of complete liquidation.
IX-3
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 herein or to supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to conform this
Agreement to the Prospectus and Prospectus Supplement provided to investors in
connection with the initial offering of the Certificates, (iv) to add to the
duties of the Depositor, any Seller or the Master Servicer, (v) to modify,
alter, amend, add to or rescind any of the terms or provisions contained in
this Agreement to comply with any rules or regulations promulgated by the
Securities and Exchange Commission from time to time, (vi) to add any other
provisions with respect to matters or questions arising hereunder or (vii) to
modify, alter, amend, add to or rescind any of the terms or provisions
contained in this Agreement; provided that any action pursuant to clauses (vi)
or (vii) above shall not, as evidenced by an Opinion of Counsel (which Opinion
of Counsel shall not be an expense of the Trustee or the Trust Fund), adversely
affect in any material respect the interests of any Certificateholder;
provided, however, that the amendment shall not be deemed to adversely affect
in any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. Notwithstanding the
foregoing, no amendment that significantly changes the permitted activities of
the trust created by this Agreement may be made without the consent of a
Majority in Interest of each Class of Certificates affected by such amendment.
Each party to this Agreement hereby agrees that it will cooperate with each
other party in amending this Agreement pursuant to clause (v) above. The
Trustee, each Seller, the Depositor and the Master Servicer also may at any
time and from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of
any REMIC as a REMIC under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on any REMIC pursuant to the Code that would be a claim
at any time prior to the final redemption of the Certificates or (iii) comply
with any other requirements of the Code, provided that the Trustee has been
provided an Opinion of Counsel, which opinion shall be an expense of the party
requesting such opinion but in any case shall not be an expense of the Trustee
or the Trust Fund, to the effect that such action is necessary or helpful to,
as applicable, (i) maintain such qualification, (ii) avoid or minimize the risk
of the imposition of such a tax or (iii) comply with any such requirements of
the Code.
This Agreement may also be amended from time to time by the
Depositor, each Seller, the Master Servicer and the Trustee with the consent of
the Holders of a Majority in Interest of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Certificate without the
consent of the Holder of such 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.
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Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any REMIC or the Certificateholders or cause any REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
SECTION 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon direction by the Trustee accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
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
X-2
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of any Seller or the Depositor, as the case may be, or if for any
other reason this Agreement or any Supplemental Transfer Agreement is held or
deemed to create a security interest in either such assets, then (i) this
Agreement or any Supplemental Transfer Agreement shall be deemed to be a
security agreement (within the meaning of the Uniform Commercial Code of the
State of New York) with respect to all such assets and security interests and
(ii) the conveyances provided for in this Agreement or any Supplemental
Transfer Agreement shall be deemed to be an assignment and a grant pursuant to
the terms of this Agreement (i) by each Seller to the Depositor or (ii) by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
Each Seller and the Depositor for the benefit of the
Certificateholders shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Trust Fund, such security interest would
be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest granted or
assigned to the Trustee for the benefit of the Certificateholders.
(b) The Depositor hereby represents that:
(i) This Agreement creates a valid and continuing security interest
(as defined in the Uniform Commercial Code as enacted in the State of New
York (the "NY UCC")) in the Mortgage Notes in favor of the Trustee, which
security interest is prior to all other liens, and is enforceable as such
as against creditors of and purchasers from the Depositor.
(ii) The Mortgage Notes constitutes "instruments" within the meaning
of the NY UCC.
(iii) Immediately prior to the assignment of each Mortgage Loan to
the Trustee, the Depositor owns and has good and marketable title to such
Mortgage Loan free and clear of any lien, claim or encumbrance of any
Person.
(iv) The Depositor has received all consents and approvals required
by the terms of the Mortgage Loans to the sale of the Mortgage Loans
hereunder to the Trustee.
(v) All original executed copies of each Mortgage Note that are
required to be delivered to the Trustee pursuant to Section 2.01 have been
delivered to the Trustee.
(vi) Other than the security interest granted to the Trustee pursuant
to this Agreement, the Depositor has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Mortgage Loans.
The Depositor has not authorized the filing of and is not aware of any
financing statements against the Depositor that include a description of
collateral covering the Mortgage Loans other than any financing statement
relating to the security interest granted to the Trustee hereunder or that
has been terminated. The Depositor is not aware of any judgment or tax
lien filings against the Depositor.
(c) The Master Servicer shall take such action as is reasonably
necessary to maintain the perfection and priority of the security interest of
the Trustee in the Mortgage Loans; provided, however, that the obligation to
deliver the Mortgage File to the Trustee pursuant to Section 2.01 shall be
solely the Depositor's obligation and the Master Servicer shall not be
responsible for the safekeeping of the Mortgage Files by the Trustee.
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(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;
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 thereof.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.16;
3. Each annual independent public accountants' servicing report
described in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered by first class mail,
by courier or by facsimile transmission to (1) in the case of the Depositor,
CWALT, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number:
(000) 000-0000, Attention: 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:
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(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, 0X, Xxx Xxxx, Xxx Xxxx 00000, facsimile
number: (000) 000-0000, Attention: Mortgage-Backed Securities Group, CWALT,
Inc. Series 2006-J5, or such other address as the Trustee may hereafter furnish
to the Depositor or Master Servicer, and (8) in the case of the Rating
Agencies, the address specified therefor in the definition corresponding to the
name of such Rating Agency. Notices to Certificateholders shall be deemed given
when mailed, first class postage prepaid, to their respective addresses
appearing in the Certificate Register.
SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
X-5
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Agreement, except in the
manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 10.08,
each and every Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of the
Depositor or the Trustee during the Master Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Master Servicer relating to the Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by the Depositor or the Trustee and to discuss its
affairs, finances and accounts relating to the Mortgage Loans with its
officers, employees and independent public accountants (and by this provision
the Master Servicer hereby authorizes said accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Depositor or the Trustee of any right under
this Section 10.09 shall be borne by the party requesting such inspection; all
other such expenses shall be borne by the Master Servicer or the related
Subservicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trustee pursuant to this Agreement, are and shall be deemed
fully paid.
SECTION 10.11. [Reserved].
SECTION 10.12. Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the securitization that is the subject of this Agreement, the Trust Fund
created by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell assets;
or
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
X-6
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.
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 Report and, to the
extent delivered to the Trustee, no later than 10 days following the
Distribution Date, such other information identified by the Depositor or the
Master Servicer, in writing, to be filed with the Commission (such other
information, the "Additional Designated Information"). If the Depositor or
Master Servicer directs that any Additional Designated Information is to be
filed with any Form 10-D, the Depositor or Master Servicer, as the case may be,
shall specify the Item on Form 10-D to which such information is responsive
and, with respect to any Exhibit to be filed on Form 10-D, the Exhibit number.
Any information to be filed on Form 10-D shall be delivered to the Trustee in
XXXXX-compatible form or as otherwise agreed upon by the Trustee and the
Depositor or the Master Servicer, as the case may be, at the Depositor's
expense, and any necessary conversion to XXXXX-compatible format will be at the
Depositor's expense. At the reasonable request of, and in accordance with the
reasonable directions of, the Depositor or the Master Servicer, subject to the
two preceding sentences, the Trustee shall prepare for filing and file an
amendment to any Form 10-D previously filed with the Commission with respect to
the Trust Fund. The Master Servicer shall sign the Form 10-D filed on behalf of
the Trust Fund.
(b) No later than each Distribution Date, each of the Master Servicer
and the Trustee shall notify (and the Master Servicer shall cause any
Subservicer to notify) the Depositor and the Master Servicer of any Form 10-D
Disclosure Item, together with a description of any such Form 10-D Disclosure
Item in form and substance reasonably acceptable to the Depositor. In addition
to such information as the Master Servicer and the Trustee are obligated to
provide pursuant to other provisions of this Agreement, if so requested by the
Depositor, each of the Master Servicer and the Trustee shall provide such
information which is available to the Master Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Master Servicer) as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB. Such information shall be provided concurrently with the
delivering 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
XI-1
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 or the Depositor 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 the transfer of Supplemental Mortgage Loans, if any,
Countrywide shall notify the Depositor and the Master Servicer, if any material
pool characteristic of the actual asset pool at the time of issuance of the
Certificates differs by 5% or more (other than as a result of the pool assets
converting into cash in accordance with their terms) from the description of
the asset pool in the Prospectus Supplement.
SECTION 11.04. Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such earlier
date as may be required by the Exchange Act), the Depositor shall prepare and
file on behalf of the Trust Fund a Form 10-K, in form and substance as required
by the Exchange Act. A senior officer in charge of the servicing function of
the Master Servicer shall sign each Form 10-K filed on behalf of the Trust
Fund. Such Form 10-K shall include as exhibits each (i) annual compliance
statement described under Section 3.16, (ii) annual report on assessments of
compliance with servicing criteria described under Section 11.07 and (iii)
accountant's report described under Section 11.07. Each Form 10-K shall also
include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as
described in Section 11.05.
If the Item 1119 Parties listed on Exhibit X have changed since the
Closing Date, no later than March 1 of each year, the Master Servicer shall
provide each of the Master Servicer (and the Master Servicer shall provide any
Subservicer) and the Trustee with an updated Exhibit X setting forth the Item
1119 Parties. No later than March 15 of each year, commencing in 2007, the
Master Servicer and the Trustee shall notify (and the Master Servicer shall
cause any Subservicer to notify) the Depositor and the Master Servicer of any
Form 10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the Depositor.
