EXHIBIT 99.1
----------------------------------
CWMBS, 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 January 1, 2007
----------------------------------
CHL MORTGAGE PASS-THROUGH TRUST 2007-HYB1
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HYB1
----------------------------------
Table of Contents
Page
ARTICLE I
DEFINITIONS.................................................................12
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES................45
SECTION 2.01. Conveyance of Mortgage Loans...........................45
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans............49
SECTION 2.03. Representations, Warranties and Covenants of the
Sellers and Master Servicer............................51
SECTION 2.04. Representations and Warranties of the Depositor as
to the Mortgage Loans..................................54
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions..........................................54
SECTION 2.06. Execution and Delivery of Certificates.................55
SECTION 2.07. REMIC Matters..........................................55
SECTION 2.08. Covenants of the Master Servicer.......................55
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..............................56
SECTION 3.01. Master Servicer to Service Mortgage Loans..............56
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers...........................................57
SECTION 3.03. Rights of the Depositor and the Trustee in Respect
of the Master Servicer.................................57
SECTION 3.04. Trustee to Act as Master Servicer......................58
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account..........................58
SECTION 3.06. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.................................61
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans...........................62
SECTION 3.08. Permitted Withdrawals from the Certificate Account
and the Distribution Account...........................62
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies.............................64
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.............................................65
SECTION 3.11. Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans...................66
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files........70
i
SECTION 3.13. Documents, Records and Funds in Possession of
Master Servicer to be Held for the Trustee.............71
SECTION 3.14. Servicing Compensation.................................71
SECTION 3.15. Access to Certain Documentation........................72
SECTION 3.16. Annual Statement as to Compliance......................72
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds.........72
SECTION 3.18. Notification of Adjustments............................73
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER...........................74
SECTION 4.01. Advances...............................................74
SECTION 4.02. Priorities of Distribution.............................75
SECTION 4.03. [Reserved].............................................80
SECTION 4.04. Allocation of Realized Losses..........................80
SECTION 4.05. Cross-Collateralization; Adjustments to Available
Funds..................................................81
SECTION 4.06. Monthly Statements to Certificateholders...............82
ARTICLE V
THE CERTIFICATES............................................................84
SECTION 5.01. The Certificates.......................................84
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates...............................84
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates......89
SECTION 5.04. Persons Deemed Owners..................................89
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses..............................................90
SECTION 5.06. Maintenance of Office or Agency........................90
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER.......................................91
SECTION 6.01. Respective Liabilities of the Depositor and the
Master Servicer........................................91
SECTION 6.02. Merger or Consolidation of the Depositor or the
Master Servicer........................................91
SECTION 6.03. Limitation on Liability of the Depositor, the
Sellers, the Master Servicer and Others................91
SECTION 6.04. Limitation on Resignation of Master Servicer...........92
ARTICLE VII
DEFAULT.....................................................................93
SECTION 7.01. Events of Default......................................93
SECTION 7.02. Trustee to Act; Appointment of Successor...............95
SECTION 7.03. Notification to Certificateholders.....................96
ii
ARTICLE VIII
CONCERNING THE TRUSTEE......................................................97
SECTION 8.01. Duties of Trustee......................................97
SECTION 8.02. Certain Matters Affecting the Trustee..................98
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage
Loans..................................................99
SECTION 8.04. Trustee May Own Certificates...........................99
SECTION 8.05. Trustee's Fees and Expenses............................99
SECTION 8.06. Eligibility Requirements for Trustee..................100
SECTION 8.07. Resignation and Removal of Trustee....................100
SECTION 8.08. Successor Trustee.....................................101
SECTION 8.09. Merger or Consolidation of Trustee....................102
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.........102
SECTION 8.11. Tax Matters...........................................104
SECTION 8.12. Monitoring of Significance Percentage.................105
ARTICLE IX
TERMINATION................................................................106
SECTION 9.01. Termination upon Liquidation or Purchase of all
Mortgage Loans........................................106
SECTION 9.02. Final Distribution on the Certificates................106
SECTION 9.03. Additional Termination Requirements...................107
ARTICLE X
MISCELLANEOUS PROVISIONS...................................................109
SECTION 10.01. Amendment.............................................109
SECTION 10.02. Recordation of Agreement; Counterparts................110
SECTION 10.03. Governing Law.........................................111
SECTION 10.04. Intention of Parties..................................111
SECTION 10.05. Notices...............................................112
SECTION 10.06. Severability of Provisions............................113
SECTION 10.07. Assignment............................................114
SECTION 10.08. Limitation on Rights of Certificateholders............114
SECTION 10.09. Inspection and Audit Rights...........................115
SECTION 10.10. Certificates Nonassessable and Fully Paid.............115
SECTION 10.11. [Reserved]............................................115
SECTION 10.12. Protection of Assets..................................115
ARTICLE XI
EXCHANGE ACT REPORTING.....................................................116
SECTION 11.01. Filing Obligations....................................116
SECTION 11.02. Form 10-D Filings.....................................116
SECTION 11.03. Form 8-K Filings......................................117
SECTION 11.04. Form 10-K Filings.....................................117
iii
SECTION 11.05. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification..........................118
SECTION 11.06. Form 15 Filing........................................119
SECTION 11.07. Report on Assessment of Compliance and Attestation....119
SECTION 11.08. Use of Subservicers and Subcontractors................120
SECTION 11.09. Amendments............................................121
SECTION 11.10. Reconciliation of Accounts............................121
iv
SCHEDULES
Schedule I: Mortgage Loan Schedule...................................S-I-1
Schedule II-A: Representations and Warranties of Countrywide.........S-II-A-1
Schedule II-B: Representations and Warranties of Park Granada........S-II-B-1
Schedule II-C: Representations and Warranties of Park Monaco.........S-II-C-1
Schedule II-D: Representations and Warranties of Park Sienna.........S-II-D-1
Schedule III-A: Representations and Warranties of Countrywide as to all of
the Mortgage Loans...................................S-III-A-1
Schedule III-B: Representations and Warranties of Countrywide as to the
Countrywide Mortgage Loans...........................S-III-B-1
Schedule III-C: Representations and Warranties of Park Granada as to the
Park Granada Mortgage Loans..........................S-III-C-1
Schedule III-D: Representations and Warranties of Park Monaco as to the
Park Monaco Mortgage Loans...........................S-III-D-1
Schedule III-E: Representations and Warranties of Park Sienna as to the
Park Sienna Mortgage Loans...........................S-III-E-1
Schedule IV: Representations and Warranties of the Master Servicer...S-IV-1
Schedule V: Principal Balances Schedule [if applicable]..............S-V-1
Schedule VI: Form of Monthly Master Servicer Report..................S-VI-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount
Certificates)..............................................A-1
Exhibit B: Form of Subordinated Certificate...........................B-1
Exhibit C: Form of Class A-R Certificate..............................C-1
Exhibit D: Form of Notional Amount Certificate........................D-1
Exhibit E: Form of Reverse of Certificates............................E-1
Exhibit F: Form of Initial Certification of Trustee...................F-1
Exhibit G: Form of Delay Delivery Certification of Trustee............G-1
Exhibit H: Form of Final Certification of Trustee.....................H-1
Exhibit I: Form of Transfer Affidavit.................................I-1
Exhibit J-1: Form of Transferor Certificate (Residual)..................J-1
Exhibit J-2: Form of Transferor Certificate (Private)...................J-2
Exhibit K: Form of Investment Letter [Non-Rule 144A]..................K-1
Exhibit L: Form of Rule 144A Letter...................................L-1
Exhibit M: Form of Request for Release (for Trustee)..................M-1
Exhibit N: Form of Request for Release (Mortgage Loan) Paid in
Full, Repurchased and Replaced)............................N-1
Exhibit O: Standard & Poor's LEVELS(R) Version 5.7 Glossary
Revised, Appendix E...................................... .O-1
Exhibit P: [Reserved].................................................P-1
Exhibit Q Monthly Report.............................................Q-1
Exhibit R-1 Form of Performance Certification (Subservicer)............R-1
Exhibit R-2 Form of Performance Certification (Trustee)................R-2
v
Exhibit S Form of Servicing Criteria to be Addressed in
Assessment of Compliance Statement.........................S-1
Exhibit T List of Item 1119 Parties..................................T-1
Exhibit U Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (Replacement
Master Servicer)...........................................U-1
vi
THIS POOLING AND SERVICING AGREEMENT, dated as of January 1, 2007, among
CWMBS, INC., a Delaware corporation, as depositor (the "Depositor"), COUNTRYWIDE
HOME LOANS, INC. ("Countrywide"), a New York corporation, as a seller (a
"Seller"), PARK GRANADA LLC ("Park Granada"), a Delaware limited liability
company, as a seller (a "Seller"), PARK MONACO INC. ("Park Monaco"), a Delaware
corporation, as a seller (a "Seller"), PARK SIENNA LLC ("Park Sienna"), a
Delaware limited liability company, as a seller (a "Seller"), COUNTRYWIDE HOME
LOANS SERVICING LP, a Texas limited partnership, as master servicer (the "Master
Servicer"), and THE BANK OF NEW YORK, a banking corporation organized under the
laws of the State of New York, as trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements contained in this Agreement, the
parties to this Agreement agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. For federal income tax purposes, the
Trust Fund, 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 represents 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 MT-A-R Interest). The Middle Tier REMIC will
hold as assets the several classes of uncertificated Lower Tier REMIC Interests
(other than the Class LT-A-R Interest). The Lower Tier REMIC will hold as assets
all property of the Trust Fund. Each Middle Tier REMIC Interest (other than the
Class MT-A-R Interest) is hereby designated as a regular interest in the Middle
Tier REMIC. Each Lower Tier REMIC Interest (other than the Class LT-A-R
Interest) is hereby designated as a regular interest in the Lower Tier REMIC.
The latest possible maturity date of all REMIC regular interests created in this
Agreement shall be the Latest Possible Maturity Date.
The following table set forth characteristics of the Interests in the
Lower Tier REMIC:
Initial
Principal Corresponding
The Lower Tier REMIC Interests Balance Interest Rate Loan Group
------------------------------ ------- ------------- ----------
LT-A-1........................ (1) (2) 1
LT-B-1........................ (1) (2) 1
LT-C-1........................ (1) (2) 1
LT-A-2........................ (1) (2) 2
LT-B-2........................ (1) (2) 2
LT-C-2........................ (1) (2) 2
LT-A-3........................ (1) (2) 3
LT-B-3........................ (1) (2) 3
LT-C-3........................ (1) (2) 3
LT-A-4........................ (1) (2) 4
LT-B-4........................ (1) (2) 4
LT-C-4........................ (1) (2) 4
LT-A-5........................ (1) (2) 5
LT-B-5........................ (1) (2) 5
LT-C-5........................ (1) (2) 5
LT-A-R........................ (3) (3) N/A
---------------
(1) Each Class A Lower Tier REMIC Interest will have an Initial Principal
Balance equal to 0.9% of the Subordinated Portion of its Corresponding
Loan Group. Each Class B Lower Tier REMIC Interest will have an Initial
Principal Balance equal to 0.1% of the Subordinated Portion of its
Corresponding Loan Group. Each Class C Lower Tier REMIC Interest will have
an Initial Principal Balance equal to the excess of the aggregate Stated
Principal Balance of the Mortgage Loans of its Corresponding Loan Group
over the initial aggregate principal balances of the Class A and Class B
Lower Tier REMIC Interests corresponding to such Loan Group.
(2) This Lower Tier REMIC Interest will have an Interest Rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans
in the Corresponding Loan Group.
(3) The Class LT-A-R Lower Tier REMIC Interest is the sole class of residual
interest in the Lower Tier REMIC. It has no principal balance and pays no
principal or interest.
On each Distribution Date, the Available Funds shall be distributed with
respect to the Lower Tier REMIC Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each Lower
Tier REMIC Interest at the rate, or according to the formulas, described above;
(2) Principal, if no Cross-Over Situation Exists. If no Cross-Over
Situation exists with respect to any Class of Lower Tier REMIC Interests,
Principal Amounts arising with respect to each Loan Group will be allocated:
first to cause the Loan Group's corresponding Class A and Class B Lower Tier
REMIC Interests to equal, respectively, 0.9% of the Subordinated Portion and
0.1% of the Subordinated Portion; and second to the Loan Group's corresponding
Class C Lower Tier REMIC Interest;
(3) Principal, if a Cross-Over Situation Exists. If a Cross-Over Situation
exists with respect to the Class A and Class B Lower Tier REMIC Interests:
(a) If the Calculation Rate in respect of the outstanding Class A and
Class B Lower Tier REMIC Interests is less than the Subordinate
Pass-Through Rate, then Principal Relocation Payments will be made
proportionately to the outstanding Class A Lower Tier REMIC 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 Lower Tier REMIC Interests is greater than the Subordinate
Pass-Through Rate, Principal Relocation Payments will be made to the
outstanding Class B Lower Tier REMIC Interests prior to any other
principal distributions from each such Loan Group.
2
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 Lower
Tier REMIC Interests to equal the Subordinate Pass-Through Rate. With respect to
each Loan Group, if (and to the extent that) the sum of (a) the principal
payments comprising the Principal Remittance Amount received during the Due
Period and (b) the Realized Losses, are insufficient to make the necessary
reductions of principal on the Class A and Class B Lower Tier REMIC Interests,
then interest will be added to the Loan Group's Class C Lower Tier REMIC
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 Stated Principal Balances of the Mortgage Loans in all Loan
Groups 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 Lower Tier REMIC Interests
of a Loan Group, and if the Loan Group's Class C Lower Tier REMIC Interest has
already been reduced to zero, then the excess principal from that Loan Group
will be paid to the Class C Lower Tier REMIC Interests of the other Loan Groups
the aggregate Class A and Class B Lower Tier REMIC Interests of which are less
than one percent of the Subordinated Portion. If the Loan Group corresponding to
the Class C Lower Tier REMIC 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 a Loan Group
corresponding to the Class C Lower Tier REMIC 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.
The following table sets forth characteristics of the Interests in the
Middle Tier REMIC:
The Middle Tier Initial Principal Corresponding
REMIC Interests Balance Interest Rate Certificates
--------------- ----------------- ------------- -------------------
MT-1-A-1 $ 60,621,000 (1) 1-A-1, 1-A-IO(2)
MT-1-A-2 $ 6,735,000 (1) 1-A-2, 1-A-IO(2)
MT-1-$100 $ 100 (1) A-R
MT-2-A-1 $ 234,469,000 (1) 2-A-1, 2-A-IO(3)
MT-3-A-1 $ 90,889,000 (1) 3-A-1, 3-A-IO(4)
MT-2-A-2 $ 26,052,000 (1) 2-3-A2, 2-A-IO, (3)
MT-3-A-2 $ 10,099,000 (1) 2-3-A2, 3-A-IO (4)
MT-4-A-1 $ 73,828,000 (1) 4-A-1, 4-A-IO(5)
MT-4-A-2 $ 8,203,000 (1) 4-A-2, 4-A-IO(5)
3
The Middle Tier Initial Principal Corresponding
REMIC Interests Balance Interest Rate Certificates
--------------- ----------------- ------------- -------------------
MT-5-A-1 $ 70,758,000 (1) 5-A-1, 5-A-IO(6)
MT-5-A-2 $ 7,862,000 (1) 5-A-2, 5-A-IO(6)
MT-M $ 16,870,000 (7) M
MT-B-1 $ 10,823,000 (7) B-1
MT-B-2 $ 6,685,000 (7) B-2
MT-B-3 $ 5,411,000 (7) B-3
MT-B-4 $ 4,456,000 (7) B-4
MT-B-5 $ 2,864,327 (7) B-5
MT-A-R (8) (8) N/A
(1) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate of the
Mortgage Loans in the related Loan Group which is signified by the first
digit following "MT" in the interest designation.
(2) For each Interest Accrual Period from the Interest Accrual Period related
to the first Distribution Date to and including the Interest Accrual
Period related to the Loan Group 1 Weighted Average Roll Date, the Class
1-A-IO Certificates are entitled to receive a specified portion of the
interest payable on the MT-1-A-1 and MT-1-A-2 Middle Tier REMIC Interests.
Specifically, for each such Interest Accrual Period, the Class 1-A-IO
Certificates are entitled to interest accruals on the MT-1-A-1 and
MT-1-A-2 Middle Tier REMIC Interests at a per annum rate equal to the
Component Rate of the Class 1-A-1 IO and Class 1-A-2 IO Components,
respectively. For the Interest Accrual Period related to a Distribution
Date after the related Weighted Average Roll Date, the Class 1-A-IO
Certificates will be entitled to 0% per annum.