Additionally, each of the Master Servicer and the Trustee shall provide, and
shall cause each Reporting Subcontractor retained by the Master Servicer or the
Trustee, as applicable, and in the case of the Master Servicer shall cause each
Subservicer, to provide, the following information no later than March 15 of
each year in which a Form 10-K is required to be filed on behalf of the Trust
Fund: (i) if such Person's report on assessment of compliance with servicing
criteria described under Section 11.07 or related registered public accounting
firm attestation report described under Section 11.07 identifies any material
instance of noncompliance, notification of such instance of noncompliance and
(ii) if any such Person's report on assessment of compliance with the servicing
criteria or related registered public accounting firm attestation report is not
provided to be filed as an exhibit to such Form 10-K, information detailing the
explanation why such report is not included.
SECTION 11.05. Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the
XI-2
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission's staff)). No later than March 15 of each year, beginning in 2007,
the Master Servicer and the Trustee shall (unless such person is the Certifying
Person), and the Master Servicer shall cause each Subservicer 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.
SECTION 11.07. Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2007:
(1) Each of the Master Servicer and the Trustee shall deliver to the
Depositor and the Master Servicer a report (in form and substance
reasonably satisfactory to the Depositor) regarding the Master
Servicer's or the Trustee's, as applicable, assessment of compliance
with the Servicing Criteria during the immediately preceding calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB. Such report shall be signed by an
authorized officer of such Person and shall address each of the
Servicing Criteria 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
XI-3
Regulation S-X under the Securities Act and the Exchange Act,
including, without limitation that in the event that an overall
opinion cannot be expressed, such registered public accounting firm
shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not
contain restricted use language. To the extent any of the Servicing
Criteria are not applicable to such Person, with respect to
asset-backed securities transactions taken as a whole involving such
Person and that are backed by the same asset type backing the
Certificates, such report shall include such a statement that that
effect.
(3) The Master Servicer shall cause each Subservicer and each
Reporting Subcontractor to deliver to the Depositor an assessment of
compliance and accountant's attestation as and when provided in
paragraphs (a) and (b) of this Section 11.07.
(4) The Trustee shall cause each Reporting Subcontractor to deliver
to the Depositor and the Master Servicer an assessment of compliance
and accountant's attestation as and when provided in paragraphs (a)
and (b) of this Section.
(5) The Master Servicer and the Trustee shall execute (and the Master
Servicer shall cause each Subservicer to execute, and the Master
Servicer and the Trustee shall cause each Reporting Subcontractor to
execute) a reliance certificate to enable the Certification Parties
to rely upon each (i) annual compliance statement provided pursuant
to Section 3.16, (ii) annual report on assessments of compliance with
servicing criteria provided pursuant to this Section 11.07 and (iii)
accountant's report provided pursuant to this Section 11.07 and shall
include a certification that each such annual compliance statement or
report discloses any deficiencies or defaults described to the
registered public accountants of such Person to enable such
accountants to render the certificates provided for in this Section
11.07.
(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 V 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
XI-4
Person under Section 11.05 as and when required to be delivered. As a condition
to the succession to any Subservicer as subservicer under this Agreement by any
Person (i) into which such Subservicer may be merged or consolidated, or (ii)
which may be appointed as a successor to any Subservicer, the Master Servicer
shall provide to the Depositor, at least 15 calendar days prior to the
effective date of such succession or appointment, (x) written notice to the
Depositor of such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K.
(b) It shall not be necessary for the Master Servicer, any
Subservicer or the Trustee to seek the consent of the Depositor or any other
party hereto to the utilization of any Subcontractor. The Master Servicer or
the Trustee, as applicable, shall promptly upon request provide to the
Depositor (or any designee of the Depositor, such as the Master Servicer or
administrator) a written description (in form and substance satisfactory to the
Depositor) of the role and function of each Subcontractor utilized by such
Person (or in the case of the Master Servicer or any Subservicer), specifying
(i) the identity of each such Subcontractor, (ii) which (if any) of such
Subcontractors are "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be a Reporting Subcontractor, the Master Servicer or the Trustee, as
applicable, shall cause any such Subcontractor used by such Person (or in the
case of the Master Servicer or any Subservicer) for the benefit of the
Depositor to comply with the provisions of Sections 11.07 and 11.09 of this
Agreement to the same extent as if such Subcontractor were the Master Servicer
(except with respect to the Master Servicer's duties with respect to preparing
and filing any Exchange Act Reports or as the Certifying Person) or the
Trustee, as applicable. The Master Servicer or the 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.
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 certificates 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.
* * * * * *
XI-5
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/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By:/s/ Xxxxxxxx Xxxxxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
PARK GRANADA LLC,
as a Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
PARK MONACO INC.,
as a Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
PARK SIENNA LLC,
as a Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Acknowledged solely with respect to its
obligations under Section 4.01(b)
THE BANK OF NEW YORK, in its individual
capacity
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Countrywide
---------------------------------------------
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II-A to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date or if so
specified herein, as of the Initial Cut-off Date. Capitalized terms used but
not otherwise defined in this Schedule II-A shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Countrywide Home
Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Monaco Inc., as a
seller, Park Sienna LLC, as a seller, 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 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.
S-II-A-1
(4) Countrywide is an approved servicer of conventional mortgage
loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No litigation is pending or, to the best of Countrywide's
knowledge, threatened, against Countrywide that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide to sell the Countrywide Mortgage Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide of, or compliance by Countrywide with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Countrywide has obtained the same.
(7) Countrywide intends to treat the transfer of the Countrywide
Mortgage Loans to the Depositor as a sale of the Countrywide Mortgage Loans for
all tax, accounting and regulatory purposes.
(8) Countrywide is a member of MERS in good standing, and will comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the MERS Mortgage Loans in the Trust Fund for as long as
such Mortgage Loans are registered with MERS.
S-II-A-2
SCHEDULE II-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Park Granada
----------------------------------------------
Park Granada LLC ("Park Granada") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-B to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified herein, as of the Initial Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-B shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna
LLC, as a seller, Countrywide Home Loans, Inc. as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank
of New York, as trustee.
(1) Park Granada is a limited liability company duly formed and
validly existing and in good standing under the laws of the State of Delaware.
(2) Park Granada has the full corporate power and authority to sell
each Park Granada Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and each Supplemental Transfer Agreement and has duly
authorized by all necessary corporate action on the part of Park Granada the
execution, delivery and performance of the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement; and the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes a
legal, valid and binding obligation of Park Granada, enforceable against Park
Granada in accordance with its terms, except that (a) the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement by Park Granada, the sale of the Park
Granada Mortgage Loans by Park Granada under the Pooling and Servicing
Agreement and each Supplemental Transfer Agreement, the consummation of any
other of the transactions contemplated by the Pooling and Servicing Agreement,
and the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of Park Granada and will not (A) result in a material breach
of any term or provision of the certificate of formation or the limited
liability company agreement of Park Granada or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or instrument
to which Park Granada is a party or by which it may be bound, or (C) constitute
a material violation of any statute, order or regulation applicable to Park
Granada of any court, 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
S-II-B-1
agreement or instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair Park
Granada's ability to perform or meet any of its obligations under the Pooling
and Servicing Agreement.
(4) No litigation is pending or, to the best of Park Granada's
knowledge, threatened, against Park Granada that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Park Granada to sell the Park Granada Mortgage
Loans or to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Granada of, or compliance by Park Granada with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Granada has obtained the same.
(6) Park Granada intends to treat the transfer of the Park Granada
Mortgage Loans to the Depositor as a sale of the Park Granada Mortgage Loans
for all tax, accounting and regulatory purposes.
S-II-B-2
SCHEDULE II-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Park Monaco
---------------------------------------------
Park Monaco Inc. ("Park Monaco") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-C to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified herein, as of the Initial Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-C shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Monaco, as a seller, Countrywide, as a seller, Park Granada LLC, as
a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park Monaco is a corporation duly formed and validly existing and
in good standing under the laws of the State of Delaware.
(2) Park Monaco has the full corporate power and authority to sell
each Park Monaco Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and each Supplemental Transfer Agreement and has duly
authorized by all necessary corporate action on the part of Park Monaco the
execution, delivery and performance of the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement; and the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes a
legal, valid and binding obligation of Park Monaco, enforceable against Park
Monaco in accordance with its terms, except that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement by Park Monaco, the sale of the Park
Monaco Mortgage Loans by Park Monaco under the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Monaco and will not (A) result in a material breach of any
term or provision of the 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,
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.
S-II-C-1
(4) No litigation is pending or, to the best of Park Monaco's
knowledge, threatened, against Park Monaco that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Park Monaco to sell the Park Monaco Mortgage Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Monaco of, or compliance by Park Monaco with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Monaco has obtained the same.
(6) Park Monaco intends to treat the transfer of the Park Monaco
Mortgage Loans to the Depositor as a sale of the Park Monaco Mortgage Loans for
all tax, accounting and regulatory purposes.
S-II-C-2
SCHEDULE II-D
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Park Sienna
---------------------------------------------
Park Sienna LLC ("Park Sienna") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-D to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified herein, as of the Initial Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-D shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Sienna, as a seller, Countrywide, as a seller, Park Granada LLC, as
a seller, Park Monaco Inc., as a seller, Countrywide Home Loans Servicing LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park Sienna is a limited liability company duly formed and
validly existing and in good standing under the laws of the State of Delaware.
(2) Park Sienna has the full corporate power and authority to sell
each Park Sienna Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and each Supplemental Transfer Agreement and has duly
authorized by all necessary corporate action on the part of Park Sienna the
execution, delivery and performance of the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement; and the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes a
legal, valid and binding obligation of Park Sienna, enforceable against Park
Sienna in accordance with its terms, except that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement by Park Sienna, the sale of the Park
Sienna Mortgage Loans by Park Sienna under the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Sienna and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Sienna or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Sienna is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Sienna of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Sienna; and Park Sienna is not in breach or violation of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair Park Sienna's ability to perform or
meet any of its obligations under the Pooling and Servicing Agreement.
S-II-D-1
(4) No litigation is pending or, to the best of Park Sienna's
knowledge, threatened, against Park Sienna that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Park Sienna to sell the Park Sienna Mortgage Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Sienna of, or compliance by Park Sienna with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Sienna has obtained the same.