(3) For each Interest Accrual Period from the Interest Accrual Period related
to the first Distribution Date to and including the Interest Accrual
Period related to the Loan Group 2 Weighted Average Roll Date, the Class
2-A-IO Certificates are entitled to receive a specified portion of the
interest payable on the MT-2-A-1 and MT-2-A-2 Middle Tier REMIC Interests.
Specifically, for each such Interest Accrual Period, the Class 2-A-IO
Certificates are entitled to interest accruals on the MT-2-A-1 and
MT-2-A-2 Middle Tier REMIC Interests at a per annum rate equal to the
Component Rate of the Class 2-A-1 IO and Class 2-A-2 IO Components,
respectively. For the Interest Accrual Period related to a Distribution
Date after the related Weighted Average Roll Date, the Class 2-A-IO
Certificates will be entitled to 0% per annum.
(4) For each Interest Accrual Period from the Interest Accrual Period related
to the first Distribution Date to and including the Interest Accrual
Period related to the Loan Group 3 Weighted Average Roll Date, the Class
3-A-IO Certificates are entitled to receive a specified portion of the
interest payable on the MT-3-A-1 and MT-3-A-2 Middle Tier REMIC Interests.
Specifically, for each such Interest Accrual Period, the Class 3-A-IO
Certificates are entitled to interest accruals on the MT-3-A-1 and
MT-3-A-2 Middle Tier REMIC Interests at a per annum rate equal to the
Component Rate of the Class 3-A-1 IO and Class 3-A-2 IO Components,
respectively. For the Interest Accrual Period related to
4
a Distribution Date after the related Weighted Average Roll Date, the
Class 3-A-IO Certificates will be entitled to 0% per annum.
(5) For each Interest Accrual Period from the Interest Accrual Period related
to the first Distribution Date to and including the Interest Accrual
Period related to the Loan Group 4 Weighted Average Roll Date, the Class
4-A-IO Certificates are entitled to receive a specified portion of the
interest payable on the MT-4-A-1 and MT-4-A-2 Middle Tier REMIC Interests.
Specifically, for each such Interest Accrual Period, the Class 4-A-IO
Certificates are entitled to interest accruals on the MT-4-A-1 and
MT-4-A-2 Middle Tier REMIC Interests at a per annum rate equal to the
Component Rate of the Class 4-A-1 IO and Class 4-A-2 IO Components,
respectively. For the Interest Accrual Period related to a Distribution
Date after the related Weighted Average Roll Date, the Class 4-A-IO
Certificates will be entitled to 0% per annum.
(6) For each Interest Accrual Period from the Interest Accrual Period related
to the first Distribution Date to and including the Interest Accrual
Period related to the Loan Group 5 Weighted Average Roll Date, the Class
5-A-IO Certificates are entitled to receive a specified portion of the
interest payable on the MT-5-A-1 and MT-5-A-2 Middle Tier REMIC Interests.
Specifically, for each such Interest Accrual Period, the Class 5-A-IO
Certificates are entitled to interest accruals on the MT-5-A-1 and
MT-5-A-2 Middle Tier REMIC Interests at a per annum rate equal to the
Component Rate of the Class 5-A-1 IO and Class 5-A-2 IO Components,
respectively. For the Interest Accrual Period related to a Distribution
Date after the related Weighted Average Roll Date, the Class 5-A-IO
Certificates will be entitled to 0% per annum.
(7) For each Interest Accrual Period, the interest rate for this Middle Tier
REMIC Interest will be the Subordinate Pass-Through Rate.
(8) 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, the Available Funds shall be distributed with
respect to the Middle Tier REMIC Interests in the following manner:
(1) Interest is to be distributed with respect to each Middle Tier REMIC
Interest at the rate, or according to the formulas, described above; and
(2) Principal is to be distributed with respect to each Middle Tier REMIC
Interest in the same manner and in the same amount as principal is distributed
with respect to each Middle Tier REMIC Interest's Corresponding Class or Classes
of Certificates.
On each Distribution Date, Realized Losses (and increases in Principal
Balances attributable to Subsequent Recoveries) shall be allocated among the
Middle Tier REMIC Interests in the same manner that Realized Losses (and
increases in Class Certificate Balances attributable to Subsequent Recoveries)
are allocated among each Middle Tier REMIC Interest's Corresponding Class or
Classes of Certificates.
The following table sets forth characteristics of the Certificates,
together with minimum denominations and integral multiples in excess thereof in
which such Classes shall be issued (except that one Certificate of each Class of
Certificates may be issuable in a different amount
5
and, in addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount for each class of REMIC
Interest):
Pass- Integral
Initial Class Through Multiples
Class Certificate Rate Minimum in Excess of
Designation Balance (per annum) Denomination Minimum
------------ ------------- ----------- ------------ ------------
Class 1-A-1 $60,621,000 (1) $25,000.00 $1.00
Class 1-A-2 $6,735,000 (1) $25,000.00 $1.00
Class 1-A-IO $67,356,000(2) (3) $25,000.00(4) $1.00(4)
Class 2-A-1 $234,469,000 (5) $25,000.00 $1.00
Class 2-A-IO $260,521,000(2) (6) $25,000.00(4) $1.00(4)
Class 3-A-1 $90,889,000 (7) $25,000.00 $1.00
Class 3-A-IO $100,988,000(2) (8) $25,000.00(4) $1.00(4)
Class 2-3-A2 $36,151,000(9) (10) $25,000.00 $1.00
Class 4-A-1 $73,828,000 (11) $25,000.00 $1.00
Class 4-A-2 $8,203,000 (11) $25,000.00 $1.00
Class 4-A-IO $82,031,000(2) (12) $25,000.00(4) $1.00(4)
Class 5-A-1 $70,758,000 (13) $25,000.00 $1.00
Class 5-A-2 $7,862,000 (13) $25,000.00 $1.00
Class 5-A-IO $78,620,000(2) (14) $25,000.00(4) $1.00(4)
Class A-R $100 (15) (16) (16)
Class M $16,870,000 (17) $25,000.00 $1.00
Class B-1 $10,823,000 (17) $25,000.00 $1.00
Class B-2 $6,685,000 (17) $25,000.00 $1.00
Class B-3 $5,411,000 (17) $100,000.00 $1.00
Class B-4 $4,456,000 (17) $100,000.00 $1.00
Class B-5 $2,864,327 (17) $100,000.00 $1.00
------------------------------------------
(1) For the Interest Accrual Period for any Distribution Date, the
Pass-Through Rate for the Class 1-A-1 and Class 1-A-2 Certificates will be
a per annum rate equal to the Weighted Average Adjusted Net Mortgage Rate
of the Group 1 Mortgage Loans, minus the Component Rate for the Class
1-A-1 IO and Class 1-A-2 IO Components respectively. The Pass-Through
Rates for the Class 1-A-1 and Class 1-A-2 Certificates for the Interest
Accrual Period related to the first Distribution Date will be 5.586821%
and 5.688665% per annum, respectively.
(2) This Class of Certificates will be Notional Amount Certificates, will have
no Class Certificate Balance and will bear interest on its Notional
Amount.
(3) The Pass-Through Rate for the Class 1-A-IO Certificates for the Interest
Accrual Period for any Distribution Date (x) on or prior to the related
Weighted Average Roll Date will be a per annum rate equal to the Group 1
Weighted Average Component Rate and (y) after the related Weighted Average
Roll Date, will be 0% per annum. The Pass-Through Rate for the Class
1-A-IO Certificates for the Interest Accrual Period for the first
Distribution Date is 0.406227% per annum.
(4) Based on the Notional Amount.
6
(5) For the Interest Accrual Period for any Distribution Date, the
Pass-Through Rate for the Class 2-A-1 Certificates will be a per annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate of the Group
2 Mortgage Loans, minus the Component Rate for the Class 2-A-1 IO
Component. The Pass-Through Rates for the Class 2-A-1 Certificates for the
Interest Accrual Period related to the first Distribution Date will be
5.698581% per annum.
(6) The Pass-Through Rate for the Class 2-A-IO Certificates for the Interest
Accrual Period for any Distribution Date (x) on or prior to the related
Weighted Average Roll Date will be a per annum rate equal to the Group 2
Weighted Average Component Rate and (y) after the related Weighted Average
Roll Date, will be 0% per annum. The Pass-Through Rate for the Class
2-A-IO Certificates for the Interest Accrual Period for the first
Distribution Date is 0.618367% per annum.
(7) For the Interest Accrual Period for any Distribution Date, the
Pass-Through Rate for the Class 3-A-1 Certificates will be a per annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate of the Group
3 Mortgage Loans, minus the Component Rate for the Class 3-A-1 IO
Component. The Pass-Through Rates for the Class 3-A-1 Certificates for the
Interest Accrual Period related to the first Distribution Date will be
5.670095% per annum.
(8) The Pass-Through Rate for the Class 3-A-IO Certificates for the Interest
Accrual Period for any Distribution Date (x) on or prior to the related
Weighted Average Roll Date will be a per annum rate equal to the Group 3
Weighted Average Component Rate and (y) after the related Weighted Average
Roll Date, will be 0% per annum. The Pass-Through Rate for the Class
3-A-IO Certificates for the Interest Accrual Period for the first
Distribution Date is 0.601039% per annum.
(9) For purposes of calculating distributions and allocating losses, the Class
2-3-A2 Certificates are comprised of two P&I Components, the Class 2-A-2
and Class ▇-▇-▇ ▇&▇ Components. The Class Certificate Balance of the Class
2-3-A2 Certificates is equal to the sum of the Component Principal
Balances of the Class 2-A-2 and Class 3-A-2 Components. The initial
Component Principal Balances of the Class 2-A-2 and Class 3-A-2 Components
are $26,052,000 and $10,099,000, respectively. For federal income tax
purposes, the Class 2-A-2 and Class ▇-▇-▇ ▇&▇ Components are intended to
be equivalent to the Class MT-2-A-2 and Class MT-3-A-2 Middle Tier REMIC
Interests.
(10) The Pass-Through Rate for the Class 2-3-A2 Certificates for the Interest
Accrual Period for any Distribution Date will be a per annum rate equal to
the Class 2-3-A2 Weighted Average Component Rate. The Pass-Through Rate
for the Class 2-3-A2 Certificates for the Interest Accrual Period for the
first Distribution Date is 5.800613% per annum.
(11) For the Interest Accrual Period for any Distribution Date, the
Pass-Through Rate for the Class 4-A-1 and Class 4-A-2 Certificates will be
a per annum rate equal to the Weighted Average Adjusted Net Mortgage Rate
of the Group 4 Mortgage Loans, minus the Component Rate for the Class
4-A-1 IO and Class 4-A-2 IO Components, respectively. The Pass-Through
Rates for the Class 4-A-1 and Class 4-A-2 Certificates for the Interest
Accrual Period related to the first Distribution Date will be 5.815270%
and 5.992776% per annum, respectively.
(12) The Pass-Through Rate for the Class 4-A-IO Certificates for the Interest
Accrual Period for any Distribution Date (x) on or prior to the related
Weighted Average Roll Date will be a per annum rate equal to the Group 4
Weighted Average Component Rate and (y) after the related Weighted Average
Roll Date, will be 0% per annum. The Pass-Through Rate for the Class
4-A-IO Certificates for the Interest Accrual Period for the first
Distribution Date is 0.448718% per annum.
7
(13) For the Interest Accrual Period for any Distribution Date, the
Pass-Through Rate for the Class 5-A-1 and Class 5-A-2 Certificates will be
a per annum rate equal to the Weighted Average Adjusted Net Mortgage Rate
of the Group 5 Mortgage Loans, minus the Component Rate for the Class
5-A-1 IO and Class 5-A-2 IO Components, respectively. The Pass-Through
Rates for the Class 5-A-1 and Class 5-A-2 Certificates for the Interest
Accrual Period related to the first Distribution Date will be 5.900000%
and 6.000000% per annum, respectively.
(14) The Pass-Through Rate for the Class 5-A-IO Certificates for the Interest
Accrual Period for any Distribution Date (x) on or prior to the related
Weighted Average Roll Date will be a per annum rate equal to the Group 5
Weighted Average Component Rate and (y) after the related Weighted Average
Roll Date, will be 0% per annum. The Pass-Through Rate for the Class
5-A-IO Certificates for the Interest Accrual Period for the first
Distribution Date is 0.422746% per annum.
(15) For the Interest Accrual Period for any Distribution Date, the
Pass-Through Rate for the Class A-R Certificates will be a per annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Group 1
Mortgage Loans. The Pass-Through Rate for the Class A-R Certificates for
the Interest Accrual Period related to the first Distribution Date will be
6.003231% per annum.
(16) The Class A-R Certificate will 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 $.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 the
Subordinated Certificates for the Interest Accrual Period for the first
Distribution Date is 6.277210% per annum.
It is not intended that the Class A-R Certificates be entitled to any cash
flows pursuant to this Agreement except as provided in Sections 4.02(a)(1)(ii)
and 4.02(a)(1)(iv)(y) hereunder, (that is, the Class A-R Certificates'
entitlement to $100 plus interest thereon in the waterfall).
8
Set forth below are designations of Classes or Components of Certificates
to the categories used in this Agreement:
Accretion Directed
Certificates............ None.
Accrual Certificates.... None.
Accrual Components...... None.
Book-Entry Certificates. All Classes of Certificates other than than the
Physical Certificates.
COFI Certificates....... None.
Component Certificates.. Class 1-A-IO, Class 2-A-IO, Class 3-A-IO, Class
4-A-IO, Class 5-A-IO and Class 2-3-A2
Certificates.
Components.............. Notional Components and P&I Components.
Delay Certificates...... All interest-bearing Classes of Certificates other
than the Non-Delay Certificates, if any.
ERISA-Restricted
Certificates............ The Residual Certificates, the Private
Certificates and, until they have been the subject
of an ERISA Qualifying Underwriting, the Class
1-A-IO, Class 2-A-IO, Class 3-A-IO, Class 4-A-IO
and Class 5-A-IO Certificates; and any Certificate
that does not have or no longer has a rating of at
least BBB- or its equivalent from at least one
Rating Agency.
Group 1
Senior Certificates..... Class 1-A-1, Class 1-A-2, Class 1-A-IO and Class
A-R Certificates.
Group 2
Senior Certificates..... Class 2-A-1 Certificates, Class ▇-▇-▇ ▇&▇
Component and Class 2-A-IO Certificates
Group 3
Senior Certificates..... Class 3-A-1 Certificates, Class ▇-▇-▇ ▇&▇
Component and Class 3-A-IO Certificates.
Group 4
Senior Certificates..... Class 4-A-1, Class 4-A-2 and Class 4-A-IO
Certificates.
9
Group 5
Senior Certificates..... Class 5-A-1, Class 5-A-2 and Class 5-A-IO
Certificates.
LIBOR Certificates...... None.
Non-Delay Certificates.. None.
Notional Amount
Certificates............ Class 1-A-IO, Class 2-A-IO, Class 3-A-IO, Class
4-A-IO and Class 5-A-IO Certificates.
Notional Components..... Class 1-A-1 IO, Class 1-A-2 IO, Class 2-A-1 IO,
Class 2-A-2 IO, Class 3-A-1 IO, Class 3-A-2 IO,
Class 4-A-1 IO, Class 4-A-2 IO, Class 5-A-1 IO and
Class 5-A-2 IO Components.
Offered Certificates.... All Classes of Certificates other than the Private
Certificates.
P&I Components.......... Class 2-A-2 and Class ▇-▇-▇ ▇&▇ Components.
Physical Certificates... Private Certificates and the Residual
Certificates.
Planned Principal
Classes................. None.
Planned Principal
Components.............. None.
Private Certificates.... Class B-3, Class B-4 and Class B-5 Certificates.
Rating Agencies......... S&P and ▇▇▇▇▇'▇.
Regular Certificates.... All Classes of Certificates, other than the
Residual Certificates.
Residual Certificates... Class A-R Certificates.
Senior Certificate
Group................... Group 1 Senior Certificates, Group 2 Senior
Certificates, Group 3 Senior Certificates, Group 4
Senior Certificates and Group 5 Senior
Certificates, as applicable.
Senior Certificates..... Class 1-A-1, Class 1-A-2, Class 1-A-IO, Class
2-A-1, Class 2-A-IO, Class 3-A-1, Class 3-A-IO,
Class 2-3-A2, Class 4-A-1, Class 4-A-2, Class
4-A-IO, Class 5-A-1, Class 5-A-2, Class 5-A-IO and
Class A-R Certificates.
Subordinated
Certificates............ Class M, Class B-1, Class B-2, Class B-3, Class
B-4 and Class B-5 Certificates.
10
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to statistical
rating agencies not designated above as Rating Agencies shall be of no force or
effect.
11
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Account: Any Escrow Account, the Certificate Account, the Distribution
Account 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: Not applicable.
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 Expense Fee Rate.
Adjustment Date: A date specified in each Mortgage Note as a date on which
the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: As to a Loan Group, the payment required to be made by the Master
Servicer with respect to any Distribution Date pursuant to Section 4.01, the
amount of any such payment being equal to the aggregate of payments of principal
and interest (net of the Master Servicing Fee) on the Mortgage Loans in such
Loan Group that were due on the related Due Date and not received by the Master
Servicer as of the close of business on the related Determination Date, together
with an amount equivalent to interest on each Mortgage Loan as to which the
related Mortgaged Property is an REO Property net of any net income with respect
to 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 Subordinated Percentage: As to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is equal to the
aggregate Class Certificate Balance of the Subordinated Certificates immediately
prior to such Distribution Date and the denominator of
12
which is the aggregate Stated Principal Balance of all the Mortgage Loans 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 such Due Date).
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements this Pooling and Servicing Agreement.
Allocable Share: As to any Distribution Date, any Loan Group and any Class
of Certificates or P&I Component, the ratio that the amount calculated with
respect to such Distribution Date (A) with respect to the Senior Certificates
(or P&I Components) 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 fourth 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 aggregate amount calculated with
respect to such Distribution Date for each such related Class of Certificates or
P&I Component 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)) or the definition of Assumed Interest Amount for
such Loan Group and Class, as applicable.
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 that Loan Group and (ii) all Scheduled Payments
due after the related Due Date relating to that Loan Group.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to a Mortgage Loan other than a Refinancing
Mortgage Loan, the lesser of (a) the value of the Mortgaged Property based upon
the appraisal made at the time of the origination of such Mortgage Loan and (b)
the sales price of the Mortgaged Property at the time of the origination of such
Mortgage Loan. 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. With respect to a Streamlined Documentation Mortgage Loan, (a) if
the loan-to-value ratio with respect to the Original Mortgage Loan at the time
of the origination thereof was 80% or less and the loan amount of the new
mortgage loan is $650,000 or less, the value of the Mortgaged Property based
upon the appraisal made at the time of the origination of the Original Mortgage
Loan and (b) if the loan-to-value ratio with respect to the Original Mortgage
Loan at the time of the origination thereof was greater than 80% or the loan
amount of the new mortgage loan 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.
13
Assumed Interest Amount: With respect to any Distribution Date, any Class
of Subordinated Certificates and any Loan Group, one month's interest accrued
during the related Interest Accrual Period at the Pass-Through Rate on the
related Subordinated Portion immediately prior to that Distribution Date.
Available Funds: As to any Distribution Date and each Loan Group, the sum
of (a) the aggregate amount held in the Certificate Account at the close of
business on the related Determination Date in respect of the related Mortgage
Loans pursuant to Section 3.05(b) net of the related Amount Held for Future
Distribution and net of amounts permitted to be withdrawn from the Certificate
Account pursuant to clauses (i) - (viii), inclusive, of Section 3.08(a) in
respect of the Mortgage Loans in that Loan Group and amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i) - (v),
inclusive, of Section 3.08(b) in respect of the Mortgage Loans in that Loan
Group, (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 and (d) the Transfer Payment Received for such Loan Group
less the Transfer Payment Made for such Loan Group; provided, however, that on
the fourth 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 Groups and on any
Distribution Date thereafter, Available Funds shall be calculated based on all
the Mortgage Loans in the Mortgage Pool, as opposed to the Mortgage Loans in the
related Loan Group.
Bankruptcy Code: Title 11 of the United States Code, as amended.
Benefit Plan Opinion: As defined in Section 5.02(b).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the City of New York, New York, or the States
of California or Texas or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Calculation Rate: For each Distribution Date, in the case of the Class A
and Class B Lower Tier REMIC Interests, 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%.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached this Agreement as exhibits.
Certificate Account: The separate Eligible Account or Accounts created and
maintained by the Master Servicer pursuant to Section 3.05 with a depository
institution, initially Countrywide Bank, N.A., in the name of the Master
Servicer for the benefit of the Trustee on behalf of Certificateholders and
designated "Countrywide Home Loans Servicing LP in trust for the registered
holders of CHL Mortgage Pass-Through Trust 2007-HYB1, Mortgage Pass-Through
Certificates Series 2007-HYB1."
14
Certificate Balance: With respect to any Certificate, other than a
Notional Amount Certificate, at any date, the maximum dollar amount of principal
to which the Holder thereof is then entitled under this Agreement, such amount
being equal to the Denomination of that Certificate (A) plus any increase in the
Certificate Balance of such Certificate pursuant to Section 4.02 due to the
receipt of Subsequent Recoveries (B) minus the sum of (i) all distributions of
principal previously made with respect to that Certificate and (ii) all Realized
Losses allocated to that Certificate and, in the case of any Subordinated
Certificates, all other reductions in Certificate Balance previously allocated
to that Certificate pursuant to Section 4.04 without duplication. The Notional
Amount Certificates have no Certificate Balances.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate. For the purposes of
this Agreement, in order for a Certificate Owner to enforce any of its rights
under this Agreement, it shall first have to provide evidence of its beneficial
ownership interest in a Certificate that is reasonably satisfactory to the
Trustee, the Depositor, and/or the Master Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor shall be deemed not to
be Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision of this Agreement (other than the
second sentence of Section 10.01) that requires the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action
under this Agreement. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in determining
which Certificates are registered in the name of an affiliate of the Depositor.
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class 2-3-A2 Weighted Average Component Rate: For the Interest Accrual
Period for any Distribution Date, a per annum rate equal to the average of the
Component Rates of the Class 2-A-2 and Class ▇-▇-▇ ▇&▇ Components, weighted on
the basis of their respective Component Principal Balances for such Distribution
Date.
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.
15
Class Interest Shortfall: As to any Distribution Date and Class or P&I
Component, the amount by which the amount described in clause (i) of the
definition of Class Optimal Interest Distribution Amount for such Class or P&I
Component exceeds the amount of interest actually distributed on such Class or
P&I Component 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 any P&I Component, the sum of
(i) one month's interest accrued during the related Interest Accrual Period at
the Pass-Through Rate for such Class or P&I Component on the related Class
Certificate Balance, Notional Amount or Component Principal Balance, as
applicable, as of the last day of the related Interest Accrual Period, subject
to reduction as provided in Section 4.02(d) and (ii) any Class Unpaid Interest
Amounts for such Class or P&I Component.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Certificate Balance of such Class of Certificates
immediately prior to such Distribution Date divided by (b) the aggregate of the
Class Certificate Balances of all Classes of Certificates immediately prior to
such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates or P&I Component, the amount by which the
aggregate Class Interest Shortfalls for such Class or P&I Component on prior
Distribution Dates exceeds the amount distributed on such Class or P&I Component
on prior Distribution Dates pursuant to clause (ii) of the definition of Class
Optimal Interest Distribution Amount.
Closing Date: January 30, 2007.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: The Monthly Weighted Average Cost of Funds Index for the Eleventh
District Savings Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI Certificates: As specified in the Preliminary Statement.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: As to any Distribution Date and Loan Group, an
amount equal to one-half of the Master Servicing Fee for the related Loan Group
for such Distribution Date.
Component: As specified in the Preliminary Statement.
Component Notional Amount: For each Notional Component an amount equal to
(i) for any date prior to and including the last day of the Interest Accrual
Period for the related Weighted Average Roll Date, the Class Certificate Balance
or Component Principal Balance as of such date of the Class of Certificates (or
P&I Component, in the case of the Class 2-A-2 IO and Class 3-A-2 IO Components)
with the same alpha-numeric designation as such Notional
16
Component, and (ii) for any date after the last day of the Interest Accrual
Period for the related Weighted Average Roll Date, $0.
Component Principal Balance: With respect to any P&I Component at any date
of determination, the initial Component Principal Balance of such P&I Component
(i) plus any increase in the Component Principal Balance of such P&I Component
pursuant to Section 4.02 due to the receipt of Subsequent Recoveries, (ii) minus
the sum of (A) all distributions of principal previously made with respect to
that P&I Component and (B) all Realized Losses allocated to that P&I Component
before such date of determination.
Component Rate: For each Notional Component, for the Interest Accrual
Period for any Distribution Date (x) on or prior to the related Weighted Average
Roll Date, the per annum rate equal to the applicable Component Rate set forth
in the table below and (y) after the related Weighted Average Roll Date, 0% per
annum.
Designation Component Rate
----------- --------------
Class 1-A-1 IO Component.. 0.416410%
Class 1-A-2 IO Component.. 0.314566%
Class 2-A-1 IO Component.. 0.628570%
Class 2-A-2 IO Component.. 0.526538%
Class 3-A-1 IO Component.. 0.614091%
Class 3-A-2 IO Component.. 0.483573%
Class 4-A-1 IO Component.. 0.466468%
Class 4-A-2 IO Component.. 0.288962%
Class 5-A-1 IO Component.. 0.432746%
Class 5-A-2 IO Component.. 0.332746%
For the Class ▇-▇-▇ ▇&▇ Component for the Interest Accrual Period for any
Distribution Date, the per annum rate equal to the Weighted Average Adjusted Net
Mortgage Rate of the Group 2 Mortgage Loans, minus the Component Rate for the
Class 2-A-2 IO Component.
For the Class ▇-▇-▇ ▇&▇ Component for the Interest Accrual Period for any
Distribution Date, the per annum rate equal to the Weighted Average Adjusted Net
Mortgage Rate of the Group 3 Mortgage Loans, minus the Component Rate for the
Class 3-A-2 IO Component.
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.
17
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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (Attn: Mortgage-Backed Securities Group, CHL Mortgage Pass-Through
Trust 2007-HYB1), facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, and which is the address to
which notices to and correspondence with the Trustee should be directed.
Countrywide: Countrywide Home Loans, Inc., a New York corporation and its
successors and assigns, in its capacity as the seller of the Countrywide
Mortgage Loans to the Depositor.
Countrywide Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Countrywide is the applicable Seller.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership and its successors and assigns.
Covered Certificates: Not applicable.
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: For each Mortgage Loan, the later of January 1, 2007 and the
date of origination for that Mortgage Loan.
Cut-off Date Pool Principal Balance: $636,625,428.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
18
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then-outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of such court which is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: As defined in Section 2.02(a).
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to Trustee on the Closing
Date. With respect to up to 50% of the Mortgage Loans in each Loan Group, the
Depositor may deliver all or a portion of each related Mortgage File to the
Trustee not later than thirty days after the Closing Date. To the extent that
Countrywide Servicing shall be in possession of any Mortgage Files with respect
to any Delay Delivery Mortgage Loan, until delivery of such Mortgage File to the
Trustee as provided in Section 2.01, Countrywide Servicing shall hold such files
as Master Servicer hereunder, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Denomination: With respect to each Certificate, the amount set forth on
the face of that Certificate as the "Initial Certificate Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if neither
of the foregoing, the Percentage Interest appearing on the face thereof.
Depositor: CWMBS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 22nd day of each
month or, if such 22nd day is not a Business Day, the preceding Business Day;
provided, however, that if such 22nd day or such Business Day, whichever is
applicable, is less than two Business Days prior to the related Distribution
Date, the Determination Date shall be the first Business Day that is two
Business Days preceding such Distribution Date.
19
Distribution Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.05(d) in the name of the Trustee for the
benefit of the Certificateholders and designated "The Bank of New York in trust
for registered holders of CHL Mortgage Pass-Through Trust 2007-HYB1, Mortgage
Pass-Through Certificates, Series 2007-HYB1." 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, or if the 25th day
is not a Business Day, the next Business Day commencing in February 2007.
Due Date: With respect to a Mortgage Loan, the date on which the Scheduled
Payments are due on that Mortgage Loan. With respect to any Distribution Date,
the first day of the month in which that Distribution Date occurs.
Due Period: With respect to any Distribution Date, the period beginning on
the second day of the calendar month preceding the month in which such
Distribution Date occurs and ending on the first day of the calendar month in
which such Distribution Date occurs.
▇▇▇▇▇: 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 Moody's or Fitch and one of the two highest short-term
ratings of S&P, if S&P is a Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
(a) the trust department of a federal or state chartered depository institution
or (b) a trust company, acting in its fiduciary capacity or (iv) any 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 EPD Protected Mortgage Loan: A Mortgage Loan that (i) was
originated not more than one year prior to the Closing Date, (ii) was purchased
by a Seller or one of its affiliates pursuant to a purchase agreement containing
provisions under which the seller thereunder has become obligated to repurchase
such Mortgage Loan from Countrywide due to a Scheduled Payment due on or prior
to the first Scheduled Payment owing to the Trust Fund
20
becoming delinquent and (iii) was not purchased through Countrywide Home Loan
Inc.'s Correspondent Lending Division.
Eligible Repurchase Month: As defined in Section 3.11.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a).
Event of Default: As defined in Section 7.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the amount,
if any, by which the sum of any Liquidation Proceeds of such Mortgage Loan
received in 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 Fee Rate: As to each Mortgage Loan and any date of determination,
the sum of (a) the related Master Servicing Fee Rate, (b) the Trustee Fee Rate
and (c) the per annum rate of the related lender paid mortgage insurance
premium, if any.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor to the Federal
Home Loan Mortgage Corporation.
Final Certification: As defined in Section 2.02(a).
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement Act
of 1989.
21
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., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage Surveillance Group, or
such other address as Fitch may hereafter furnish to the Depositor and the
Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor to the Federal National
Mortgage Association.
Form 10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending (a) against such Person, or (b)
against any of the Trust Fund, the Depositor, the Trustee, any co-trustee, the
Master Servicer or any Subservicer, if such Person has actual knowledge thereof.
Form 10-K Disclosure Item: With respect to any Person, (a) any Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
Gross Margin: With respect to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note that is added to the Mortgage Index on each
Adjustment Date in accordance with the terms of the related Mortgage Note used
to determine the Mortgage Rate for such Mortgage Loan.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
Group 1 Weighted Average Component Rate: For the Interest Accrual Period
for any Distribution Date, a per annum rate equal to the average of the
Component Rates of the Class 1-A-1 IO and Class 1-A-2 IO Components, weighted on
the basis of their respective Component Notional Amounts as of the last day of
such Interest Accrual Period.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Group 2 Weighted Average Component Rate: For the Interest Accrual Period
for any Distribution Date, a per annum rate equal to the average of the
Component Rates of the Class 2-A-1 IO and Class 2-A-2 IO Components, weighted on
the basis of their respective Component Notional Amounts as of the last day of
such Interest Accrual Period.
Group 3 Senior Certificates: As specified in the Preliminary Statement.
Group 3 Weighted Average Component Rate: For the Interest Accrual Period
for any Distribution Date, a per annum rate equal to the average of the
Component Rates of the Class 3-A-1 IO and Class 3-A-2 IO Components, weighted on
the basis of their respective Component Notional Amounts as of the last day of
such Interest Accrual Period.
Group 4 Senior Certificates: As specified in the Preliminary Statement.
Group 4 Weighted Average Component Rate: For the Interest Accrual Period
for any Distribution Date, a per annum rate equal to the average of the
Component Rates of the Class 4-
22
A-1 IO and Class 4-A-2 IO Components, weighted on the basis of their respective
Component Notional Amounts as of the last day of such Interest Accrual Period.
Group 5 Senior Certificates: As specified in the Preliminary Statement.
Group 5 Weighted Average Component Rate: For the Interest Accrual Period
for any Distribution Date, a per annum rate equal to the average of the
Component Rates of the Class 5-A-1 IO and Class 5-A-2 IO Components, weighted on
the basis of their respective Component Notional Amounts as of the last day of
such Interest Accrual Period.
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).
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 any Distribution Date, the
calendar month prior to the month of such Distribution Date.
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 T hereto, as
updated pursuant to Section 11.04.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender PMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the Mortgagor) acquires the Primary Insurance Policy and charges
the related Mortgagor an interest premium.
LIBOR Certificates: As specified in the Preliminary Statement.
Limited Exchange Act Reporting Obligations: The obligations of the Master
Servicer under Section 3.16(b), Section 6.02 and Section 6.04 with respect to
notice and information to be provided to the Depositor and Article XI (except
Section 11.07(a)(1) and (2)).