(6) Park Sienna intends to treat the transfer of the Park Sienna
Mortgage Loans to the Depositor as a sale of the Park Sienna Mortgage Loans for
all tax, accounting and regulatory purposes.
S-II-D-2
SCHEDULE III-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Countrywide as to all of the Mortgage Loans
-----------------------------------------------------------------------------
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III-A to the
Depositor, the Master Servicer and the Trustee, with respect to all of the
Initial Mortgage Loans as of the Closing Date, or if so specified herein, as of
the Initial Cut-off Date, and with respect to all of the Supplemental Mortgage
Loans as of the related Supplemental Transfer Date or if so specified herein,
as of the related Supplemental Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III-A shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWALT, Inc., as depositor, and The Bank of New York, as trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Initial Mortgage Loan is true and
correct in all material respects as of the Closing Date and with respect
to each Supplemental Mortgage Loan is true and correct in all material
respects as of the related Supplemental Transfer Date.
(2) As of the Closing Date, all payments due with respect to each
Initial Mortgage Loan prior to the Initial Cut-off Date have been made;
and as of the Cut-off Date, no Initial Mortgage Loan has been
contractually delinquent for 30 or more days during the twelve months
prior to the Initial Cut-off Date. As of each Supplemental Transfer Date,
all payments due with respect to each related Supplemental Mortgage Loan
prior to the related Supplemental Cut-off Date will have been made; as of
each Supplemental Cut-off Date, no related Supplemental Mortgage Loan will
have been contractually delinquent for 30 or more days during the twelve
months prior to that Supplemental Cut-off Date..
(3) None of the Mortgage Loans 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 of 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 and extended coverage endorsement, if applicable, in an amount
at least equal to the Cut-off Date Stated Principal Balance of each such
Mortgage Loan or a commitment (binder) to issue the same was effective on
the date of the origination of each Mortgage Loan, each such policy is
valid and remains in full force and effect, and each such policy was
issued by a title insurer qualified to do business in the jurisdiction
where the Mortgaged Property is located and acceptable to FNMA or FHLMC
and is in a form acceptable to FNMA or FHLMC, which policy insures
Countrywide and successor owners of indebtedness secured by the insured
Mortgage, as to the first priority lien of the Mortgage subject to the
exceptions set forth in paragraph (4) above; to the best of Countrywide's
knowledge, no claims have been made under such mortgage title insurance
policy and no prior holder of the related Mortgage, including Countrywide,
has done, by act or omission, anything which would impair the coverage of
such mortgage title insurance policy.
(13) 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.
(14) 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.
S-III-A-2
(15) 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.
(16) 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.
(17) 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.
(18) 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.
(19) 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.
(20) 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.
(21) 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.
(22) 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.
(23) There is no pledged account or other security other than real
estate securing the Mortgagor's obligations.
(24) No Mortgage Loan has a shared appreciation feature, or other
contingent interest feature.
S-III-A-3
(25) Each Mortgage Loan contains a customary "due on sale" clause.
(26) Approximately 6.10%, 2.99%, 20.96% and 0.00% of the Initial
Mortgage Loans in Loan Group 1, Loan Group 2, Loan Group 3 and Loan Group
4, respectively, in each case by aggregate Stated Principal Balance of the
Mortgage Loans in that Loan Group as of the Initial Cut-off Date, provide
for a Prepayment Charge.
(27) Each Mortgage Loan which had a Loan-to-Value Ratio at
origination in excess of 80.00% 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 of between 25 and 30 years is 12% for Loan-to-Value
Ratios between 80.01% and 85.00%, 25% for Loan-to-Value Ratios between
85.01% and 90.00%, 30% for Loan-to-Value Ratios between 90.01% and 95.00%
and 35% for Loan-to-Value Ratios between 95.01% and 100%. The specified
coverage percentage for mortgage loans with terms to maturity of up to 20
years ranges from 6% to 12% for Loan-to-Value Ratios between 80.01% and
85.00%, from 12% to 20% for Loan-to-Value Ratios between 85.01% to 90.00%
and 20% to 25% for Loan-to-Value Ratios between 90.01% to 95.00%. Each
such Primary Insurance Policy is issued by a Qualified Insurer. All
provisions of any such Primary Insurance Policy have been and are being
complied with, any such policy is in full force and effect, and all
premiums due thereunder have been paid. Any Mortgage subject to any such
Primary Insurance Policy obligates either the Mortgagor or the mortgagee
thereunder to maintain such insurance and to pay all premiums and charges
in connection therewith, subject, in each case, to the provisions of
Section 3.09(b) of the Pooling and Servicing Agreement. The Mortgage Rate
for each Mortgage Loan is net of any such insurance premium.
(28) As of the Closing Date or the related Supplemental Transfer
Date, as applicable, the improvements upon each Mortgaged Property are
covered by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire and extended coverage and
coverage for such other hazards as are customary in the area where the
Mortgaged Property 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 (29) 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.
(29) 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
S-III-A-4
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.
(30) 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.
(31) 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.
(32) 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.
(33) Each Mortgage Loan is being master serviced by the Master
Servicer.
(34) 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.
(35) 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.
(36) Other than with respect to any Streamlined Documentation
Mortgage Loan as to which the loan-to-value ratio of the related Original
Mortgage Loan was less than 90% at the time of the origination of such
Original Mortgage Loan, prior to the approval of the Mortgage Loan
application, an appraisal of the related Mortgaged Property was obtained
from a qualified appraiser, duly appointed by the originator, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; such appraisal is in a
form acceptable to FNMA and FHLMC.
(37) None of the Initial Mortgage Loans are graduated payment
mortgage loans or a growing equity mortgage loans, and none of the Initial
Mortgage Loans are subject to a buydown or similar arrangement.
S-III-A-5
(38) Any leasehold estate securing a Mortgage Loan has a term of not
less than five years in excess of the term of the related Mortgage Loan.
(39) The Mortgage Loans were selected from among the outstanding
fixed-rate one- to four-family mortgage loans in the portfolios of the
Sellers at the Closing Date as to which the representations and warranties
made as to the Mortgage Loans set forth in this Schedule III-A can be
made. Such selection was not made in a manner intended to adversely affect
the interests of Certificateholders.
(40) Approximately 1.03%, 1.29%, 16.43% and 23.89% of the Initial
Mortgage Loans in Loan Group 1, Loan Group 2, Loan Group 3 and Loan Group
4, respectively, in each case by aggregate Stated Principal Balance of the
Initial Mortgage Loans in that Loan Group as of the Initial Cut-off Date;
were underwritten in all material respects in accordance with American
Home Mortgage Corp.'s underwriting guidelines as set forth in the
Prospectus Supplement. Approximately 0.06%, 1.80%, 25.14% and 2.76% of the
Initial Mortgage Loans in Loan Group 1, Loan Group 2, Loan Group 3 and
Loan Group 4, respectively, in each case by aggregate Stated Principal
Balance of the Initial Mortgage Loans in that Loan Group as of the Initial
Cut-off Date; were underwritten in all material respects in accordance
with MortgageIT, Inc.'s underwriting guidelines as set forth in the
Prospectus Supplement. Each of the remaining Mortgage Loans were
underwritten in all material respects in accordance with the procedures
set forth in the Prospectus under "Mortgage Loan Program - Underwriting
Process."
(41) Except for 29 and 20 Initial Mortgage Loans in Loan Group 1 and
Loan Group 2, respectively, each Initial Mortgage Loan in Loan Group 1,
Loan Group 2, Loan Group 3 and Loan Group 4 has a payment date on or
before the Due Date in the month of the first Distribution Date.
(42) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Trustee certifying that the original Mortgage Note
is a Lost Mortgage Note, if such Mortgage Loan is subsequently in default,
the enforcement of such Mortgage Loan or of the related Mortgage by or on
behalf of the Trustee will not be materially adversely affected by the
absence of the original Mortgage Note. A "Lost Mortgage Note" is a
Mortgage Note the original of which was permanently lost or destroyed and
has not been replaced.
(43) The Mortgage Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
(44) The aggregate principal balance of the Discount Mortgage Loans
for Loan Group 1 and Loan Group 2 will not exceed $60,915,114.08 and
$4,985,016.86, respectively.
(45) Each Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or mortgage banking company which is supervised and examined by a
federal or state authority, or by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 2.03 and 2.11 of the
National Housing Act.
(46) Each Mortgage Loan was (A) originated no earlier than six months
prior to the time the Seller purchased such Mortgage Loan pursuant to a
mortgage loan purchase agreement or other similar agreement and (B)
underwritten or reunderwritten by Countrywide in accordance with
Countrywide's underwriting guidelines in effect at the time the loan was
underwritten or reunderwritten, as applicable.
S-III-A-6
(47) None of the Mortgage Loans are subject to the Georgia Fair
Lending Act, as amended.
(48) None of the Mortgage Loans are "high cost" loans as defined by
applicable predatory and abusive lending laws.
(49) None of the Mortgage Loans are covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA").
(50) 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.).
(51) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Mexico Home Loan Protection Act effective January 1, 2004 (N.M. Stat.
Xxx. xx.xx. 58-21A-1 et seq.).
(52) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as defined
in the Massachusetts Predatory Home Loan Practices Act effective November
7, 2004 (Mass. Gen. Laws ch. 183C).
(53) No Mortgage Loan originated on or after January 1, 2005 is a
"High Cost Home Loan" as defined in the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1-1 through
24-9-1-9).