23
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Master Servicer has determined (in accordance with this Agreement) that it has
received all amounts it expects to receive in connection with the liquidation of
such Mortgage Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Master Servicing Fees, Servicing Advances
and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4
or Loan Group 5, 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 3 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 4: All Mortgage Loans identified as Loan Group 4 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 5: All Mortgage Loans identified as Loan Group 5 Mortgage Loans
on the Mortgage Loan Schedule.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at that date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
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.
24
Master Servicer: Countrywide Servicing, and its successors and assigns, in
its capacity as master servicer hereunder and, if a successor master servicer is
appointed under this Agreement, such successor.
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
of such Distribution Date (prior to giving effect to any Scheduled Payments due
on such Mortgage Loan on such Due Date), subject to reduction as provided in
Section 3.14.
Master Servicing Fee Rate: With respect to each Mortgage Loan and Due
Date, the amount set forth in the Mortgage Loan Schedule for such Due Date.
Maximum Mortgage Rate: With respect to each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the maximum Mortgage Rate thereunder.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
to Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS(R)
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: With respect to each Mortgage Loan, the greater of
(a) the Gross Margin set forth in the related Mortgage Note and (b) the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
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: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto. If
▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Residential Pass-Through Monitoring, or such other address as Moody's may
hereafter furnish to the Depositor or the Master Servicer.
25
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on an estate in fee simple or leasehold interest in real property securing
a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to
a particular Mortgage Loan and any additional documents delivered to the Trustee
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Index: As to each Mortgage Loan, the index from time to time in
effect for adjustment of the Mortgage Rate as set forth as such on the related
Mortgage Note.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the addition of Substitute Mortgage
Loans, and the deletion of Deleted Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee as part of the Trust Fund and from
time to time subject to this Agreement, attached to this Agreement as Schedule
I, setting forth the following information with respect to each Mortgage Loan by
Loan Group:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the Mortgaged
Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling at the time
of origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is either (a)
a detached or attached single family dwelling, (b) a dwelling in a
de minimis PUD, (c) a condominium unit or PUD (other than a de
minimis PUD), (d) a two- to four-unit residential property or (e) a
Cooperative Unit;
(xi) the Mortgage Rate in effect as of the Cut-off Date;
(xii) the Master Servicing Fee Rate both before and after the
initial Adjustment Date for each Mortgage Loan;
26
(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 of such Mortgage Loan as of the Cut-off
Date;
(xvii) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan;
(xviii) a code indicating whether the Mortgage Loan is a Countrywide
Mortgage Loan, a Park Granada Mortgage Loan, a Park Monaco Mortgage
Loan or a Park Sienna Mortgage Loan; and
(xix) with respect to each Mortgage Loan, the Gross Margin, the
Mortgage Index, the Maximum Mortgage Rate, the Minimum Mortgage
Rate, the Periodic Rate Cap and the first Adjustment Date for such
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.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to the provisions of this Agreement as from time to time are
held as a part of the Trust Fund (including any REO Property), the mortgage
loans so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time, net of any interest premium charged by the mortgagee to obtain or
maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group, the amount by which the aggregate of the Prepayment Interest Shortfalls
for such Loan Group for such Distribution Date exceeds an amount equal to the
sum of (a) the Compensating Interest for
27
such Loan Group and Distribution Date and (b) the excess, if any, of the
Compensating Interest for each other Loan Group for that Distribution Date over
the Prepayment Interest Shortfalls in each such other Loan Group for such
Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: For the Class 1-A-IO, Class 2-A-IO, Class 3-A-IO, Class
4-A-IO and Class 5-A-IO Certificates and any date of determination an amount
equal to the aggregate Component Notional Amount of the Components related to
such Class of Certificates on such date of determination.
Notional Amount Certificates: As specified in the Preliminary Statement.
Notional Component: 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), (iii) if provided for in this Agreement, signed by a Servicing
Officer, as the case may be, and delivered to the Depositor and the Trustee, as
the case may be, as required by this Agreement or (iv) in the case of any other
Person, signed by an authorized officer of such Person.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, a Seller or the Master Servicer, including in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of the Depositor, a Seller and the Master Servicer, (ii)
not have any direct financial interest in the Depositor, a Seller or the Master
Servicer or in any affiliate thereof, and (iii) not be connected with the
Depositor, a Seller or the Master Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Optional Termination: The termination of the trust created under this
Agreement in connection with the purchase of the Mortgage Loans pursuant to
Section 9.01.
28
Original Applicable Credit Support Percentage: With respect to each of the
following Classes of Subordinated Certificates, the corresponding percentage
described below, as of the Closing Date:
Class M 7.40%
Class B-1 4.75%
Class B-2 3.05%
Class B-3 2.00%
Class B-4 1.15%
Class B-5 0.45%
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 fourth Senior
Termination Date, the Subordinated Percentage for a Loan Group of the aggregate
Stated Principal Balance of the Mortgage Loans in such Loan Group, in each case
as of the Cut-off Date or, if such date is after the fourth Senior Termination
Date, the aggregate Class Certificate Balance of the Subordinated Certificates
as of the Closing Date.
OTS: The Office of Thrift Supervision.
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.
P&I Component: As specified in the Preliminary Statement.
Park Granada: Park Granada LLC, a Delaware limited liability company, and
its successors and assigns, in its capacity as the seller of the Park Granada
Mortgage Loans to the Depositor.
29
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 P&I
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.
Periodic Rate Cap: With respect to each Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date from the Mortgage Rate in effect
immediately prior to such Adjustment Date.
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;
30
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial paper and/or
long term unsecured debt obligations of such depository institution
or trust company (or in the case of the principal depository
institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of such holding company, but
only if ▇▇▇▇▇'▇ 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)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) an "electing large
partnership" as defined in section 775 of the Code, (vi) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States or a trust if a court
31
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust unless such Person
has furnished the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8ECI or any applicable successor form, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Residual Certificate to such
Person may cause any REMIC created under this Agreement to fail to qualify as a
REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: With respect to any Planned Principal Class or Planned
Principal Component and any Distribution Date appearing in Schedule V, the
amount appearing opposite such Distribution Date for such Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Planned Principal Components: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the aggregate
of the Stated Principal Balances of the Mortgage Loans that were Outstanding
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments received in the
Prepayment Period in which such Due Date occurs) and, as to any other date of
determination, the aggregate of the Stated Principal Balances of the Outstanding
Mortgage Loans as of such date.
Prepayment Interest Excess: As to any Principal Prepayment received by the
Master Servicer from the first day through the fifteenth day of any calendar
month (other than the calendar month in which the Cut-off Date occurs), all
amounts paid by the related Mortgagor in respect of interest on such Principal
Prepayment.
Prepayment Interest Shortfall: As to any Distribution Date, any Mortgage
Loan and any Principal Prepayment received during the related Prepayment Period,
the amount, if any, by which one month's interest at the related Mortgage Rate,
net of the related Master Servicing Fee Rate, on such Principal Prepayment
exceeds the amount of interest paid in connection with such Principal
Prepayment.
Prepayment Period: As to any Distribution Date and the related Due Date,
the period beginning on the sixteenth day of the calendar month preceding the
month in which such
32
Distribution Date occurs (or in the case of the first Distribution Date, from
January 1, 2007) and ending on the fifteenth day of the calendar month in which
such Distribution Date occurs.
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 any Loan Group, an
amount equal to (i) 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 such Loan Group on the related Due Date, (b)
the principal portion of the Purchase Price of each Mortgage Loan in such Loan
Group that was repurchased by the applicable Seller or purchased by the Master
Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan in
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 such 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 on the Mortgage Loans in such Loan Group received during the calendar
month preceding the month of such Distribution Date and (h) the principal
portion of any Transfer Payments Received for such Loan Group, minus (ii) the
principal portion of any Transfer Payments Made for such Loan Group and
Distribution Date in accordance with Section 4.05.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance with
the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal Relocation Payment: A payment from any Loan Group to a 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
33
shall include a proportionate allocation of the Realized Losses from the
Mortgage Loans of the Loan Group.
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date, the Subordinated Principal
Distribution Amount and any Class of Subordinated Certificates, the portion of
the Subordinated Principal Distribution Amount allocable to such Class, equal to
the product of the Subordinated Principal Distribution Amount on such
Distribution Date and a fraction, the numerator of which is the related Class
Certificate Balance thereof and the denominator of which is the aggregate of the
Class Certificate Balances of the Subordinated Certificates.
Pro Rata Subordinated Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Percentage for such Distribution Date.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Prospectus: The prospectus dated November 14, 2006 generally relating to
mortgage-pass through certificates to be sold by the Depositor.
Prospectus Supplement: The Prospectus Supplement dated January 29, 2007
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 of this Agreement 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 of
this Agreement that arises out of a violation of any predatory or abusive
lending law with respect to the related Mortgage Loan.
Qualified Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
34
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, identified as a "Rating Agency" under
the Underwriter Exemption, as is designated by the Depositor, notice of which
designation shall be given to the Trustee. References in this Agreement to a
given rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
To the extent the Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of Realized Losses with respect to that
Mortgage Loan will be reduced by the amount of those Subsequent Recoveries.
Recognition Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative Property.
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
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.
35
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or any similar law, 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.
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;
(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;
36
(f) with respect to the Master Servicer only, if the Master Servicer
becomes aware that (i) any material enhancement or support specified in Item
1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB that was
previously applicable regarding one or more Classes of the Certificates has
terminated other than by expiration of the contract on its stated termination
date or as a result of all parties completing their obligations under such
agreement; (ii) any material enhancement specified in Item 1114(a)(1) through
(3) of Regulation AB or Item 1115 of Regulation AB has been added with respect
to one or more Classes of the Certificates; or (iii) any existing material
enhancement or support specified in Item 1114(a)(1) through (3) of Regulation AB
or Item 1115 of Regulation AB with respect to one or more Classes of the
Certificates has been materially amended or modified; and
(g) with respect to the Trustee, the Master Servicer and the
Depositor only, a required distribution to Holders of the Certificates is not
made as of the required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Master Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to Section
11.08(b) to be "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor shall refer
only to the Subcontractor of such Person and shall not refer to Subcontractors
generally.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N to this
Agreement, as appropriate.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also to whom, with respect to a particular matter, such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
Restricted Classes: As defined in Section 4.02(e).
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: As defined in Section 11.05.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified in this Agreement, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide, Park Granada, Park Monaco or Park Sienna, as
applicable.
37
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 Class of Senior Certificates of such
Senior Certificate Group (other than the Notional Amount Certificates)
immediately prior to such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of Mortgage Loans in the related Loan Group
as of the Due Date in the month preceding the month of such Distribution Date;
provided, however, that on any Distribution Date after the fourth 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 Class
of Senior Certificates (other than the Notional Amount Certificates) immediately
prior to such Distribution Date and the denominator of which is the aggregate
Class Certificate Balance of all Classes of Certificates (other than the
Notional Amount Certificates) immediately prior to such Distribution Date. In no
event will any Senior Percentage be greater than 100%.
Senior Prepayment Percentage: As to a Senior Certificate Group and any
Distribution Date during the ten years beginning on the first Distribution Date,
100%. The related Senior Prepayment Percentage for any Senior Certificate Group
and Distribution Date occurring on or after the tenth anniversary of the first
Distribution Date will, except as provided in this Agreement, 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; provided, however, that if
on any Distribution Date the related Senior Percentage exceeds the Senior
Percentage of such Senior Certificate Group as of the Closing Date, then the
Senior Prepayment Percentage for each Senior Certificate Group for such
Distribution Date will equal 100%. Notwithstanding the foregoing, no decrease in
the related Senior Prepayment Percentage will occur unless both of the Senior
Step Down Conditions are satisfied with respect to all Loan Groups.
Notwithstanding the foregoing, if the Two Times Test is satisfied on a
Distribution Date, the Senior Prepayment Percentage for each Senior Certificate
Group will equal (x) if such Distribution Date is on or prior to the
Distribution Date in January 2010, the related Senior Percentage for such
Distribution Date plus 50% of the related Subordinated Percentage for that
Distribution Date and (y) if such Distribution Date is after the Distribution
Date in January 2010, the related Senior Percentage.
Senior Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i) the related Senior Percentage of all
amounts described in clauses (a)
38
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 in the month preceding the month of that Distribution
Date and (y) the related Senior Prepayment Percentage of the amount of the
Liquidation Proceeds allocable to principal received on the Mortgage Loan, (iii)
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; (iv) the principal portion of any Transfer
Payments Received for that Loan Group and Distribution Date; provided, however,
on any Distribution Date after the fourth Senior Termination Date, the Senior
Principal Distribution Amount for the remaining Senior Certificate Group will be
calculated pursuant to the above formula based on all the Mortgage Loans, as
opposed to the Mortgage Loans in the related Loan Group.
Senior Step Down Conditions: On or prior to the fourth Senior Termination
Date, with respect to the Mortgage Loans in a Loan Group and after the fourth
Senior Termination Date, with respect to all Mortgage Loans: (i) the aggregate
Stated Principal Balance of such 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), does not equal or exceed 50% of (1) on or prior to the fourth Senior
Termination Date, the Subordinated Percentage for such Loan Group of the
aggregate Stated Principal Balance of the Mortgage Loans in such Loan Group or
(2) after the fourth Senior Termination Date, the aggregate Class Certificate
Balance of the Subordinated Certificates on the Distribution Date and (ii)
cumulative Realized Losses on such Mortgage Loans do not exceed: (a) commencing
with the Distribution Date on the tenth anniversary of the first Distribution
Date, 30% of the Original Subordinate Principal Balance, (b) commencing with the
Distribution Date on the eleventh anniversary of the first Distribution Date,
35% of the Original Subordinate Principal Balance, (c) commencing with the
Distribution Date on the twelfth anniversary of the first Distribution Date, 40%
of the Original Subordinate Principal Balance, (d) commencing the Distribution
Date on the thirteenth anniversary of the first Distribution Date, 45% of the
Original Subordinate Principal Balance and (e) commencing with the Distribution
Date on the fourteenth anniversary of the first Distribution Date, 50% of the
Original Subordinate Principal Balance.
Senior Termination Date: For each Senior Certificate Group, the
Distribution Date on which the aggregate Class Certificate Balance of the
related Classes of Senior Certificates have 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.
39
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
S&P: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
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 Ratings Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Mortgage Surveillance Monitoring, or such other address as S&P
may hereafter furnish to the Depositor and the Master Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date as specified in 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) 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 with respect to
that Mortgage Loan, (iii) Principal Prepayments received through the last day of
the related Prepayment Period with respect to that Mortgage Loan and (iv) any
Realized Loss previously incurred in connection with a Deficient Valuation. The
Stated Principal Balance of any Mortgage Loan that becomes a Liquidated 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 Home Loan Inc.'s Streamlined Loan Documentation Program
then in effect. For the purposes of this Agreement, a Mortgagor is eligible for
a mortgage pursuant to Countrywide's Streamlined Loan Documentation Program if
that Mortgagor is refinancing an existing mortgage loan that was originated or
acquired by Countrywide where, among other things, the mortgage loan has not
been more than 30 days delinquent in payment during the previous twelve month
period.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Master Servicer or a Subservicer or the Trustee, as the case may be.
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 Weighted Average Adjusted Net
Mortgage Rate of the related Mortgage Loans 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.
40
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Loan Group and Distribution Date on or
prior to the fourth Senior Termination Date, 100% minus the Senior Percentage
for such Distribution Date for the Senior Certificate Group relating to such
Loan Group. As to any Distribution Date after the fourth Senior Termination
Date, 100% minus the Senior Percentage for such Distribution Date.
Subordinated Portion: For any Distribution Date and Loan Group, an amount
equal to the aggregate Stated Principal Balance of the Mortgage Loans in that
Loan Group as of the Due Date in the month prior to the month of such
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date), minus the aggregate Class
Certificate Balance of the related Senior Certificates immediately prior to such
Distribution Date. For purposes of this computation, the Class 2-3-A2
Certificates shall be treated as two Certificates consisting of the MT-2-A-2
Middle Tier REMIC Interest and the MT-3-A-2 Middle Tier REMIC Interest.
Subordinated Prepayment Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Prepayment Percentage for such Distribution
Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the excess of (A) the sum,
not less than zero, of the sum of (i) the Subordinated Percentage of 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 allocated to principal received with respect thereto remaining after
application thereof pursuant to clause (ii) of the definition of "Senior
Principal Distribution Amount", up to the Subordinated Percentage for such Loan
Group of the Stated Principal Balance of that Mortgage Loan, and (iii) the sum
of 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 principal portion of any
Transfer Payments Made for such Loan Group; provided, however, that on any
Distribution Date after the fourth 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 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.
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.