(54) 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. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and with respect to the foregoing,
the terms "High Cost Loan" and "Covered Loan" have the meaning assigned to
them in the then current Standard & Poor's LEVELS(R) Version 5.7 Glossary
Revised, Appendix E which is attached hereto as Exhibit Q (the "Glossary")
where (x) a "High Cost Loan" is each loan identified in the column
"Category under applicable anti-predatory lending law" of the table
entitled "Standard & Poor's High Cost Loan Categorization" in the Glossary
as each such loan is defined in the applicable anti-predatory lending law
of the State or jurisdiction specified in such table and (y) a "Covered
Loan" is each loan identified in the column "Category under applicable
anti-predatory lending law" of the table entitled "Standard & Poor's
Covered Loan Categorization" in the Glossary as each such loan is defined
in the applicable anti-predatory lending law of the State or jurisdiction
specified in such table.
S-III-A-7
SCHEDULE III-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Countrywide as to the
-------------------------------------------------------
Countrywide Mortgage Loans
--------------------------
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III-B to the
Depositor, the Master Servicer and the Trustee, with respect to the Countrywide
Mortgage Loans that are Initial Mortgage Loans as of the Closing Date, or if so
specified herein, as of the Initial Cut-off Date, and with respect to
Countrywide Mortgage Loans that are Supplemental Mortgage Loans, as of the
related Supplemental Transfer Date or if so specified herein , as of the
related Supplemental Cut-off Date. Capitalized terms used but not otherwise
defined in this Schedule III-B shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among Countrywide, as a seller, Park
Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Countrywide Mortgage
Loan to the Depositor, Countrywide had good title to, and was the sole owner
of, such Countrywide Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE III-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Park Granada as to the Park Granada
---------------------------------------------------------------------
Mortgage Loans
--------------
Park Granada LLC ("Park Granada") hereby makes the representations
and warranties set forth in this Schedule III-C to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Granada Mortgage Loans that
are Initial Mortgage Loans as of the Closing Date, or if so specified herein,
as of the Initial Cut-off Date, and with respect to Park Granada Mortgage Loans
that are Supplemental Mortgage Loans, as of the related Supplemental Transfer
Date or if so specified herein, as of the related Supplemental Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule III-C shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Granada LLC, as a seller,
Park Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank
of New York, as trustee.
(1) Immediately prior to the assignment of each Park Granada Mortgage
Loan to the Depositor, Park Granada had good title to, and was the sole owner
of, such Park Granada Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-C-1
SCHEDULE III-D
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Park Monaco as to the Park Monaco
-------------------------------------------------------------------
Mortgage Loans
--------------
Park Monaco Inc. ("Park Monaco") hereby makes the representations and
warranties set forth in this Schedule III-D to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Monaco Mortgage Loans that
are Initial Mortgage Loans as of the Closing Date, or if so specified herein,
as of the Initial Cut-off Date, and with respect to Park Monaco Mortgage Loans
that are Supplemental Mortgage Loans, as of the related Supplemental Transfer
Date or if so specified herein, as of the related Supplemental Cut-off Date..
Capitalized terms used but not otherwise defined in this Schedule III-D shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Monaco, as a seller, Park
Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of
New York, as trustee.
(1) Immediately prior to the assignment of each Park Monaco Mortgage
Loan to the Depositor, Park Monaco had good title to, and was the sole owner
of, such Park Monaco Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE III-E
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of Park Sienna as to the Park
------------------------------------------------------------
Sienna Mortgage Loans
---------------------
Park Sienna LLC ("Park Sienna") hereby makes the representations and
warranties set forth in this Schedule III-E to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Sienna Mortgage Loans that
are Initial Mortgage Loans as of the Closing Date, or if so specified herein,
as of the Initial Cut-off Date, and with respect to Park Sienna Mortgage Loans
that are Supplemental Mortgage Loans, as of the related Supplemental Transfer
Date or if so specified herein, as of the related Supplemental Cut-off Date..
Capitalized terms used but not otherwise defined in this Schedule III-E shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Sienna LLC, as a seller,
Park Monaco Inc., as a seller, Park Granada LLC, as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank
of New York,
(1) Immediately prior to the assignment of each Park Sienna
Mortgage Loan to the Depositor, Park Sienna had good title to, and was the sole
owner of, such Park Sienna Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE IV
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-J5
Representations and Warranties of the Master Servicer
-----------------------------------------------------
Countrywide Home Loans Servicing LP ("Countrywide Servicing") hereby
makes the representations and warranties set forth in this Schedule IV to the
Depositor, the Sellers and the Trustee, as of the Closing Date. Capitalized
terms used but not otherwise defined in this Schedule IV shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") relating to the above-referenced Series, among
Countrywide Home Loans, Inc., as a seller, Park Granada LLC, as a seller, Park
Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of
New York, as trustee.
(1) Countrywide Servicing is duly organized as a limited partnership
and is validly existing and in good standing under the laws of the State of
Texas and is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
Countrywide Servicing in any state in which a Mortgaged Property is located or
is otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any such
state, to the extent necessary to perform any of its obligations under the
Pooling and Servicing Agreement in accordance with the terms thereof.
(2) Countrywide Servicing has the full partnership power and
authority to service each Mortgage Loan, and to execute, deliver and perform,
and to enter into and consummate the transactions contemplated by the Pooling
and Servicing Agreement and has duly authorized by all necessary partnership
action on the part of Countrywide Servicing the execution, delivery and
performance of the Pooling and Servicing Agreement; and the Pooling and
Servicing Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and binding
obligation of Countrywide Servicing, enforceable against Countrywide Servicing
in accordance with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement
by Countrywide Servicing, the servicing of the Mortgage Loans by Countrywide
Servicing under the Pooling and Servicing Agreement, the consummation of any
other of the transactions contemplated by the Pooling and Servicing Agreement,
and the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of Countrywide Servicing and will not (A) result in a
material breach of any term or provision of the certificate of limited
partnership, partnership agreement or other organizational document of
Countrywide Servicing or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which 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
S-IV-1
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
A-2
Granada LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller
("Park Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together
with CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and will not subject the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund. Unless the transferee delivers the Opinion of
Counsel described above, such representation shall be deemed to have been made
to the Trustee by the Transferee's acceptance of a Certificate of this Class
and by a beneficial owner's acceptance of its interest in a Certificate of
this Class. Notwithstanding anything else to the contrary herein, until such
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to, or to a person investing
assets of, an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE EFFECT THAT (I) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO
EFFECT THE TRANSFER, OR (II) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN
B-1
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE
WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.]
B-2
CERTIFICATE NO. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance
of all Certificates of the Class to which this Certificate 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
B-3
"Agreement") among the Depositor, Countrywide Home Loans, Inc., as a seller
("CHL"), Park Granada LLC, as a seller ("Park Granada"), Park Monaco, Inc., as
a seller ("Park Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and,
together with CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide
Home Loans Servicing LP, as master servicer (the "Master Servicer"), and The
Bank of New York, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Sellers, the Master Servicer or the Depositor. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.]
[No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, (ii) if such certificate has been the subject of
an ERISA-Qualifying Underwriting and the transferee is an insurance company, a
representation that the transferee is purchasing such Certificate with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions 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,
B-4
the Master Servicer or the Trust Fund. Notwithstanding anything else to the
contrary herein, any purported transfer of a Certificate of this Class to or
on behalf of an employee benefit plan subject to ERISA or a plan or
arrangement subject to Section 4975 of the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
B-6
EXHIBIT C-1
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (I) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO
EFFECT THE TRANSFER, OR (II) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class A-R
evidencing the distributions allocable to the Class A-R Certificates
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that __________________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate Initial Certificate Balance of all Certificates of the Class
to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting of the Mortgage Loans deposited by CWALT,
Inc. (the "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
C-1-2
Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna LLC, as a seller
("Park Sienna" and, together with CHL, Park Granada and Park Monaco, the
"Sellers"), Countrywide Home Loans Servicing LP, as master servicer (the
"Master Servicer"), and The Bank of New York, as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975 of the Code, or a person acting on behalf of or investing plan assets of
any such benefit plan or arrangement, which representation letter shall not be
an expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and the
transferee is an insurance company, a representation that the transferee is
purchasing such Certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60, or (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a prohibited transaction under Section 406 of ERISA or Section 4975
of the Code, and will not subject the Trustee or the Master Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Master Servicer or the
Trust Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Class A-R Certificate to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed
to be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
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
C-1-3
in this Class A-R Certificate if it has actual knowledge that the proposed
transferee is not a Permitted Transferee and (v) any attempted or purported
transfer of any Ownership Interest in this Class A-R Certificate in violation
of such restrictions will be absolutely null and void and will vest no rights
in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
C-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-1-5
EXHIBIT C-2
[FORM OF CLASS P CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
THIS CLASS P CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE
EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS P CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (I) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO
EFFECT THE TRANSFER, OR (II) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE
C-2-1
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
C-2-2
Certificate No. :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
ISIN :
Interest Rate :
Maturity Date :
CWALT, INC.
Alternative Loan Trust 200____-____
Mortgage Pass-Through Certificates, Series 200____-____
evidencing a percentage interest in the distributions allocable to the
Class P Certificates with respect to a Trust Fund consisting primarily
of a pool of conventional mortgage loans (the "Mortgage Loans") secured
by first and second liens on one- to four-family residential properties
CWALT, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, Countrywide Home
Loans, Inc., as a seller ("CHL"), Park 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
C-2-3
Servicer"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of Class
P Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month immediately preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall hold 100% of
a Class of Regular Certificates or of Certificates with an aggregate Initial
Certificate Balance of $1,000,000 or more, or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made
in like manner, but only upon presentment and surrender of such Certificate at
the Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
No transfer of a Class P Certificate shall be made unless such transfer
is made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration
requirements under the Act and such laws. In the event that a transfer is to
be made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring
to effect such transfer and such Certificateholder's prospective transferee
shall each certify to the Trustee in writing the facts surrounding the
transfer. In the event that such a transfer is to be made within two years
from the date of the initial issuance of Certificates, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Regulations promulgated pursuant to the Act) to the Trustee an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the Act
and such state securities laws, which Opinion of Counsel shall not be obtained
at the expense of the Trustee, the Master Servicer or the Depositor. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Certificate and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of a Class P Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
a Class P Certificate, acceptable to and in form and substance satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan subject to Section 406 of ERISA or a plan or arrangement subject to
C-2-4
Section 4975 of the Code, or a person acting on behalf of or investing plan
assets of any such benefit plan or arrangement, which representation letter
shall not be an expense of the Trustee, the Master Servicer or the Trust Fund,
(ii) if such Class P Certificate has been the subject of an ERISA-Qualifying
Underwriting and the transferee is an insurance company, a representation that
the transferee is purchasing such Class P Certificate with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Class P Certificate satisfy the requirements
for exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the
case of a Class P Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), a trustee of any such benefit plan or arrangement or any other
person acting on behalf of any such benefit plan or arrangement, an Opinion of
Counsel satisfactory to the Trustee to the effect that the purchase and
holding of such Certificate will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trustee or the Master Servicer to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Master Servicer or the Trust Fund. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class P
Certificate to or on behalf of an employee benefit plan subject to ERISA or a
plan or arrangement subject to Section 4975 of the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.
This Class P Certificate may not be pledged or used as collateral for
any other obligation if it would cause any portion of the Trust Fund to be
treated as a taxable mortgage pool under Section 7701(i) of the Code.
Each Holder of this Class P Certificate will be deemed to have agreed to
be bound by the transfer restrictions set forth in the Agreement and all other
terms and provisions of the Agreement.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
C-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Name:
Title:
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-2-6
EXHIBIT C-3
[Reserved]
C-3-1
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTION IN RESPECT OF PRINCIPAL.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO, OR A PERSON INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975
OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates
of this Class : $
CUSIP :
Interest Rate : Interest Only
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWALT, Inc., as Depositor
The Notional Amount of this certificate at any time, may be less than
the Notional Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that _________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was
created 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
D-2
Park Sienna LLC, as a seller ("Park Sienna" and, together with CHL, Park
Granada and Park Monaco, the "Sellers"), Countrywide Home Loans Servicing LP,
as master servicer (the "Master Servicer"), and The Bank of New York, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and will not subject the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund. When the transferee delivers the Opinion of
Counsel described above, such representation shall be deemed to have been made
to the Trustee by the Transferee's acceptance of a Certificate of this Class
and by a beneficial owner's acceptance of its interest in a Certificate of
this Class. Notwithstanding anything else to the contrary herein, until such
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to, or a person investing
assets of, an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By
Countersigned:
By
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
D-4
EXHIBIT E
[FORM OF] REVERSE OF CERTIFICATES
CWALT, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as CWALT, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to
each Distribution Date is the last Business Day of the month next preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer and the 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_-_
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached schedule) it has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay
to the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from Countrywide stating that the
original Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. 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
F-1-1
Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
F-1-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
Name:
Title:
F-1-3
EXHIBIT F-2
[FORM OF] INITIAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc., as a Seller, Park
Granada LLC, as a Seller, Park Monaco, Inc., as a Seller,
Park Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, and The Bank of New York,
as Trustee, Mortgage Pass-Through Certificates, Series
20__-__ and the Supplemental Transfer Agreement dated as of
[month] ____, 200_ among CWALT, Inc., as Depositor,
Countrywide Home Loans, Inc., as a Seller, Park Granada LLC,
as a Seller, Park Monaco, Inc., as a Seller, Park Sienna
LLC, as a Seller, and The Bank of New York, as Trustee
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") and the
Supplemental Transfer Agreement, dated as of [month] ____, 200_, the
undersigned, as Trustee, hereby certifies that, as to each Supplemental
Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Supplemental Mortgage Loan paid in full or listed on the attached schedule) it
has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay
to the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
F-2-1
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Supplemental
Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Supplemental Mortgage Loan.
F-2-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
Name:
Title:
F-2-3
EXHIBIT G-1
[FORM OF] DELAY DELIVERY CERTIFICATION
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
---------------------
---------------------
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc. ("Countrywide"), as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a Seller, Park Sienna LLC, as a Seller, Countrywide Home
Loans Servicing LP, as Master Servicer, and The Bank of New
York, as Trustee, Mortgage Pass-Through Certificates, Series
200_-_
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Initial Mortgage Loan listed
on Schedule A attached hereto (other than any Initial Mortgage Loan paid in
full or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by Countrywide or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to Countrywide, or, if
the original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from Countrywide,
stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Initial Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of
G-1-1
the MIN of the Initial Mortgage Loan and language indicating that
the Initial Mortgage Loan is a MOM Loan if the Initial Mortgage
Loan is a MOM Loan, with evidence of recording indicated thereon,
or a copy of the Mortgage certified by the public recording office
in which such Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in
the case of each Initial Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage in blank (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from
the insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a
copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan Countrywide cannot deliver the original recorded Mortgage
or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by Countrywide, the applicable title company, escrow agent or attorney, or the
originator of such Initial Mortgage Loan, as the case may be, to be a true and
complete copy of the original Mortgage or assignment of Mortgage submitted for
recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Article I of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and
G-1-2
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Initial Mortgage Loans
identified on the [Mortgage Loan Schedule][Loan Number and Borrower
Identification Mortgage Loan Schedule] or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
G-1-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
Name:
Title:
G-1-4
EXHIBIT G-2
[FORM OF] DELAY DELIVERY CERTIFICATION
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc., as a Seller, Park
Granada LLC, as a Seller, Park Monaco, Inc., as a Seller,
Park Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, and The Bank of New York,
as Trustee, Mortgage Pass-Through Certificates, Series
20__-__ and the Supplemental Transfer Agreement dated as of
[month] ____, 200_ among CWALT, Inc., as Depositor,
Countrywide Home Loans, Inc., as a Seller, Park Granada LLC,
as a Seller, Park Monaco, Inc., as a Seller, Park Sienna
LLC, as a Seller, and The Bank of New York, as Trustee
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on [month] __,
200_ (such date being the related "Supplemental Transfer Date" in accordance
with Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"). The undersigned hereby certifies that, as
to each Delay Delivery Supplemental Mortgage Loan listed on Schedule A
attached hereto (other than any Supplemental Mortgage Loan paid in full or
listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if
the 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;
G-2-1
(ii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Supplemental Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of the MIN of the
Supplemental Mortgage Loan and language indicating that the
Supplemental Mortgage Loan is a MOM Loan if the Supplemental
Mortgage Loan is a MOM Loan, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in
the case of each Supplemental Mortgage Loan with respect to
property located in the State of California that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage in blank
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from
the insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a
copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or
all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv), as applicable, the Trustee has received, in
lieu thereof, a true and complete copy of such Mortgage and/or such assignment
or assignments of the Mortgage, as applicable, each certified by the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such Supplemental Mortgage Loan, as the case may be, to be a true and complete
copy of the original Mortgage or assignment of Mortgage submitted for
recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Supplemental Mortgage Loan, and (ii) the information set forth in items (i),
(iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the
G-2-2
"Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Supplemental Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any
such Mortgage Loan.
G-2-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
Name:
Title:
G-2-4
EXHIBIT H-1
[FORM OF] FINAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc. ("Countrywide"), as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a Seller, Park Sienna LLC, as a Seller, Countrywide Home
Loans Servicing LP, as Master Servicer, and The Bank of New
York, as Trustee, Mortgage Pass-Through Certificates, Series
200_-_
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by Countrywide or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to Countrywide, or, if
the original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from Countrywide,
stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Initial Mortgage Loan that is 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
H-1-1
indicated thereon, or a copy of the Mortgage certified by the
public recording office in which such Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in
the case of each Initial Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage in blank (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each Initial
Mortgage Loan that is a MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from
the insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a
copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Initial Mortgage Loan that is
not a MERS Mortgage Loan Countrywide cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by Countrywide, the applicable title company, escrow agent or attorney, or the
originator of such Initial Mortgage Loan, as the case may be, to be a true and
complete copy of the original Mortgage or assignment of Mortgage submitted for
recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the "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
H-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 Initial Mortgage Loan.
H-1-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By :
Name:
Title:
X-0-0
XXXXXXX X-0
[FORM OF] FINAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc., as a Seller, Park
Granada LLC, as a Seller, Park Monaco, Inc., as a Seller,
Park Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, and The Bank of New York,
as Trustee, Mortgage Pass-Through Certificates, Series
20__-__ and the Supplemental Transfer Agreement dated as of
[month] ____, 200_ among CWALT, Inc., as Depositor,
Countrywide Home Loans, Inc., as a Seller, Park Granada LLC,
as a Seller, Park Monaco, Inc., as a Seller, Park Sienna
LLC, as a Seller, and The Bank of New York, as Trustee
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Supplemental Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid
in full or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if
the original Mortgage Note has been lost or destroyed and not
replaced, an original 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;
H-2-1
(ii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Supplemental Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of the MIN of the
Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of
recording indicated thereon, or a copy of the Mortgage certified
by the public recording office in which such Mortgage has been
recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in
the case of each Supplemental Mortgage Loan with respect to
property located in the State of California that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage in blank
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each Supplemental
Mortgage Loan that is a MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from
the insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a
copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Supplemental Mortgage Loan that
is not a MERS Mortgage Loan the Seller cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by the Seller, the applicable title company, escrow agent or attorney, or the
originator of such Supplemental Mortgage Loan, as the case may be, to be a
true and complete copy of the original Mortgage or assignment of Mortgage
submitted for recording.
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.
H-2-2
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Supplemental Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any
such Supplemental Mortgage Loan.