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
41
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of, and not more than 10% less than the Stated
Principal Balance of the Deleted Mortgage Loan; (ii) be accruing interest at a
rate no lower than and not more than 1% per annum higher than, that of the
Deleted Mortgage Loan; (iii) have a Loan-to-Value Ratio no higher than that of
the Deleted Mortgage Loan; (iv) have a remaining term to maturity no greater
than (and not more than one year less than that of) the Deleted Mortgage Loan;
(v) have a Maximum Mortgage Rate not more than 1% per annum higher or lower
than, that of the Deleted Mortgage Loan; (vi) have a Minimum Mortgage Rate
specified in its related mortgage note not more than 1% per annum higher or
lower than the Minimum Mortgage Rate of the Deleted Mortgage Loan; (vii) have
the same Mortgage Index, Mortgage Index reset period and Periodic Rate Cap as
the Deleted Mortgage Loan and a Gross Margin not more than 1% per annum higher
or lower than that of the Deleted Mortgage Loan; (viii) not be a Cooperative
Loan unless the Deleted Mortgage Loan was a Cooperative Loan; and (ix) comply
with each representation and warranty set forth in Section 2.03.
Substitution Adjustment Amount: The meaning ascribed to such term pursuant
to Section 2.03.
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 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.
Transfer Payment Made: As defined in Section 4.05.
Transfer Payment Received: As defined in Section 4.05.
Trust Fund: The corpus of the trust created under this Agreement
consisting of (i) the Mortgage Loans and all interest and principal received on
or with respect thereto after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance of the Mortgage Loans; (ii) the
Certificate Account and the Distribution Account and all amounts deposited
therein pursuant to the applicable provisions of this Agreement; (iii) property
that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure or otherwise; and (iv) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed under this Agreement, such successor.
42
Trustee Advance Rate: With respect to any Advance made by the Trustee
pursuant to Section 4.01(b), a per annum rate of interest determined as of the
date of such Advance equal to the Prime Rate in effect on such date plus 5.00%.
Trustee Fee: As to any Distribution Date, an amount equal to one-twelfth
of the Trustee Fee Rate multiplied by the Pool Stated Principal Balance with
respect to such Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.009% per annum.
Two Times Test: As to any Distribution Date, if (i) the Aggregate
Subordinated Percentage is at least 200% of the Aggregate Subordinated
Percentage as of the Closing Date, (ii) clause (i) of the Senior Step Down
Conditions is satisfied and (iii) the cumulative Realized Losses on all the
Mortgage Loans do not exceed (x) with respect to any Distribution Date on or
prior to January 2010, 20% of the aggregate Class Certificate Balance of the
Subordinated Certificates as of the Closing Date or (y) with respect to any
Distribution Date after January 2010, 30% of the aggregate Class Certificate
Balance of the Subordinated Certificates as of the Closing Date.
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.
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.
Weighted Average Adjusted Net Mortgage Rate: For each Loan Group and any
Distribution Date, the average of the Adjusted Net Mortgage Rate of each
Mortgage Loan in that Loan Group, weighted on the basis of its Stated Principal
Balance as of the Due Date in the month preceding the month of such Distribution
Date (after giving effect to Principal Prepayments in the Prepayment Period
related to that Due Date).
Weighted Average Roll Date: For each applicable Loan Group and related
Class of Certificates and Components, the Distribution Date in the month set
forth below:
Weighted Average
Loan Group Roll Date
---------- ----------------
1 December 2009
2 December 2011
3 November 2011
4 November 2013
43
5 December 2016
SECTION 1.02. Certain Interpretative Principles.
All terms defined in this Agreement shall have the defined meanings when
used in any certificate, agreement or other document delivered pursuant hereto
unless otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (b) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement (or the certificate, agreement or other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term "including" means "including without limitation"; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person's permitted successors and assigns;
and (h) a Mortgage Loan is "30 days delinquent" if any Scheduled Payment has not
been received by the close of business on the day immediately preceding the Due
Date on which the next Scheduled Payment is due. Similarly for "60 days
delinquent," "90 days delinquent" and so on.
44
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans
(a) Each Seller, concurrently with the execution and delivery of this
Agreement, hereby sells, transfers, assigns, sets over and otherwise conveys to
the Depositor, without recourse, all its respective right, title and interest in
and to the related Mortgage Loans, including all interest and principal received
or receivable by such Seller, on or with respect to the applicable Mortgage
Loans after the Cut-off Date and all interest and principal payments on the
related Mortgage Loans received prior to the 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 Mortgage Loans on or
before the 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).
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 Mortgage Loan that does
not have a first payment date on or before the Due Date in the month of the
first Distribution Date, Countrywide shall deposit into the Distribution Account
on or before the Distribution Account Deposit Date relating to the first
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 in this Agreement by such Seller or
to repurchase or substitute for any affected Mortgage Loan in accordance
herewith.
(c) In connection with the transfer and assignment set forth in clause (b)
above, the Depositor has delivered or caused to be delivered to the Trustee (or,
in the case of the Delay Delivery Mortgage Loans, will deliver or cause to be
delivered to the Trustee within thirty (30) days following the Closing 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
45
(B) with respect to any Lost Mortgage Note, a lost note
affidavit from Countrywide stating that the original Mortgage Note
was lost or destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy of such Mortgage, with recording information, (or, in the case
of a Mortgage for which the related Mortgaged Property is located in
the Commonwealth of Puerto Rico, a true copy of the Mortgage
certified as such by the applicable notary) and in the case of each
MERS Mortgage Loan, the original Mortgage or a copy of such
mortgage, with recording information, noting the presence of the MIN
of the Mortgage Loans and either language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if
the Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by
the public recording office in which such Mortgage has been
recorded;
(iii) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage or a copy
of such assignment, with recording information, (which may be
included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of such
mortgage or a copy of such assignment, with recording information,
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the
assignment relates); provided that, if the related Mortgage has not
been returned from the applicable public recording office, such
assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such
assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(v) except as provided below, the original or a copy of
lender's title policy or a printout of the electronic equivalent and
all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) The Coop Shares, together with a stock power in
blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
46
(E) The executed UCC-1 financing statement with evidence
of recording thereon which have been filed in all places
required to perfect the applicable Seller's interest in the
Coop Shares and the Proprietary Lease; and
(F) The executed UCC-3 financing statements or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to
the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
In addition, in connection with the assignment of any MERS Mortgage Loan,
each Seller agrees that it will cause, at the Trustee's expense, the MERS(R)
System to indicate that the Mortgage Loans sold by such Seller to the Depositor
have been assigned by that Seller to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R) System
to identify the series of the Certificates issued in connection with such
Mortgage Loans. Each Seller further agrees that it will not, and will not permit
the Master Servicer to, and the Master Servicer agrees that it will not, alter
the information referenced in this paragraph with respect to any Mortgage Loan
sold by such Seller to the Depositor during the term of this Agreement unless
and until such Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage or
a copy of such mortgage, with recording information, or (b) all interim recorded
assignments or a copy of such assignments, with recording information, or (c)
the lender's title policy or a copy of lender's title policy (together with all
riders thereto) satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above, the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii) or
(iii) above, such original Mortgage or a copy of such mortgage, with recording
information, or such interim assignment or a copy of such assignments, with
recording information, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or, in
the case of clause (v) above, no later than 120 days following the Closing Date;
provided, however, in the event the Depositor is unable to deliver by such date
each Mortgage and each such interim assignment by reason of the fact that any
such documents have 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
47
documents required to be delivered by the Depositor or the Master Servicer to
the Trustee. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan and the public
recording office requires the presentation of a "lost instruments affidavit and
indemnity" or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Master
Servicer shall execute and deliver or cause to be executed and delivered such a
document to the public recording office. In the case where a public recording
office retains the original recorded Mortgage or in the case where a Mortgage is
lost after recordation in a public recording office, Countrywide shall deliver
to the Trustee a copy of such Mortgage certified by such public recording office
to be a true and complete copy of the original recorded Mortgage.
As promptly as practicable subsequent to such transfer and assignment, and
in any event, within one hundred twenty (120) days after such transfer and
assignment, the Trustee shall (A) as the assignee thereof, affix the following
language to each assignment of Mortgage: "CWMBS Series 2007-HYB1, The Bank of
New York as trustee", (B) cause such assignment to be in proper form for
recording in the appropriate public office for real property records and (C)
cause to be delivered for recording in the appropriate public office for real
property records the assignments of the Mortgages to the Trustee, except that
(i) with respect to any assignments of Mortgage as to which the Trustee has not
received the information required to prepare such assignment in recordable form,
the Trustee's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within thirty (30) days after receipt thereof and (ii) the Trustee need
not cause to be recorded any assignment which relates to a Mortgage Loan, the
Mortgaged Property and Mortgage File relating to which are located in any
jurisdiction (including Puerto Rico) under the laws of which the recordation of
such assignment is not necessary to protect the Trustee's and the
Certificateholders' interest in the related Mortgage Loan as evidenced by an
Opinion of Counsel delivered by Countrywide to the Trustee within 90 days of the
Closing Date (which opinion may be in the form of a "survey" opinion and is not
required to be delivered by counsel admitted to practice law in the jurisdiction
as to which such legal opinion applies).
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, will deposit in the Certificate Account the portion of such payment
that is required to be deposited in the Certificate Account pursuant to Section
3.05.
Notwithstanding anything to the contrary in this Agreement, within thirty
(30) days after the Closing Date with respect to the 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
48
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) Neither the Depositor nor the Trust will acquire or hold any Mortgage
Loan that would violate the representations made by Countrywide set forth in
clauses (49) and (50) of Schedule III-A hereto.
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form annexed hereto as Exhibit F (an "Initial
Certification") and declares that it holds and will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that it
holds or will hold such other assets as are included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the Mortgage Notes
in the State of California, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) an Initial Certification in the
form annexed to this Agreement as Exhibit F. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Trustee acknowledges that such documents appear regular on
their face and relate to the Mortgage Loans. The Trustee shall be under no duty
or obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded in the real estate records or that they are other than what they
purport to be on their face.
On or about the thirtieth (30th) day after the Closing Date, the Trustee
shall deliver to the Depositor, the Master Servicer and Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a Delay
Delivery Certification with respect to the Mortgage Loans in the form annexed
hereto as Exhibit G (a "Delay Delivery Certification"), 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 Mortgage Loans in the form annexed hereto as Exhibit H (a "Final
Certification"), with any applicable exceptions noted thereon.
49
If, in the course of such review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification; provided, however that the Trustee shall not make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates. Countrywide (on its
own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall
promptly correct or cure such defect within 90 days from the date it was so
notified of such defect and, if Countrywide does not correct or cure such defect
within such period, Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.03, or (b) purchase such Mortgage Loan from the Trustee within 90 days from
the date Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) was notified of such defect in writing at the Purchase
Price of such Mortgage Loan; provided, however, that in no event shall such
substitution or purchase occur more than 540 days from the Closing Date, except
that if the substitution or purchase of a Mortgage Loan pursuant to this
provision is required by reason of a delay in delivery of any documents by the
appropriate recording office, and there is a dispute between either the Master
Servicer or Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) and the Trustee over the location or status of the
recorded document, then such substitution or purchase shall occur within 720
days from the Closing Date. The Trustee shall deliver written notice to each
Rating Agency within 270 days from the Closing Date indicating each Mortgage
Loan (a) that has not been returned by the appropriate recording office or (b)
as to which there is a dispute as to location or status of such Mortgage Loan.
Such notice shall be delivered every 90 days thereafter until the related
Mortgage Loan is returned to the Trustee. Any such substitution pursuant to (a)
above or purchase pursuant to (b) above shall not be effected prior to the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05, if
any, and any substitution pursuant to (a) above shall not be effected prior to
the additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit N. No substitution is permitted to be made in any calendar
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 a 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
50
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) [Reserved].
(c) [Reserved].
(d) The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth in this
Agreement. The Master Servicer shall promptly deliver to the Trustee, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the possession of the
Master Servicer from time to time.
(e) It is understood and agreed that the respective obligations of each
Seller to substitute for or to purchase any Mortgage Loan sold to the Depositor
by it which does not meet the requirements of Section 2.01 above shall
constitute the sole remedy respecting such defect available to the Trustee, the
Depositor and any Certificateholder against that Seller.
SECTION 2.03. Representations, Warranties and Covenants of the Sellers and
Master Servicer.
(a) Countrywide hereby makes the representations and warranties set forth
in (i) Schedule II-A, Schedule II-B, Schedule II-C and Schedule II-D hereto, and
by this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date, (ii) Schedule III-A hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date with respect to the 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
Cut-off Date with respect to the 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 Cut-off Date with respect to the 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 Cut-off
Date with respect to the 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
51
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date with respect to the 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) that materially and adversely affects the interests of the
Certificateholders in that Mortgage Loan, the party discovering such breach
shall give prompt notice thereof to the other parties. Each Seller hereby
covenants that within 90 days of the earlier of its discovery or its receipt of
written notice from any party of a breach of any representation or warranty with
respect to a Mortgage Loan sold by it pursuant to Section 2.03(a) that
materially and adversely affects the interests of the Certificateholders in that
Mortgage Loan, it shall cure such breach in all material respects, and if such
breach is not so cured, shall, (i) if such 90-day period expires prior to the
second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Substitute
Mortgage Loan, in the manner and subject to the conditions set forth in this
Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from
the Trustee at the Purchase Price in the manner set forth below; provided,
however, that any such substitution pursuant to (i) above shall not be effected
prior to the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05, if any, and any such substitution pursuant to (i) above shall not
be effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit N and the Mortgage File for any
such Substitute Mortgage Loan. The Seller repurchasing a Mortgage Loan pursuant
to this Section 2.03(c) shall promptly reimburse the Master Servicer and the
Trustee for any expenses reasonably incurred by the Master Servicer or the
Trustee in respect of enforcing the remedies for such breach. With respect to
the representations and warranties described in this Section which are made to
the best of a Seller's knowledge, if it is discovered by either the Depositor, a
Seller or the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan or the interests of the Certificateholders therein,
notwithstanding that Seller's lack of knowledge with respect to the substance of
such representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
With respect to any Substitute Mortgage Loan or Loans sold to the
Depositor by a Seller, Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall deliver to the Trustee for the
benefit of the Certificateholders the Mortgage Note, the Mortgage, the related
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution is permitted to be made in
any calendar month after the Determination Date for such month. Scheduled
Payments due with respect to Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter that
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Master Servicer shall amend
52
the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect
the removal of such Deleted Mortgage Loan and the substitution of the Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the amended
Mortgage Loan Schedule to the Trustee. Upon such substitution, the Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the related Seller shall be deemed to have made with respect to
such Substitute Mortgage Loan or Loans, as of the date of substitution, the
representations and warranties made pursuant to Section 2.03(a) with respect to
such Mortgage Loan. Upon any such substitution and the deposit to the
Certificate Account of the amount required to be deposited therein in connection
with such substitution as described in the following paragraph, the Trustee
shall release the Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the related Seller and shall execute
and deliver at such Seller's direction such instruments of transfer or
assignment prepared by Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna), in each case without recourse, as shall
be necessary to vest title in that Seller, or its designee, the Trustee's
interest in any Deleted Mortgage Loan substituted for pursuant to this Section
2.03.
For any month in which a Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
Substitute Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of substitution). The
amount of such shortage (the "Substitution Adjustment Amount") plus an amount
equal to the aggregate of any unreimbursed Advances with respect to such Deleted
Mortgage Loans shall be deposited in the Certificate Account by Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) on or
before the Distribution Account Deposit Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Certificate Account pursuant
to Section 3.05 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a Request for Release in the form of
Exhibit N hereto, the Trustee shall release the related Mortgage File held for
the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against such Persons respecting such breach available
to Certificateholders, the Depositor or the Trustee on their behalf.
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.
53
SECTION 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to each Mortgage Loan as of the date of this Agreement or such other date set
forth in this Agreement that as of the Closing Date, and following the transfer
of the Mortgage Loans to it by each Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses or
counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee all of
its rights with respect to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to Section 2.03(a),
together with all rights of the Depositor to require a Seller to cure any breach
thereof or to repurchase or substitute for any affected Mortgage Loan in
accordance with this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.04
(referred to herein as a "breach"), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating Agency.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than 90
days after the Closing Date unless Countrywide delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause any REMIC created under this Agreement to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
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 to this Section in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
54
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.
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 covenants to the Depositor and the Trustee as follows:
(a) the Master Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any affiliate of the
Depositor or the Trustee and prepared by the Master Servicer pursuant to this
Agreement will contain any untrue statement of a material fact or omit to state
a material fact necessary to make such information, certificate, statement or
report not misleading.