H-2-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By :
Name:
Title:
H-2-4
EXHIBIT I
[FORM OF] TRANSFER AFFIDAVIT
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ____________________________,
the proposed Transferee of an Ownership Interest in a Class A-R Certificate
(the "Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated as of _________ __, 2___ (the "Agreement"), by and among CWALT, Inc., as
depositor (the "Depositor"), Countrywide Home Loans, Inc. (the "Company"), as a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller (and together with the Company, Park Granada and Park
Monaco, the "Sellers"), Countrywide Home Loans Servicing LP, as Master Servicer
and The Bank of New York, as Trustee. Capitalized terms used, but not defined
herein or in Exhibit 1 hereto, shall have the meanings ascribed to such terms
in the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or to section 4975 of the Internal Revenue Code of 1986,
nor is it acting on behalf of or with plan assets of any such plan. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee will endeavor to remain a
Permitted Transferee for so long as it retains its Ownership Interest in the
Certificate. The Transferee is acquiring its Ownership Interest in the
Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an 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
I-1
knowledge that such affidavit is false. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment
trust or common trust fund, a partnership, trust or estate, and certain
cooperatives and, except as may be provided in Treasury Regulations, persons
holding interests in pass-through entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c)
of the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J-1 to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Class A-R Certificates.
8. The Transferee's taxpayer identification number is ____________.
9. The Transferee is a U.S. Person as defined in Code section
7701(a)(30) and, unless the Transferor (or any subsequent transferor)
expressly waives such requirement, will not cause income from the Certificate
to be attributable to a foreign permanent establishment or fixed base (within
the meaning of an applicable income tax treaty) of the Transferee or another
U.S. taxpayer.
10. The Transferee is aware that the Class A-R Certificates may be
"noneconomic residual interests" within the meaning of Treasury Regulation
Section 1.860E-1(c) and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such
residual interest, unless no significant purpose of the transfer was to impede
the assessment or collection of tax. In addition, as the Holder of a
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
I-2
permit the Transferor to assess the financial capability of the Transferee to
pay such taxes. The Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future.
12. Unless the Transferor (or any subsequent transferor) expressly
waives such requirement, the Transferee (and any subsequent transferee)
certifies (or will certify), respectively, that the transfer satisfies either
the "Asset Test" imposed by Treasury Regulation ss. 1.860E-1(c)(5) or the
"Formula Test" imposed by Treasury Regulation ss. 1.860E-1(c)(7).
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf by its duly authorized officer, this_____ day of
___________, 2___.
PRINT NAME OF TRANSFEREE
By:
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named _______________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the __________________ of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
NOTARY PUBLIC
My Commission expires the
___ day of , 20__
I-4
WAIVER OF REQUIREMENT THAT TRANSFEREE CERTIFIES TRANSFER OF CERTIFICATE
SATISFIES CERTAIN REGULATORY "SAFE HARBORS"
The Transferor hereby waives the requirement that the Transferee
certify that the transfer of the Certificate satisfies either the "Asset Test"
imposed by Treasury Regulation ss. 1.860E-1(c)(5) or the "Formula Test"
imposed by Treasury Regulation ss. 1.860E-1(c)(7).
CWALT, INC.
By: ________________________________
Name:
Title:
I-5
EXHIBIT 1 to
EXHIBIT I
Certain Definitions
"Asset Test": A transfer satisfies the Asset Test if: (i) At the
time of the transfer, and at the close of each of the transferee's two fiscal
years preceding the transferee's fiscal year of transfer, the transferee's
gross assets for financial reporting purposes exceed $100 million and its net
assets for financial reporting purposes exceed $10 million. The gross assets
and net assets of a transferee do not include any obligation of any "related
person" or any other asset if a principal purpose for holding or acquiring the
other asset is to permit the transferee to satisfy such monetary conditions;
(ii) The transferee must be an "eligible corporation" and must agree in
writing that any subsequent transfer of the interest will be to another
eligible corporation in a transaction that satisfies paragraphs 9 through 11
of this Transfer Affidavit and the Asset Test. A transfer fails to meet the
Asset Test if the transferor knows, or has reason to know, that the transferee
will not honor the restrictions on subsequent transfers of the Certificate;
and (iii) A reasonable person would not conclude, based on the facts and
circumstances known to the transferor on or before the date of the transfer,
that the taxes associated with the Certificate will not be paid. The
consideration given to the transferee to acquire the Certificate is only one
factor to be considered, but the transferor will be deemed to know that the
transferee cannot or will not pay if the amount of consideration is so low
compared to the liabilities assumed that a reasonable person would conclude
that the taxes associated with holding the Certificate will not be paid. For
purposes of applying the Asset Test, (i) an "eligible corporation" means any
domestic C corporation (as defined in section 1361(a)(2) of the Code) other
than (A) a corporation which is exempt from, or is not subject to, tax under
section 11 of the Code, (B) an entity described in section 851(a) or 856(a) of
the Code, (C) A REMIC, or (D) an organization to which part I of subchapter T
of chapter 1 of subtitle A of the Code applies; (ii) a "related person" is any
person that (A) bears a relationship to the transferee enumerated in section
267(b) or 707(b)(1) of the Code, using "20 percent" instead of "50 percent"
where it appears under the provisions, or (B) is under common control (within
the meaning of section 52(a) and (b)) with the transferee.
"Formula Test": A transfer satisfies the formula test if the
present value of the anticipated tax liabilities associated with holding the
Certificate does not exceed the sum of (i) the present value of any
consideration given to the transferee to acquire the Certificate; (ii) the
present value of the expected future distributions on the Certificate; and
(iii) the present value of the anticipated tax savings associated with holding
the Certificate as the issuing REMIC generates losses. For purposes of
applying the Formula Test: (i) The transferee is assumed to pay tax at a rate
equal to the highest rate of tax specified in section 11(b)(1) of the Code. If
the transferee has been subject to the alternative minimum tax under section
55 of the Code in the preceding two years and will compute its taxable income
in the current taxable year using the alternative minimum tax rate, then the
tax rate specified in section 55(b)(1)(B) of the Code may be used in lieu of
the highest rate specified in section 11(b)(1) of the Code; (ii) The transfer
must satisfy paragraph 9 of the Transfer Affidavit; and (iii) Present values
are computed using a 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
I-8
after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding
Permitted Transferee of such Certificate.
(5) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Class A-R
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Class A-R Certificate set forth
in this section 5.02(c) shall cease to apply (and the applicable portions of
the legend on a Class A-R Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trustee, the Sellers
or the Master Servicer, to the effect that the elimination of such
restrictions will not cause any constituent REMIC of any REMIC formed
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
ownership Interest in a Class A-R Certificate hereby consents to any amendment
of this Agreement that, based on an Opinion of Counsel furnished to the
Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Class A-R Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Class A-R Certificate that
is held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
I-9
EXHIBIT J-1
[FORM OF] TRANSFEROR CERTIFICATE
(RESIDUAL)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that to the extent we are disposing of a Class A-R Certificate, we
have no knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
Print Name of Transferor
By:
Authorized Officer
J-1-1
EXHIBIT J-2
[FORM OF] TRANSFEROR CERTIFICATE
(PRIVATE)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act.
Very truly yours,
Print Name of Transferor
By:
Authorized Officer
J-2-1
EXHIBIT K
[FORM OF] INVESTMENT LETTER (NON-RULE 144A)
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of or investing the assets of any such benefit plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting and we are an insurance
company, we are purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the
purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (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
K-1
offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we
will at our expense provide an opinion of counsel satisfactory to the
addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth
in the Pooling and Servicing Agreement.
Very truly yours,
Print Name of Transferee
By:
Authorized Officer
K-2
EXHIBIT L-1
[FORM OF] RULE 144A LETTER
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of or investing the assets of any such benefit plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting and we are an insurance
company, we are purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the
purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or
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
L-1-1
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Certificates under the Securities Act or that
would render the disposition of the Certificates a violation of Section 5 of
the Securities Act or require registration pursuant thereto, nor will act, nor
has authorized or will authorize any person to act, in such manner with
respect to the Certificates, (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
Very truly yours,
Print Name of Transferee
By:
Authorized Officer
L-1-2
ANNEX 1 TO EXHIBIT L-1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis either at least $100,000 in
securities or, if Buyer is a dealer, Buyer must own and/or invest on a
discretionary basis at least $10,000,000 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which
is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
L-1-3
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency
of a State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will
L-1-4
continue to rely on the statements made herein because one or more sales to
the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
Print Name of Buyer
By:
Name:
Title:
Date:
L-1-5
ANNEX 2 TO EXHIBIT L-1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the
Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because Buyer is part of a Family of Investment Companies (as defined
below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i)
the Buyer is an investment company registered under the Investment
Company Act of 1940, as amended and (ii) as marked below, the Buyer
alone, or the Buyer's Family of Investment Companies, owned at least
$100,000,000 in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or
the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on
the basis of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market.
___ The Buyer owned $_____ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_____ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
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
L-1-6
Investment Companies, (ii) securities issued or guaranteed by the U.S.
or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the
Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such purchase.
---------------------------------------
Print Name of Buyer or Adviser
By: ________________________________
Name:
Title:
IF AN ADVISER:
---------------------------------------
Print Name of Buyer
Date: ______________________________
X-0-0
XXXXXXX X-0
[FORM OF] ERISA LETTER (COVERED CERTIFICATES)
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates, we certify
that we are not, and are not acquiring the Certificates on behalf of or with
plan assets of an "employee benefit plan" as defined in section 3(3) of ERISA
that is subject to Title I of ERISA, a "plan" as defined in section 4975 of
the Code that is subject to section 4975 of the Code, or any person investing
on behalf of or with plan assets (as defined in 29 CFR ss.2510.3-101 or
otherwise under ERISA) of such an employee benefit plan or plan, or (ii) the
purchase and holding of the Certificates satisfy the requirements for
exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX
96-23 or a similar exemption. We understand that, in the event that such
representation is violated, such transfer or acquisition shall be void and of
no effect.