55
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and customary and usual standards of practice of prudent mortgage loan
servicers. In connection with such servicing and administration, the Master
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02, subject to the terms of this Agreement
(i) to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(iii) to collect any Insurance Proceeds and other Liquidation Proceeds (which
for the purpose of this Section 3.01 includes any Subsequent Recoveries) and
(iv) to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan; provided that the Master Servicer
shall not take any action that is inconsistent with or prejudices the interests
of the Trust Fund or the Certificateholders in any Mortgage Loan or the rights
and interests of the Depositor, the Trustee and the Certificateholders under
this Agreement. The Master Servicer shall represent and protect the interests of
the Trust Fund in the same manner as it protects its own interests in mortgage
loans in its own portfolio in any claim, proceeding or litigation regarding a
Mortgage Loan, and shall not make or permit any modification, waiver or
amendment of any Mortgage Loan which would cause any REMIC created under this
Agreement to fail to qualify as a REMIC or result in the imposition of any tax
under section 860F(a) or section 860G(d) of the Code. Without limiting the
generality of the foregoing, the Master Servicer, in its own name or in the name
of the Depositor and the Trustee, is hereby authorized and empowered by the
Depositor and the Trustee, when the Master Servicer believes it appropriate in
its reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Master Servicer shall prepare and deliver to the
Depositor and/or the Trustee such documents requiring execution and delivery by
either or both of them as are necessary or appropriate to enable the Master
Servicer to service and administer the Mortgage Loans to the extent that the
Master Servicer is not permitted to execute and deliver such documents pursuant
to the preceding sentence. Upon receipt of such documents, the Depositor and/or
the Trustee shall execute such documents and deliver them to the Master
Servicer. The Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own name or
in the name of the Subservicer, when the Master Servicer or the Subservicer, as
the case may be, believes it appropriate in its best judgment to register any
Mortgage Loan on the MERS(R) System, or cause the removal from the registration
of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and all instruments
of assignment and other comparable instruments with respect to such assignment
or re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
56
In accordance with the standards of the preceding paragraph, the Master
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Master Servicer may arrange for the subservicing of any Mortgage
Loan by a Subservicer pursuant to a subservicing agreement; provided, however,
that such subservicing arrangement and the terms of the related subservicing
agreement must provide for the servicing of such Mortgage Loans in a manner
consistent with the servicing arrangements contemplated under this Agreement.
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
57
Trustee or the Depositor be obligated to supervise the performance of the Master
Servicer under this Agreement or otherwise.
SECTION 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default or
termination by the Depositor), the Trustee or its successor shall then assume
all of the rights and obligations of the Master Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of the
Master Servicer pursuant to Section 3.09 or any acts or omissions of the
predecessor Master Servicer under this Agreement), (ii) obligated to make
Advances if it is prohibited from doing so by applicable law, (iii) obligated to
effectuate repurchases or substitutions of Mortgage Loans hereunder including,
but not limited to, repurchases or substitutions of Mortgage Loans pursuant to
Section 2.02 or 2.03, (iv) responsible for expenses of the Master Servicer
pursuant to Section 2.03 or (v) deemed to have made any representations and
warranties of the Master Servicer under this Agreement). Any such assumption
shall be subject to Section 7.02. If the Master Servicer shall for any reason no
longer be the Master Servicer (including by reason of any Event of Default or
termination by the Depositor), the Trustee or its successor shall succeed to any
rights and obligations of the Master Servicer under each subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the expense
of the Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement or substitute subservicing agreement and
the Mortgage Loans then being serviced thereunder and an accounting of amounts
collected or held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of the substitute subservicing agreement to the assuming
party.
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account.
(a) The Master Servicer shall make reasonable efforts in accordance with
the customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Mortgage
Loans to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any related Required Insurance Policy. Consistent
with the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the due dates for payments due
on a Mortgage Note for a period not greater than 180 days; provided, however,
that the Master Servicer cannot extend the maturity of any such Mortgage Loan
past the date on which the final payment is due on the latest maturing Mortgage
Loan as of the Cut-off Date. In the event of any such arrangement, the Master
Servicer shall make Advances on the related Mortgage Loan in accordance with the
provisions of Section 4.01 during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such 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
58
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 Home Loans, Inc. is reduced below "A-" by S&P or "A3" by ▇▇▇▇▇'▇,
the Master Servicer shall deposit or cause to be deposited on a daily basis
within one Business Day of receipt), except as otherwise specifically provided
in this Agreement, the following payments and collections remitted by
Subservicers or received by it in respect of Mortgage Loans subsequent to the
Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans on or before the Cut-off Date) and the following amounts required
to be deposited 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, any lender paid mortgage insurance
premiums and any Prepayment Interest Excess;
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or
repair of a Mortgaged Property or released to the Mortgagor in
accordance with the Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer pursuant
to Section 3.05(e) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by the Master Servicer pursuant
to Section 3.09(c) and in respect of net monthly rental income from
REO Property pursuant to Section 3.11;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section 4.01;
and
(viii) any other amounts required to be deposited under this Agreement.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause funds
to be deposited into the Certificate Account in an amount required to cause an
amount of interest to be paid with respect to such Mortgage Loan equal to the
amount of interest that has accrued on such Mortgage Loan from the preceding Due
Date at the Mortgage Rate net of the related Master Servicing Fee.
The foregoing requirements for remittance by the Master Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of prepayment penalties, Prepayment
Interest Excess, late payment charges or assumption fees, if collected, need not
be remitted by the Master Servicer. In the event that the
59
Master Servicer shall remit any amount not required to be remitted, it may at
any time withdraw or direct the institution maintaining the Certificate Account
to withdraw such amount from the Certificate Account, any provision in this
Agreement to the contrary notwithstanding. Such withdrawal or direction may be
accomplished by delivering written notice thereof to the Trustee or such other
institution maintaining the Certificate Account which describes the amounts
deposited in error in the Certificate Account. The Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to this
Section. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section 3.08.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain in the Distribution
Account the following:
(i) the aggregate amount remitted by the Master Servicer to the Trustee
pursuant to Section 3.08(a)(ix);
(ii) any amount deposited by the Master Servicer pursuant to Section
3.05(e) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not required
to be remitted, it may at any time direct the Trustee to withdraw such amount
from the Distribution Account, any provision in this Agreement to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Master Servicer.
(e) Each institution at which the Certificate Account or the Distribution
Account is maintained shall invest the funds in such account 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 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
60
losses realized from any such investment of funds on deposit in the Certificate
Account or the Distribution Account shall be for the benefit of the Master
Servicer as servicing compensation and shall be remitted to it monthly as
provided in this Agreement. The amount of any realized losses in the Certificate
Account or the Distribution Account incurred in any such account in respect of
any such investments shall promptly be deposited by the Master Servicer in the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account, as applicable. The 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 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 prior to any
change thereof.
(g) Reserved.
(h) Reserved.
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 in such accounts all
collections from the Mortgagors (or advances by the Master Servicer) for the
payment of taxes, assessments, hazard insurance premiums or comparable items for
the account of the Mortgagors. Nothing in this Agreement shall require the
Master Servicer to compel a Mortgagor to establish an Escrow Account in
violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to reimburse
the Master Servicer out of related collections for any payments made pursuant to
Sections 3.01 (with respect to taxes and assessments and insurance premiums) and
3.09 (with respect to hazard insurance), to refund to any Mortgagors any sums
determined to be overages, to pay interest, if required by law or the terms of
the related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow
Account or to clear and terminate the Escrow Account at the termination of this
Agreement in accordance with Section 9.01. The Escrow Accounts shall not be a
part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in Section
3.06(a) that are not timely paid by the Mortgagors on the date when the tax,
premium or other cost for which such payment is intended is due, but the Master
Servicer shall be required so to advance only to the extent that such advances,
in the good faith judgment of the Master Servicer will be recoverable by the
Master Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
61
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.
SECTION 3.08. Permitted Withdrawals from the Certificate Account and the
Distribution Account.
(a) The Master Servicer may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not previously retained
by the Master Servicer), the servicing compensation to which it is
entitled pursuant to Section 3.14 and to pay to the Master Servicer,
as additional servicing compensation, earnings on or investment
income with respect to funds in or credited to the Certificate
Account;
(ii) to reimburse each of the Master Servicer and the Trustee for
unreimbursed Advances made by it, such right of reimbursement
pursuant to this subclause (ii) being limited to amounts received on
the Mortgage Loan(s) in respect of which any such Advance was made;
(iii) to reimburse each of the Master Servicer and the Trustee for any
Nonrecoverable Advance previously made by it;
(iv) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master Servicer's right to reimbursement pursuant to
this clause (a) with respect to any Mortgage Loan being limited to
amounts received on such Mortgage Loan(s) that represent late
recoveries of the payments for which such advances were made
pursuant to Section 3.01 or Section 3.06 and (b) for unpaid Master
Servicing Fees as provided in Section 3.11;
62
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased
pursuant to Section 2.02, 2.03 or 3.11, all amounts received on such
Mortgage Loan after the date of such purchase;
(vii) to reimburse the Sellers, the Master Servicer or the Depositor for
expenses incurred by any of them and reimbursable pursuant to
Section 6.03;
(viii) to withdraw any amount deposited in the Certificate Account and not
required to be deposited in the Certificate Account;
(ix) on or prior to the Distribution Account Deposit Date, to withdraw an
amount equal to the related Available Funds and the pro rata portion
of the Trustee Fee for such Distribution Date (based on the
aggregate Stated Principal Balance of the Mortgage Loans in each
Loan Group) and remit such amount to the Trustee for deposit in the
Distribution Account; and
(x) to clear and terminate the Certificate Account upon termination of
this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders, in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of
any taxes that it is authorized to withhold pursuant to the last paragraph
of Section 8.11). In addition, the Trustee may from time to time make
withdrawals from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution Date;
(ii) to pay to the Master Servicer as additional servicing compensation
earnings on or investment income with respect to funds in the
Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount deposited
in the Distribution Account and not required to be deposited
therein;
(iv) to reimburse the Trustee for any unreimbursed Advances made by it
pursuant to Section 4.01(b) hereof, such right of reimbursement
pursuant to this subclause (iv) being limited to (x) amounts
received on the related Mortgage Loan(s) in respect of which any
such Advance was made and (y) amounts not otherwise reimbursed to
the Trustee pursuant to Section 3.08(a)(ii) hereof;
63
(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.
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall cause to be maintained, for each Mortgage Loan,
hazard insurance with extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (y) the outstanding
principal balance of the Mortgage Loan and (z) an amount such that the
proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer. Each such policy of
standard hazard insurance shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. Any amounts
collected by the Master Servicer under any such policies (other than the
amounts to be applied to the restoration or repair of the related
Mortgaged Property or amounts released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures) shall be deposited in
the Certificate Account. Any cost incurred by the Master Servicer in
maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the
Trustee for their benefit, be added to the principal balance of the
Mortgage Loan, notwithstanding that the terms of the Mortgage Loan so
permit. Such costs shall be recoverable by the Master Servicer out of late
payments by the related Mortgagor or out of the proceeds of liquidation of
the Mortgage Loan or Subsequent Recoveries to the extent permitted by
Section 3.08. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such flood
insurance shall be in an amount equal to the least of (i) the outstanding
principal balance of the related Mortgage Loan, (ii) the replacement value
of the improvements which are part of such Mortgaged Property, and (iii)
the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program.
(b) 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
64
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 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
65
to Section 3.10(b), is also authorized with the prior approval of the
insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such Person, pursuant to which
the original Mortgagor is released from liability and such Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to
be in default under this Section by reason of any transfer or assumption
which the Master Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause to
the extent set forth in Section 3.10(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is
to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of
the Trustee, or if an instrument of release signed by the Trustee is
required releasing the Mortgagor from liability on the Mortgage Loan, the
Master Servicer shall prepare and deliver or cause to be prepared and
delivered to the Trustee for signature and shall direct, in writing, the
Trustee to execute the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding
assumptions or the transfer of the Mortgaged Property to such Person. In
connection with any such assumption, no material term of the Mortgage Note
may be changed. In addition, the substitute Mortgagor and the Mortgaged
Property must be acceptable to the Master Servicer in accordance with its
underwriting standards as then in effect. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Trustee for execution by it, the Master Servicer shall deliver an
Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met in connection therewith. The
Master Servicer shall notify the Trustee that any such substitution or
assumption agreement has been completed by forwarding to the Trustee the
original of such substitution or assumption agreement, which in the case
of the original shall be added to the related Mortgage File and shall, for
all purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part thereof.
Any fee collected by the Master Servicer for entering into an assumption
or substitution of liability agreement will be retained by the Master
Servicer as additional servicing compensation.
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with any 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
66
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
one mile radius of any site listed in the Expenditure Plan for the Hazardous
Substance Clean Up Bond Act of 1984 or other site with environmental or
hazardous waste risks known to the Master Servicer, the Master Servicer will,
prior to acquiring the Mortgaged Property, consider such risks and only take
action in accordance with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Trustee's name shall be
placed on the title to such REO Property solely as the Trustee hereunder and not
in its individual capacity. The Master Servicer shall ensure that the title to
such REO Property references the Pooling and Servicing Agreement and the
Trustee's capacity thereunder. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall either itself or through an agent selected
by the Master Servicer protect and conserve such REO Property in the same manner
and to such extent as is customary in the locality where such REO Property is
located and may, incident to its conservation and protection of the interests of
the Certificateholders, rent the same, or any part thereof, as the Master
Servicer deems to be in the best interest of the Certificateholders for the
period prior to the sale of such REO Property. The Master Servicer shall prepare
for and deliver to the Trustee a statement with respect to each REO Property
that has been rented showing the aggregate rental income received and all
expenses incurred in connection with the maintenance of such REO Property at
such times as is necessary to enable the Trustee to comply with the reporting
requirements of the REMIC Provisions. The net monthly rental income, if any,
from such REO Property shall be deposited in the Certificate Account no later
than the close of business on each Determination Date. The Master Servicer shall
perform the tax reporting and withholding required by sections 1445 and 6050J of
the Code with respect to foreclosures and abandonments, the tax reporting
required by section 6050H of the Code with respect to the receipt of mortgage
interest from individuals and any tax reporting required by section 6050P of the
Code with respect to the cancellation of indebtedness by certain financial
entities, by preparing such tax and information returns as may be required, in
the form required, and delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property as
soon as practicable in a manner that maximizes the Liquidation Proceeds thereof,
but in no event later than three years after its acquisition by the Trust Fund.
In that event, the Trustee shall have been supplied with an Opinion of Counsel
to the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to a three-year period, if applicable, will not result in the
imposition of taxes on
67
"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, and that the Trust Fund may continue to
hold such Mortgaged Property (subject to any conditions contained in such
Opinion of Counsel) after the expiration of such three-year period.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income by or on behalf of the Trust Fund
in such a manner or pursuant to any terms that would (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
section 860G(a)(8) of the Code or (ii) subject any REMIC hereunder to the
imposition of any federal, state or local income taxes on the income earned from
such Mortgaged Property under section 860G(c) of the Code or otherwise, unless
the Master Servicer has agreed to indemnify and hold harmless the Trust Fund
with respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose obligor
is not a United States Person, as that term is defined in section 7701(a)(30) of
the Code, in connection with any foreclosure or acquisition of a deed in lieu of
foreclosure (together, "foreclosure") in respect of such Mortgage Loan, the
Master Servicer will cause compliance with the provisions of Treasury Regulation
Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure that no
withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure are
required to be remitted to the obligors on such Mortgage Loan.
The decision of the Master Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Master Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Master Servicer for any related unreimbursed Servicing
Advances and Master Servicing Fees; second, to reimburse the Master Servicer or
the Trustee for any unreimbursed Advances; third, to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer or the Trustee pursuant to Section
3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in
68
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 Master Servicer, in its
sole discretion, shall also have the right to purchase for its own account from
the Trust Fund at a price equal to the Purchase Price any Eligible EPD Protected
Mortgage Loan. The Master Servicer's right to purchase any such Eligible EPD
Protected Mortgage Loan shall expire on the 270th day following the date on
which the related Mortgage Loan became an Eligible EPD Protected Mortgage Loan.
The Purchase Price for any Mortgage Loan purchased under this Section 3.11 shall
be deposited in the Certificate Account and the Trustee, upon receipt of a
certificate from the Master Servicer in the form of Exhibit N to this Agreement,
shall release or cause to be released to the purchaser of such Mortgage Loan the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment prepared by the purchaser of such Mortgage Loan, in each case
without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser of
such Mortgage Loan shall succeed to all the Trustee's right, title and interest
in and to such Mortgage Loan and all security and documents related thereto.