Very truly yours,
Print Name of Transferee
By:
Authorized Officer
L-2-1
EXHIBIT M
[FORM OF] REQUEST FOR RELEASE
(for Trustee)
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
Name of Mortgagor: __________________________________________
Servicer Loan No.: __________________________________________
Trustee
Name: __________________________________________
Address: __________________________________________
__________________________________________
__________________________________________
Trustee
Mortgage File No.:
The undersigned Master Servicer hereby acknowledges that it has received
from The Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the "Documents"). All capitalized terms not otherwise defined in this Request
for Release shall have the meanings given them in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master
Servicer and CWALT, Inc., as Depositor.
( ) Mortgage Note dated _______________, 20__, in the original principal sum
of $___________, made by ____________________________, payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on __________________ as instrument no.
______________________ in the County Recorder's Office of the County of
_________________________, State of _______________________ in
book/reel/docket _________________________ of official records at
page/image _______________________________.
M-1
( ) Deed of Trust recorded on ______________________ as instrument no.
___________ in the County Recorder's Office of the County of
__________________________, State of _____________________ in
book/reel/docket _________________________ of official records at
page/image ____________________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in the County
Recorder's Office of the County of _____________________, State of
___________________ in book/reel/docket ________________ of official
records at page/image ______________________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( )
( )
( )
( )
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided in
the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master
Servicer shall at all times be earmarked for the account of the Trustee,
and the Master Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Master Servicer's
possession, custody or control.
M-2
COUNTRYWIDE HOME LOANS
SERVICING LP
By
Its
Date:_________________, 20__
M-3
EXHIBIT N
[FORM OF] REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody
Services
Re: The Pooling & Servicing Agreement dated [month] 1, 200_, among
Countrywide Home Loans, Inc., as a Seller, Park Granada LLC, as a
Seller, Park Monaco, Inc., as a Seller, Park Sienna LLC, as a
Seller, Countrywide Home Loans Servicing LP, as Master Servicer,
CWALT, Inc. and The Bank of New York, as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for CWALT, Inc., we request the release of the Mortgage Loan File
for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
1. Mortgage Loan paid in full (Countrywide Home Loans, Inc. hereby
certifies that all amounts have been received).
2. Mortgage Loan Liquidated (Countrywide Home Loans, Inc. hereby
certifies that all proceeds of foreclosure, insurance, or other
liquidation have been finally received).
3. Mortgage Loan in Foreclosure.
4. Other (explain):
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on
file with you, as well as any additional documents in your possession relating
to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return
of all of the above documents to you as Trustee, please acknowledge your
receipt by signing in the space indicated below, and returning this form.
N-1
COUNTRYWIDE HOME LOANS, INC.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By:
Name:
Title:
Date:
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:
Name:
Title:
Date:
N-2
EXHIBIT O
[Reserved]
O-1
EXHIBIT P
[FORM OF] SUPPLEMENTAL TRANSFER AGREEMENT
THIS SUPPLEMENTAL TRANSFER AGREEMENT, dated as of ____________,
200_ (this "Supplemental Transfer Agreement"), among CWALT, INC., a Delaware
corporation, as depositor (the "Depositor"), COUNTRYWIDE HOME LOANS, INC.
("CHL"), a New York corporation, as a seller (a "Seller"), PARK GRANADA LLC
("Park Granada"), a Delaware limited liability company, as a seller (a
"Seller"), PARK MONACO INC. ("Park Monaco"), a Delaware limited liability
corporation, as a seller (a "Seller"), PARK SIENNA LLC ("Park Sienna"), a
Delaware limited liability company, as a seller (a "Seller" and together with
CHL, Park Granada and Park Monaco, the "Sellers") under the Pooling and
Servicing Agreement referred to below, and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee");
WHEREAS, the Depositor, the Sellers, the Trustee and Countrywide
Home Loans Servicing LP, as Master Servicer, have entered in the Pooling and
Servicing Agreement, dated as of [month] 1, 2003 (the "Pooling and Servicing
Agreement"), in relation to the Alternative Loan Trust 200_-_, Mortgage
Pass-Through Certificates, Series 200_-_;
WHEREAS, Section 2.01(e) of the Pooling and Servicing Agreement
provides for the parties hereto to enter into this Supplemental Transfer
Agreement in accordance with the terms and conditions of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged the parties hereto agree as follows:
(a) The "Supplemental Transfer Date" with respect to this Supplemental
Transfer Agreement shall be ________, 200_.
(b) The "Aggregate Supplemental Purchase Amount" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Supplemental Loan
Account.
(c) The "Capitalized Interest Requirement" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Capitalized Interest
Account.
(d) [Reserved]
(e) In case any provision of this Supplemental Transfer Agreement shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions or obligations shall not in any way
be affected or impaired thereby.
P-1
(f) In the event of any conflict between the provisions of this
Supplemental Transfer Agreement and the Pooling and Servicing Agreement, the
provisions of the Pooling and Servicing Agreement shall prevail.
(g) This Supplemental Transfer Agreement shall be governed by, and shall
be construed and enforced in accordance with the laws of the State of New
York.
(h) The Supplemental Transfer Agreement may be executed in one or more
counterparts, each of which so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
P-2
IN WITNESS WHEREOF, the parties to this Supplemental Transfer
Agreement have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CWALT, INC.,
as Depositor
By:
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By:
Name:
Title:
PARK GRANADA LLC,
as a Seller
By:
Name:
Title:
PARK MONACO, INC.,
as a Seller
By:
Name:
Title:
PARK SIENNA LLC,
as a Seller
By:
P-3
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:
Name:
Title:
Acknowledged and Agreed:
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: _____________________________
Name:
Title:
P-4
EXHIBIT Q
GLOSSARY of TERMS for STANDARD & POOR'S LEVELS(R) VERSION 5.7 FILE FORMAT
APPENDIX E - Standard & Poor's Predatory Lending Categories
Standard & Poor's has categorized loans governed by anti-predatory lending
laws in the Jurisdictions listed below into three categories based upon a
combination of factors that include (a) the risk exposure associated with the
assignee liability and (b) the tests and thresholds set forth in those laws.
Note that certain loans classified by the relevant statute as Covered are
included in Standard & Poor's High Cost Loan Category because they included
thresholds and tests that are typical of what is generally considered High
Cost by the industry.
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Date Category under Applicable
Anti-Predatory Lending Law
-----------------------------------------------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code Xxx. xx.xx. High Cost Home Loan
00-00-000 et seq.
Effective July 16, 2003
-----------------------------------------------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code xx.xx. 757.01 et Covered Loan
seq.
Effective June 2, 2003
-----------------------------------------------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Stat. Xxx. xx.xx. Covered Loan
5-3.5-101 et seq.
Effective for covered loans offered or entered into on
or after January 1, 2003. Other provisions of the Act
took effect on June 7, 2002
-----------------------------------------------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan Lending Practices Act, High Cost Home Loan
Conn. Gen. Stat. xx.xx. 36a-746 et seq.
Effective October 1, 2001
-----------------------------------------------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Code xx.xx. 26-1151.01 et Covered Loan
seq.
Effective for loans closed on or after January 28, 2003
-----------------------------------------------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. 494.0078 et seq. High Cost Home Loan
-----------------------------------------------------------------------------------------------------------------------------------
Q-1
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Date Category under Applicable
Anti-Predatory Lending Law
-----------------------------------------------------------------------------------------------------------------------------------
Effective October 2, 2002
-----------------------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. 7-6A-1 et High Cost Home Loan
2003) seq.
Effective October 1, 2002 - March 6, 2003
-----------------------------------------------------------------------------------------------------------------------------------
Georgia as amended (Mar. 7, 2003 - Georgia Fair Lending Act, Ga. Code Xxx. xx.xx. 7-6A-1 et High Cost Home Loan
current) seq.
Effective for loans closed on or after March 7, 2003
-----------------------------------------------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity Protection Act of 1994, 15 High Cost Loan
U.S.C. ss. 1639, 12 C.F.R. xx.xx. 226.32 and 226.34
Effective October 1, 1995, amendments October 1, 2002
-----------------------------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. Stat. tit. 815, xx.xx. High Risk Home Loan
137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License Act
effective from May 14, 2001)
-----------------------------------------------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. xx.xx. 16a-1-101 et High Loan to Value
seq. Consumer Loan (id. ss.
16a-3-207) and;
--------------------------------
Sections 16a-1-301 and 16a-3-207 became effective
April 14, 1999; Section 16a-3-308a became effective High APR Consumer Loan (id. ss.
July 1, 1999 16a-3-308a)
-----------------------------------------------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. High Cost Home Loan
Stat. xx.xx. 360.100 et seq.
Effective June 24, 2003
-----------------------------------------------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, xx.xx. 8-101 et High Rate High Fee Mortgage
seq.
Effective September 29, 1995 and as amended from time
to time
-----------------------------------------------------------------------------------------------------------------------------------
Q-2
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Date Category under Applicable
Anti-Predatory Lending Law
-----------------------------------------------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. 32.00 et seq. and High Cost Home Loan
209 C.M.R. xx.xx. 40.01 et seq.
Effective March 22, 2001 and amended from time to time
-----------------------------------------------------------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. xx.xx. 598D.010 et Home Loan
seq.
Effective October 1, 2003
-----------------------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, N.J. High Cost Home Loan
Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective for loans closed on or after November 27,
2003
-----------------------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. 58-21A-1 High Cost Home Loan
et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
-----------------------------------------------------------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or after April 1,
2003
-----------------------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Loans, High Cost Home Loan
N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1, 2003
(adding open-end lines of credit)
-----------------------------------------------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various sections of the Ohio Covered Loan
Code), Ohio Rev. Code Xxx. xx.xx. 1349.25 et seq.