Such assignment shall be an assignment outright and not for security. The
purchaser of such Mortgage Loan shall thereupon own such Mortgage Loan, and all
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
(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,
(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 pay to the Master Servicer, and the Master Servicer
shall deposit the Purchase Price for any Modified Mortgage Loan in the
Certificate Account pursuant to Section 3.05 within one Business Day after the
purchase of the Modified Mortgage Loan. Upon receipt by the Trustee of written
notification of any such deposit signed by a Servicing Officer, the
69
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 to this Agreement. Countrywide
covenants and agrees to indemnify the Trust Fund against any liability for any
"prohibited transaction" taxes and any related interest, additions, and
penalties imposed on the Trust Fund established hereunder as a result of any
modification of a Mortgage Loan effected pursuant to this subsection (b), any
holding of a Modified Mortgage Loan by the Trust Fund or any purchase of a
Modified Mortgage Loan by Countrywide (but such obligation shall not prevent
Countrywide or any other appropriate Person from in good faith contesting any
such tax in appropriate proceedings and shall not prevent Countrywide from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). Countrywide shall have no right of reimbursement for any
amount paid pursuant to the foregoing indemnification, except to the extent that
the amount of any tax, interest, and penalties, together with interest thereon,
is refunded to the Trust Fund or Countrywide.
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by delivering, or causing to be delivered a Request for Release
substantially in the form of Exhibit N. 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
70
for trustee's sale or other documents necessary to effectuate such foreclosure
or any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
SECTION 3.13. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or which otherwise are
collected by the Master Servicer as Liquidation Proceeds, Insurance Proceeds or
Subsequent Recoveries in respect of any Mortgage Loan. All Mortgage Files and
funds collected or held by, or under the control of, the Master Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds and any Subsequent Recoveries,
including but not limited to, any funds on deposit in the Certificate Account,
shall be held by the Master Servicer for and on behalf of the Trustee and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement. The Master Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the Certificate Account, Distribution Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Master Servicer shall be entitled to set off against and
deduct from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
SECTION 3.14. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer shall be
entitled to retain or withdraw from the Certificate Account an amount equal to
the 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, prepayment penalties, assumption fees, late payment
charges and all income and gain net of any losses realized from Permitted
Investments shall be retained by the Master Servicer to the extent not required
to be deposited in the Certificate Account pursuant to Section 3.05. The Master
Servicer shall be required to pay all expenses incurred by it in connection with
its master servicing activities hereunder (including payment of any premiums for
hazard insurance and any Primary Insurance Policy and maintenance of the other
forms of insurance coverage required by
71
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 Certificateholders 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 2008 fiscal year, an
Officer's Certificate stating, as to the signer thereof, that (i) a review of
the activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there has been a
failure to fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status thereof.
(b) The Master Servicer shall cause each Subservicer to deliver to the
Depositor and the Trustee on or before March 15 of each year, commencing with
its 2008 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of such Subservicer during the
preceding calendar year (or applicable portion thereof) and of the performance
of the Subservicer under the applicable Subservicing Agreement or primary
servicing agreement, has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, such Subservicer has
fulfilled all its obligations under the applicable Subservicing Agreement or
primary servicing agreement, in all material respects throughout such year (or
applicable portion thereof), or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status thereof.
(c) The Trustee shall forward a copy of each such statement to each Rating
Agency.
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as master servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
72
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the event
that any such policy or bond ceases to be in effect, the Master Servicer shall
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
SECTION 3.18. Notification of Adjustments.
On each Adjustment Date, the Master Servicer shall make interest rate and
scheduled payment adjustments for each Mortgage Loan in compliance with the
requirements of the related Mortgage and Mortgage Note and applicable
regulations. The Master Servicer shall execute and deliver the notices required
by each Mortgage and Mortgage Note and applicable regulations regarding interest
rate adjustments. The Master Servicer also shall provide timely notification to
the Trustee of all applicable data and information regarding such interest rate
adjustments and the Master Servicer's methods of implementing such interest rate
adjustments. Upon the discovery by the Master Servicer or the Trustee that the
Master Servicer has failed to adjust or has incorrectly adjusted a Mortgage Rate
or a monthly payment pursuant to the terms of the related Mortgage Note and
Mortgage, the Master Servicer shall immediately deposit in the Certificate
Account from its own funds the amount of any interest loss caused thereby
without reimbursement therefor; provided, however, the Master Servicer shall be
held harmless with respect to any interest rate adjustments made by any servicer
prior to the Master Servicer.
73
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.
(a) The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to
make an Advance, it shall, on or before the Master Servicer Advance Date,
either (i) deposit into the Certificate Account an amount equal to the
Advance or (ii) make an appropriate entry in its records relating to the
Certificate Account that any Amount Held for Future Distribution has been
used by the Master Servicer in discharge of its obligation to make any
such Advance. Any funds so applied shall be replaced by the Master
Servicer by deposit in the Certificate Account no later than the close of
business on the next Master Servicer Advance Date. The Master Servicer
shall be entitled to be reimbursed from the Certificate Account for all
Advances of its own funds made pursuant to this Section as provided in
Section 3.08. The obligation to make Advances with respect to any Mortgage
Loan shall continue if such Mortgage Loan has been foreclosed or otherwise
terminated and the related Mortgaged Property has not been liquidated.
(b) If the Master Servicer determines that it will be unable to comply with
its obligation to make the Advances as and when described in the second
sentence of Section 4.01(a), the Master Servicer 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 will not be deposited by the Master Servicer (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
74
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 the related Master
Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the Master
Servicer to be a Nonrecoverable Advance.
SECTION 4.02. Priorities of Distribution.
(a) (1) With respect to the Available Funds for Loan Group 1, on each
Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 1 Senior Certificates in the following order
and priority and, in each case, to the extent of such funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of the Group 1
Senior Certificates, an amount allocable to interest equal to the related
Class Optimal Interest Distribution Amount for such Distribution Date, any
shortfall being allocated among such Classes in proportion to the amount
of the Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(iii) [Reserved];
(iv) to each Class of Group 1 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 1 for such
Distribution Date will be distributed, sequentially, as follows:
(1) to the Class A-R Certificates, until its Class
Certificate Balance is reduced to zero;
(2) concurrently, to the Class 1-A-1 and Class 1-A-2
Certificates, pro rata, until their respective Class
Certificate Balances are reduced to zero;
(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 or Components of Group 2 Senior Certificates in the following order and
priority and, in each case, to the extent of such funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class or Component of
Group 2 Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount for such Distribution
Date, any shortfall being allocated among such Classes or Components in
proportion to the amount of the Class Optimal Interest Distribution Amount
that would have been distributed in the absence of such shortfall;
(iii) [Reserved];
(iv) to each Class or Component of Group 2 Senior Certificates,
concurrently as follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 2 for such
Distribution Date will be distributed, concurrently, to the Class
2-A-1 Certificates and Class ▇-▇-▇ ▇&▇ Component, pro rata, until
the Class Certificate Balance and Component Principal Balance,
respectively, are reduced to zero.
(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 or Components of Group 3 Senior Certificates in the following order and
priority and, in each case, to the extent of such funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class or Component of
Group 3 Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount for such Distribution
Date, any shortfall being allocated among such Classes or Components in
proportion to the amount of the Class Optimal Interest Distribution Amount
that would have been distributed in the absence of such shortfall;
(iii) [Reserved];
(iv) to each Class or Component of Group 3 Senior Certificates,
concurrently as follows:
(x) [Reserved]; and
76
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 3 for such
Distribution Date will be distributed, concurrently, to the Class
3-A-1 Certificates and Class ▇-▇-▇ ▇&▇ Component, pro rata, until
the Class Certificate Balance and Component Principal Balance,
respectively, are reduced to zero.
(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 such 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 for such Distribution Date, any
shortfall being allocated among such Classes in proportion to the amount
of the Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(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
Senior Principal Distribution Amount for Loan Group 4 for such
Distribution Date will be distributed, concurrently, to the Class
4-A-1 and Class 4-A-2 Certificates, pro rata, until their respective
Class Certificate Balances are reduced to zero.
(5) With respect to the Available Funds for Loan Group 5, 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 5 Senior Certificates in the following order and priority and,
in each case, to the extent of such funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 5 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount for such Distribution Date, any
shortfall being allocated among such Classes in proportion to the amount
of the Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(iii) [Reserved];
(iv) to each Class of Group 5 Senior Certificates, concurrently as
follows:
77
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 5 for such
Distribution Date will be distributed, concurrently, to the Class
5-A-1 and Class 5-A-2 Certificates, pro rata, until their respective
Class Certificate Balances are reduced to zero.
(6) On each Distribution Date, Available Funds from all Loan Groups
remaining after making the distributions described in Section 4.02(a)(1) through
Section 4.02(a)(5), shall be distributed to the Senior Certificates to the
extent provided in Section 4.05.
(7) On each Distribution Date, Available Funds from all Loan Groups
remaining after making the distributions described in Section 4.02(a)(1) through
Section 4.02(a)(6) above, shall 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 amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(H) to the Class B-3 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced to
zero;
78
(I) to the Class B-4 Certificates, an amount allocable
to interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(J) to the Class B-4 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced to
zero;
(K) to the Class B-5 Certificates, an amount allocable
to interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date; and
(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;
(M) [Reserved]; and
(N) to the Class A-R Certificates, any remaining funds
in the Trust Fund.
(b) [Reserved]
(c) [Reserved]
(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 or P&I Component for such Distribution Date shall be reduced
for each Class of Senior Certificates or P&I Component of a Senior
Certificate Group and each Class of Subordinated Certificates by the
related Class' Allocable Share of (A) the Net Prepayment Interest
Shortfalls for the related Loan Group, (B) with respect to each Mortgage
Loan in the related Loan Group (or after the Senior Credit Support
Depletion Date, any Mortgage Loan) that became subject to a Debt Service
Reduction during the calendar month preceding the month of such
Distribution Date, the interest portion of the related Debt Service
Reduction and (C) 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)(7), if with respect to any Class of Subordinated Certificates on
any Distribution Date (other than the Class of Subordinated Certificates
then outstanding with the highest priority of distribution) the sum of the
related Class Subordination Percentages of such Class and of all Classes
of Subordinated Certificates which have a higher numerical Class
designation than such Class (the "Applicable Credit Support Percentage")
is less than the Original Applicable Credit Support Percentage for such
Class, no distribution of Principal Prepayments will be made to any such
Classes (the "Restricted Classes") and the amount of such Principal
Prepayments otherwise distributable to the Restricted Classes shall be
distributed to any Classes of Subordinated Certificates having lower
numerical Class
79
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)(7).
(f) If Subsequent Recoveries have been received with respect to a Liquidated
Mortgage Loan in a Loan Group, the amount of such Subsequent Recoveries
will be applied sequentially, in the order of payment priority to increase
the Class Certificate Balance or Component Principal Balance of each Class
of related Certificates or P&I Component 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 and P&I Components will not be
entitled to any payment in respect of the Class Optimal Interest
Distribution Amount on the amount of such increases for any Interest
Accrual Period preceding the Distribution Date on which such increase
occurs. Any such increases shall be applied pro rata to the Certificate
Balance of each Certificate of such Class.
SECTION 4.03. [Reserved].
SECTION 4.04. Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall determine
the total amount of Realized Losses, with respect to the related Distribution
Date. For purposes of allocating losses to the Subordinated Certificates, the
Class M Certificates will be deemed to have a lower numerical Class designation,
and to be of a higher relative payment priority, than each other Class of
Subordinated Certificates.
(b) Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(i) [Reserved].
(ii) Any Realized Loss on the Mortgage Loans in a Loan Group 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 Senior Certificates or
P&I Components of the related Senior Certificate Group (other than any
Notional Amount Certificates, if applicable), in the following order,
until the respective Class Certificate Balance of each such Class or
Component Principal Balance of such P&I Component has been reduced to
zero: (1) in the case of Loan Group 1, sequentially to the Class 1-A-2 and
Class 1-A-1 Certificates, in that order; (2) in the case of Loan Group 2,
sequentially to the Class ▇-▇-▇ ▇&▇ Component and Class 2-A-1
Certificates, in that order; (3) in the case of Loan Group 3, sequentially
to the Class ▇-▇-▇ ▇&▇ Component and Class 3-A-1 Certificates, in that
order; (4) in the case of Loan Group 4, sequentially to the Class 4-A-2
and Class 4-A-1 Certificates, in that order and (5) in the case of Loan
Group 5, sequentially to the Class 5-A-2 and Class 5-A-1 Certificates, in
that order.
80
The Class Certificate Balance of the Class of Subordinated Certificates
then outstanding with the highest numerical Class designation shall be reduced
on each Distribution Date by the 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 on such Distribution Date) exceeds the Pool Stated Principal Balance as
of the Due Date in the month of such Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 4.04(b) 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 P&I
Component or any reduction in the Certificate Balance of a Certificate, pursuant
to Section 4.04(b) above shall be accomplished by reducing the Certificate
Balance, Component Principal Balance or Subordinated Portion thereof, as
applicable, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance,"
"Component Principal Balance" or "Subordinated Portion," as the case may be.
SECTION 4.05. Cross-Collateralization; Adjustments to Available Funds
On each Distribution Date prior to the earlier of the Senior Credit
Support Depletion Date and the fourth Senior Termination Date, but after a
Senior Termination Date, the Trustee shall distribute the principal portion of
Available Funds on the Mortgage Loans relating to the Senior Certificates that
will have been paid in full to the holders of the Senior Certificates of the
other Senior Certificate Groups, pro rata, based on Class Certificate Balances,
provided, however, that the Trustee shall not make such distribution on such
Distribution Date if (a) the Aggregate Subordinated Percentage for such
Distribution Date is greater than or equal to 200% of such Aggregate
Subordinated Percentage as of the Closing Date and (b) the average aggregate
Stated Principal Balance of the Mortgage Loans delinquent 60 days or more over
the last six months, as a percentage of the aggregate Class Certificate Balance
of the Subordinated Certificates, is less than 50%.
If on any Distribution Date the Class Certificate Balance of Senior
Certificates in a Senior Certificate Group immediately prior to each
Distribution Date is greater than the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group as of the Due Date in the month
preceding the month of the related Distribution Date (after giving effect to
Principal Prepayments in the Prepayment Period related to that Due Date) (the
"Undercollateralized Group"), then the Trustee shall apply the Available Funds
of the other Loan Group(s) that are not undercollateralized (each, an
"Overcollateralized Group"), as follows:
(1) to add to the Available Funds of the Undercollateralized Groups an
amount equal to the lesser of (a) one month's interest on the Transfer Payment
Received of the Undercollateralized Group at the Weighted Average Adjusted Net
Mortgage Rate applicable to the Undercollateralized Group and (b) Available
Funds of the Overcollateralized Group(s)
81
remaining after making distributions to the Certificates of the
Overcollateralized Group(s) on such Distribution Date pursuant to Section 4.02;
and
(2) to the Senior Certificates of the Undercollateralized Groups, to the
extent of the principal portion of Available Funds of the Overcollateralized
Groups remaining after making distributions to the Senior Certificates of the
Overcollateralized Groups on such Distribution Date pursuant to Section 4.02,
until the Class Certificate Balance of the Senior Certificates of such
Undercollateralized Groups equals the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group as of the Due Date in the month
preceding the month of that Distribution Date (after giving effect to Principal
Prepayments in the Prepayment Period related to that Due Date).
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 on such Distribution Date shall be made
pro rata, based on the amount of remaining Available Funds for each such
Overcollateralized 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.
The payment received by the Undercollateralized Group (including the
interest thereon as provided in (1) above) is referred to as a "Transfer Payment
Received." The payment made by the Overcollateralized Group (including the
interest thereon as provided in (1) above) is referred to as a "Transfer Payment
Made."
SECTION 4.06. Monthly Statements to Certificateholders.
(a) Concurrently with each distribution on a Distribution Date, the Trustee
will forward by mail to each Rating Agency and make available to
Certificateholders on the Trustee's website
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) a statement generally setting forth
the information contained in Exhibit Q 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 to this Agreement.
(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 aggregate principal distributions, aggregate interest distributions
and aggregate Master Servicing Fees paid to or retained by the Master
Servicer for such calendar year or applicable portion thereof during which
such
82
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.
83
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 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 of the Depositor.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance with
the provisions of Section 5.06, a Certificate Register for the Trust Fund
in which, subject to the provisions of subsections (b) and (c) below and
to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided in this Agreement. Upon surrender
for registration of transfer of any Certificate, the Trustee shall execute
and deliver, in the name of the
84
designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities
Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws.