Effective May 24, 2002
-----------------------------------------------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in various sections of Subsection 10 Mortgage
Title 14A)
Effective July 1, 2000; amended effective January 1,
2004
-----------------------------------------------------------------------------------------------------------------------------------
Q-3
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Date Category under Applicable
Anti-Predatory Lending Law
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Loans Act, High Cost Home Loan
S.C. Code Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after January 1, 2004
-----------------------------------------------------------------------------------------------------------------------------------
West Virginia West Virginia Residential Mortgage Lender, Broker and West Virginia Mortgage Loan Act
Servicer Act, W. Va. Code Xxx. xx.xx. 31-17-1 et seq. Loan
Effective June 5, 2002
-----------------------------------------------------------------------------------------------------------------------------------
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. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. 7-6A-1 et Covered Loan
2003) seq.
Effective October 1, 2002 - March 6, 2003
-----------------------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, N.J. Covered Home Loan
Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective November 27, 2003 - July 5, 2004
-----------------------------------------------------------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
-----------------------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Date Category under Applicable
Anti-Predatory Lending Law
-----------------------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. 7-6A-1 et Home Loan
2003) seq.
Effective October 1, 2002 - March 6, 2003
-----------------------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Home Loan
-----------------------------------------------------------------------------------------------------------------------------------
Q-4
Standard & Poor's Home Loan Categorization
-----------------------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Date Category under Applicable
Anti-Predatory Lending Law
-----------------------------------------------------------------------------------------------------------------------------------
Act of 2002, N.J. Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective for loans closed on or after November 27,
2003
-----------------------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. 58-21A-1 Home Loan
et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
-----------------------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Loans, Consumer Home Loan
N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1, 2003
(adding open-end lines of credit)
-----------------------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Loans Act, Consumer Home Loan
S.C. Code Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after January 1, 2004
-----------------------------------------------------------------------------------------------------------------------------------
Q-5
EXHIBIT R
[FORM OF] CORRIDOR CONTRACT
Delivered to the Trustee at closing and on file with the Trustee.
R-1
EXHIBIT S-1
[FORM OF] CORRIDOR CONTRACT ASSIGNMENT AGREEMENT
Delivered to the Trustee at closing and on file with the Trustee.
S-1-1
EXHIBIT S-2
[Reserved]
S-2-1
EXHIBIT T
[FORM OF] OFFICER'S CERTIFICATE WITH RESPECT TO PREPAYMENTS
MORTGAGE BACKED CERTIFICATES,
Series 200_-__
[Date]
Via Facsimile
__________________,
as Trustee
_______________
_______________________
Dear Sir or Madam:
Reference is made to the Pooling and Servicing Agreement, dated as
of _________, 200_, (the "Pooling and Servicing Agreement") among [CWALT,
Inc.], as Depositor, [Countrywide Home Loans, Inc.], as a Seller, [Park
Granada LLC], as a Seller, [Park Monaco Inc.], as a Seller, [Park Sienna LLC],
as a Seller, [Countrywide Home Loans Servicing LP], as Master Servicer and
__________________, as Trustee. Capitalized terms used herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
__________________ hereby certifies that he/she is a Servicing
Officer, holding the office set forth beneath his/her name and hereby further
certifies as follows:
With respect to the Distribution Date in _________ 200_ and each
Mortgage Loan set forth in the attached schedule:
1. A Principal Prepayment in full or in part was received during
the related Prepayment Period;
2. Any Prepayment Charge due under the terms of the Mortgage Note
with respect to such Principal Prepayment was or was not, as indicated on the
attached schedule using "Yes" or "No", received from the Mortgagor and
deposited in the Certificate Account;
3. As to each Mortgage Loan set forth on the attached schedule for
which all or part of the Prepayment Charge required in connection with the
Principal Prepayment was waived by the Master Servicer, such waiver was, as
indicated on the attached schedule, based upon:
(i) the Master Servicer's determination that such waiver
would maximize recovery of Liquidation Proceeds for such Mortgage
Loan, taking into account the value of such Prepayment Charge, or
(ii)(A) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership, or other similar
law relating to creditors' rights generally or (2) due to
T-1
acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or
prohibited by applicable law; and
4. We certify that all amounts due in connection with the waiver
of a Prepayment Charge inconsistent with clause 3 above which are required to
be deposited by the Master Servicer pursuant to Section 3.19 of the Pooling
and Servicing Agreement, have been or will be so deposited.
[COUNTRYWIDE HOME LOANS, INC.],
as Master Servicer
T-2
SCHEDULE OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED DURING THE
RELATED PREPAYMENT PERIOD
-------------------------------------------------------------------------------
Loan Number Clause 2: Yes/No Clause 3: (i) or (ii)
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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":
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
------------------------ --------------------------
Policies and procedures are instituted to monitor any performance or other
1122(d)(1)(i) triggers and events of default in accordance with the transaction agreements.
------------------------ --------------------------
If any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party's
1122(d)(1)(ii) performance and compliance with such servicing activities.
------------------------ --------------------------
Any requirements in the transaction agreements to maintain a back-up servicer
1122(d)(1)(iii) for the mortgage loans are maintained.
------------------------ --------------------------
A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in
the amount of coverage required by and otherwise in accordance with the terms
1122(d)(1)(iv) of the transaction agreements.
------------------------ --------------------------
Cash Collection and Administration
------------------------ --------------------------
Payments on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
1122(d)(2)(i) agreements.
------------------------ --------------------------
Disbursements made via wire transfer on behalf of an obligor or to an
1122(d)(2)(ii) investor are made only by
------------------------ --------------------------
W-1
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
authorized personnel.
------------------------ --------------------------
Advances of funds or guarantees regarding collections, cash flows or
distributions, and any interest or other fees charged for such advances, are
1122(d)(2)(iii) made, reviewed and approved as specified in the transaction agreements.
------------------------ --------------------------
The related accounts for the transaction, such as cash reserve accounts or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
1122(d)(2)(iv) transaction agreements.
------------------------ --------------------------
Each custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a
foreign financial institution means a foreign financial institution that
1122(d)(2)(v) 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.
------------------------ --------------------------
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
1122(d)(2)(vii) transaction agreements.
------------------------ --------------------------
Investor Remittances and Reporting
------------------------ --------------------------
1122(d)(3)(i) Reports to investors, including those to be filed
------------------------ --------------------------
W-2
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
with the Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically, such reports
(A) are prepared in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C) are filed with the
Commission as required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid principal balance
and number of mortgage loans serviced by the Servicer.
------------------------ --------------------------
Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the
1122(d)(3)(ii) transaction agreements.
------------------------ --------------------------
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
1122(d)(3)(iii) transaction agreements.
------------------------ --------------------------
Amounts remitted to investors per the investor reports agree with cancelled
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements.
------------------------ --------------------------
Pool Asset Administration
------------------------ --------------------------
Collateral or security on mortgage loans is maintained as required by the
1122(d)(4)(i) transaction agreements or related mortgage loan documents.
------------------------ --------------------------
Mortgage loan and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements.
------------------------ --------------------------
Any additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the
1122(d)(4)(iii) transaction agreements.
------------------------ --------------------------
Payments on mortgage loans, including any payoffs, made in accordance with
1122(d)(4)(iv) the related mortgage loan documents are posted to the
------------------------ --------------------------
W-3
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Servicer's obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction agreements,
and allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
------------------------ --------------------------
The Servicer's records regarding the mortgage loans agree with the Servicer's
1122(d)(4)(v) records with respect to an obligor's unpaid principal balance.
------------------------ --------------------------
Changes with respect to the terms or status of an obligor's mortgage loans
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and
1122(d)(4)(vi) related pool asset documents.
------------------------ --------------------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
1122(d)(4)(vii) timeframes or other requirements established by the transaction agreements.
------------------------ --------------------------
Records documenting collection efforts are maintained during the period a
mortgage loan is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
------------------------ --------------------------
Adjustments to interest rates or rates of return for mortgage loans with
1122(d)(4)(ix) variable rates are computed based on the related mortgage loan documents.
------------------------ --------------------------
Regarding any funds held in trust for an obligor (such as escrow accounts):
1122(d)(4)(x) (A) such funds are analyzed, in accordance with the obligor's
------------------------ --------------------------
W-4
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
mortgage loan documents, on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable mortgage loan documents
and state laws; and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
------------------------ --------------------------
Payments made on behalf of an obligor (such as tax or insurance payments) are
made on or before the related penalty or expiration dates, as indicated on
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
1122(d)(4)(xi) agreements.
------------------------ --------------------------
Any late payment penalties in connection with any payment to be made on
behalf of an obligor are paid from the servicer's funds and not charged to
the obligor, unless the late payment was due to the obligor's error or
1122(d)(4)(xii) omission.
------------------------ --------------------------
Disbursements made on behalf of an obligor are posted within two business
days to the obligor's records maintained by the servicer, or such other
1122(d)(4)(xiii) number of days specified in the transaction agreements.
------------------------ --------------------------
Delinquencies, charge-offs and uncollectible accounts are recognized and
1122(d)(4)(xiv) recorded in accordance with the transaction agreements.
------------------------ --------------------------
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
1122(d)(4)(xv) transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
W-5
[NAME OF MASTER SERVICER] [NAME OF
TRUSTEE] [NAME OF CO-TRUSTEE] [NAME OF
SUBSERVICER]
Date: _________________________
By: ________________________________
Name:
Title:
W-6
EXHIBIT X
[FORM OF] LIST OF ITEM 1119 PARTIES
ALTERNATIVE LOAN TRUST 200_-__
MORTGAGE PASS-THROUGH CERTIFICATES,
Series 200_-__
[Date]
-------------------------------------------------------------------------------
Party Contact Information
-------------------------------------------------------------------------------
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X-1
EXHIBIT Y
FORM OF XXXXXXXX-XXXXX CERTIFICATION
(REPLACEMENT OF MASTER SERVICER)
Y-1