In the event that a transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with
the Securities Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee in writing the facts surrounding the transfer
in substantially the forms set forth in Exhibit J-2 (the "Transferor
Certificate") and (i) deliver a letter in substantially the form of either
Exhibit K (the "Investment Letter") or Exhibit L (the "Rule 144A Letter")
or (ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferee
designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration
thereof under the Securities Act pursuant to the registration exemption
provided by Rule 144A. The Trustee and the Master Servicer shall cooperate
with the Depositor in providing the Rule 144A information referenced in
the preceding sentence, including providing to the Depositor such
information regarding the Certificates, the Mortgage Loans and other
matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee and the Depositor, the Sellers and
the Master Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
85
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit K or Exhibit L,
or in the event such Certificate is a Residual Certificate, such requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit I), to the effect that (x) such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA or a plan or arrangement subject to Section 4975 of the Code, or a
person acting on behalf of any such plan or arrangement, or using the assets of
any such plan or arrangement to effect such transfer or (y) in the case of a
Certificate that is an ERISA-Restricted Certificate and that has been the
subject of an ERISA-Qualifying Underwriting, a representation that the purchaser
is an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
that the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60 or (ii) in the case of
any ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan or arrangement subject to ERISA, or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee or any other person acting on behalf of any such plan
or arrangement or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be an
expense of the Trustee, the Master Servicer or the Trust Fund, addressed to the
Trustee and the Master Servicer, to the effect that the purchase and holding of
such ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and will not
subject the Trustee or the Master Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability (such Opinion
of Counsel, a "Benefit Plan Opinion"). For purposes of the preceding sentence,
with respect to an ERISA-Restricted Certificate that is not a Residual
Certificate, in the event the representation letter or Benefit Plan Opinion
referred to in the preceding sentence is not so furnished, one of the
representations in clause (i), as appropriate, shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquiror's) acceptance
of the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary in this Agreement, any purported transfer of an ERISA-Restricted
Certificate to or on behalf of an employee benefit plan or arrangement subject
to ERISA or to Section 4975 of the Code without the delivery to the Trustee of a
Benefit Plan Opinion satisfactory to the Trustee as described above shall be
void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact not
permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a Residual
Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring
86
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 Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in connection
with any Transfer of a Residual Certificate and (C) not to Transfer its
Ownership Interest in a Residual Certificate or to cause the Transfer of
an Ownership Interest in a Residual Certificate to any other Person if it
has actual knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in a
Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit and Transferor
Certificate. 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
87
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 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.
88
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the Trustee shall
be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Master Servicer shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references in this Agreement to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer or
the Trustee may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer, the Trustee nor any agent of the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
89
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.
90
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
with this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor will keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. The Master Servicer will keep in effect its
existence, rights and franchises as a limited partnership under the laws of the
United States or under the laws of one of the states thereof and will obtain and
preserve its qualification or registration to do business as a foreign
partnership in each jurisdiction in which such qualification or registration is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any Person into which the Depositor or the Master Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything in this Agreement to the
contrary notwithstanding; provided, however, that the successor or surviving
Person to the Master Servicer shall be qualified to service mortgage loans on
behalf of, FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Master Servicer, the Master Servicer shall provide (x)
written notice to the Depositor of any successor pursuant to this Section and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a replacement Master Servicer.
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers, the
Master Servicer 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 in this Agreement or
91
protect the Depositor, the Master Servicer, any Seller or any such Person from
any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Depositor,
the Master Servicer, each Seller and any director, officer, employee or agent of
the Depositor, the Master Servicer or each Seller may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising under this Agreement. The Depositor, the Master
Servicer, each Seller and any director, officer, employee or agent of the
Depositor, the Master Servicer, or any Seller shall be indemnified by the Trust
Fund and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement or
the Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. None of the Depositor,
the Master Servicer or any Seller shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Master Servicer or
any Seller may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and each Seller shall be
entitled to be reimbursed therefor out of the Certificate Account.
SECTION 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrade or withdrawal of the
rating of any of the Certificates or (b) upon determination that its duties
hereunder are no longer permissible under applicable law. Any such determination
under clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor master
servicer shall have assumed the Master Servicer's responsibilities, duties,
liabilities and obligations under this Agreement and the Depositor shall have
received the information described in the following sentence. As a condition to
the effectiveness of any such resignation, at least 15 calendar days prior to
the effective date of any 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.
92
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used in this Agreement, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the Certificate Account
or remit to the Trustee any payment required to be made under the terms of
this Agreement, which failure shall continue unremedied for five days
after the date upon which written notice of such failure shall have been
given to the Master Servicer by the Trustee 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 or 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.
93
If (a) 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 (b) 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 (i) the Holders of Certificates evidencing
not less than 66 2/3% of the Voting Rights evidenced by the Certificates, the
Trustee shall by notice in writing to the Master Servicer (with a copy to each
Rating Agency and the Depositor), terminate all of the rights and obligations of
the Master Servicer under this Agreement and in and to the Mortgage Loans and
the proceeds thereof, other than its rights as a Certificateholder hereunder.
In addition, if during the period that the Depositor is required to file
Exchange Act Reports with respect to the Trust Fund, the Master Servicer shall
fail to observe or perform any of the obligations that constitute a Limited
Exchange Act Reporting Obligation or the obligations set forth in Section
3.16(a) or Section 11.07(a)(1) and (2), and such failure continues for the
lesser of 10 calendar days or such period in which the applicable Exchange Act
Report can be filed timely (without taking into account any extensions), so long
as such failure shall not have been remedied, the Trustee shall, but only at the
direction of the Depositor, terminate all of the rights and obligations of the
Master Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than its rights as a Certificateholder hereunder. The
Depositor shall not be entitled to terminate the rights and obligations of the
Master Servicer if a failure of the Master Servicer to identify a Subcontractor
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage Loans.
On and after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer hereunder, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee.
The Trustee shall thereupon make any Advance which the Master Servicer failed to
make subject to Section 4.01 whether or not the obligations of the Master
Servicer have been terminated pursuant to this Section. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
Mortgage Loans.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to the
notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.08(a)(i)
through (viii), and any other amounts payable to such Master Servicer hereunder
the entitlement to which arose prior to the termination of its activities under
this Agreement.
94
If the Master Servicer is terminated, the Trustee shall provide the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a successor master servicer in the event the Trustee should succeed to the
duties of the Master Servicer as set forth herein.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.04, be the successor to the Master Servicer in its
capacity as master servicer under this Agreement and the transactions set forth
or provided for in this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions of this Agreement and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Master Servicer would have been entitled to charge
to the Certificate Account or Distribution Account if the Master Servicer had
continued to act hereunder. Notwithstanding the foregoing, if the Trustee has
become the successor to the Master Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 or if it is
otherwise unable to so act, 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 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, 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
95
other successor master servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused by
the failure of the Master Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give notice
to the Mortgagors of such change of servicer and shall, during the term of its
service as master servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 3.09.
In connection with the termination or resignation of the Master Servicer
hereunder, either (i) the successor Master Servicer, including the Trustee if
the Trustee is acting as successor Master Servicer, shall represent and warrant
that it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer
either (x) in causing MERS to execute and deliver an assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Trustee and to execute
and deliver such other notices, documents and other instruments as may be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS(R) System to the successor Master Servicer or
(y) in causing MERS to designate on the MERS(R) System the successor Master
Servicer as the servicer of such Mortgage Loan. The predecessor Master Servicer
shall file or cause to be filed any such assignment in the appropriate recording
office. The successor Master Servicer shall cause such assignment to be
delivered to the Trustee promptly upon receipt 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.
96
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 limiting the provisions of this Section 8.01 or Section 8.02, the
Trustee shall be entitled to rely conclusively on the information
delivered to it by the Master Servicer in
97
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 of a Responsible
Officer of the Trustee that (A) an Advance was not made by the Master
Servicer and (B) such Advance is not a Nonrecoverable Advance.
The Trustee hereby represents, warrants, covenants and agrees that, except
as permitted by Article IX hereof, it shall not cause the Trust Fund to
consolidate or amalgamate with, or merge with or into, or transfer all or
substantially all of the Trust Fund to, another Person.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or accountants of
its selection and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by 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;
98
(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.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained in this Agreement and in the Certificates shall be
taken as the statements of the Depositor or a Seller, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or the Master Servicer of any funds paid
to the Depositor or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Certificate Account by the Depositor or the
Master Servicer.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights as it would have if it were not
the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Distribution Account on each Distribution Date an
amount equal to the Trustee Fee for such Distribution Date. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified by the
Master Servicer and held harmless against any loss, liability or 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
99
Trustee in accordance with any of the provisions of this Agreement with respect
to: (A) the reasonable compensation and the expenses and disbursements of its
counsel not associated with the closing of the issuance of the Certificates, (B)
the reasonable compensation, expenses and disbursements of any accountant,
engineer or appraiser that is not regularly employed by the Trustee, to the
extent that the Trustee must engage such persons to perform acts or services
hereunder and (C) printing and engraving expenses in connection with preparing
any Definitive Certificates. Except as otherwise provided in this Agreement, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce or withdraw their respective
then current ratings of the Certificates (or having provided such security from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07. The entity serving as Trustee may have normal banking and trust
relationships with the Depositor and its affiliates or the Master Servicer and
its affiliates; provided, however, that such entity cannot be an affiliate of
the Master Servicer other than the Trustee in its role as successor to the
Master Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to 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
100
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 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 tax is imposed with
respect to the Trust Fund by any state in which the Trustee or the Trust Fund is
located and the imposition of such tax would be avoided by the appointment of a
different trustee, or (iv) during the period that the Depositor is required to
file Exchange Act Reports with respect to the Trust Fund, the Trustee fails to
comply with its obligations under the last sentence of Section 7.01, 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 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 for such removal. Notice of any removal of the Trustee shall be given to
each Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and the
Master Servicer an instrument accepting such appointment hereunder and thereupon
the resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee in
this Agreement. The Depositor, the Master Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties, and obligations.
101
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 and its appointment shall not
adversely affect the then current rating of the Certificates and has provided to
the Depositor in writing and in form and substance reasonably satisfactory to
the Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.06 without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything in this Agreement
to the contrary notwithstanding.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee under this Section shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no
102
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
shall die, become incapable of acting, resign or be removed, all of its estates,
103
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 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
104
relating to any such REMIC, including but not limited to the income, expenses,
assets and liabilities thereof and the fair market value and adjusted basis of
the assets determined at such intervals as may be required by the Code, as may
be necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent any such
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of any such REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any such REMIC, and otherwise act on
behalf of any such REMIC in relation to any tax matter or controversy involving
it.
In order to enable the Trustee to perform its duties as set forth in this
Agreement, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth in this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims or expenses of the Trustee arising from any errors,
omissions 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 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 pursuant to sections 23153
and 24874 of the California Revenue and Taxation Code, if not paid as otherwise
provided for in this Agreement, 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).
SECTION 8.12. Monitoring of Significance Percentage.
[Reserved].
105
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 a violation of any predatory or
abusive lending law that also constitutes an actual breach of clause (49) on
Schedule III-A, 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the
United States to the Court of St. James's, living on the date of this Agreement
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
106
the office therein designated, (b) the amount of such final distribution, (c)
the location of the office or agency at which such presentation and surrender
must be made, and (d) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein specified.
The Master Servicer will give such notice to each Rating Agency at the time such
notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Certificate Account to be remitted to the Trustee for deposit in
the Distribution Account on or before the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case on
the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class of
Regular Certificates, the Certificate Balance thereof plus accrued interest
thereon (or on their Notional Amount, if applicable) in the case of an
interest-bearing Certificate and (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account (other than
the amounts retained to meet claims) after application pursuant to clause (i)
above. Notwithstanding the reduction of the Class Certificate Balance of any
Class of Certificates to zero, such Class will be outstanding hereunder (solely
for the purpose of receiving distributions and not for any other purpose) until
the termination of the respective obligations and responsibilities of the
Depositor, each Seller, the Master Servicer and the Trustee hereunder in
accordance with Article IX.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Trust Fund which remain subject to this Agreement.
SECTION 9.03. Additional Termination Requirements.
(a) In the event the 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
107
"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 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 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.
108
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, each
Seller, the Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision in this Agreement or to supplement any provision in this
Agreement which may be inconsistent with any other provision in this Agreement,
(iii) to conform this Agreement to the Prospectus and Prospectus Supplement
provided to investors in connection with the initial offering of the
Certificates, (iv) to add to the duties of the Depositor, any Seller or the
Master Servicer, (v) to modify, alter, amend, add to or rescind any of the terms
or provisions contained in this Agreement to comply with any rules or
regulations promulgated by the Securities and Exchange Commission from time to
time, (vi) to add any other provisions with respect to matters or questions
arising hereunder or (vii) to modify, alter, amend, add to or rescind any of the
terms or provisions contained in this Agreement; provided that any action
pursuant to clauses (vi) or (vii) above shall not, as evidenced by an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee or the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall be deemed not to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading or withdrawal of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating.
Notwithstanding the foregoing, no amendment that significantly changes the
permitted activities of the trust created by this Agreement may be made without
the consent of a Majority in Interest of each Class of Certificates affected by
such amendment. Each party to this Agreement hereby agrees that it will
cooperate with each other party in amending this Agreement pursuant to clause
(v) above. The Trustee, each Seller, the Depositor and the Master Servicer also
may at any time and from time to time amend this Agreement without the consent
of the Certificateholders to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or helpful to (i) maintain the
qualification of any REMIC as a REMIC under the Code, (ii) avoid or minimize the
risk of the imposition of any tax on any REMIC pursuant to the Code that would
be a claim at any time prior to the final redemption of the Certificates or
(iii) comply with any other requirements of the Code, provided that the Trustee
has been provided an Opinion of Counsel, which opinion shall be an expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the Depositor,
each Seller, the Master Servicer and the Trustee with the consent of the Holders
of a Majority in Interest of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying
109
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.
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 in
this Agreement provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
110
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
(a) It is the express intent of the parties hereto that the conveyance of the
(i) Mortgage Loans by the Sellers to the Depositor and (ii) Trust Fund by
the Depositor to the Trustee each be, and be construed as, an absolute
sale thereof to the Trustee. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the
event that, notwithstanding the intent of the parties, such assets are
held to be the property of any Seller or the Depositor, as the case may
be, or if for any other reason this Agreement is held or deemed to create
a security interest in either such assets, then (i) this Agreement shall
be deemed to be a security agreement (within the meaning of the Uniform
Commercial Code of the State of New York) with respect to all such assets
and security interests and (ii) the conveyances provided for in this
Agreement shall be deemed to be an assignment and a grant pursuant to the
terms of this Agreement (a) by each Seller to the Depositor or (b) by the
Depositor to the Trustee, for the benefit of the Certificateholders, 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.
111
(iv) The Depositor has received all consents and approvals required by
the terms of the Mortgage Loans to the sale of the Mortgage Loans
hereunder to the Trustee.
(v) All original executed copies of each Mortgage Note that are required
to be delivered to the Trustee pursuant to Section 2.01 have been
delivered to the Trustee.
(vi) Other than the security interest granted to the Trustee pursuant to
this Agreement, the Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Mortgage Loans. The Depositor has not authorized the filing of and
is not aware of any financing statements against the Depositor that
include a description of collateral covering the Mortgage Loans
other than any financing statement relating to the security interest
granted to the Trustee hereunder or that has been terminated. The
Depositor is not aware of any judgment or tax lien filings against
the Depositor.
(c) The Master Servicer shall take such action as is reasonably necessary to
maintain the perfection and priority of the security interest of the
Trustee in the Mortgage Loans; provided, however, that the obligation to
deliver the Mortgage File to the Trustee pursuant to Section 2.01 shall be
solely the Depositor's obligation and the Master Servicer shall not be
responsible for the safekeeping of the Mortgage Files by the Trustee.
(d) It is understood and agreed that the representations and warranties set
forth in subsection (b) above shall survive delivery of the Mortgage Files
to the Trustee. Upon discovery by the Depositor or the Trustee of a breach
of any of the foregoing representations and warranties set forth in
subsection (b) above, which breach materially and adversely affects the
interest of the Certificateholders, the party discovering such breach
shall give prompt written notice to the others and to each Rating Agency.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to each
Rating Agency 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 of such a rating action.
112
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.16;
3. Each annual independent public accountants' servicing report described
in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
(b) All directions, demands and notices under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered by
first class mail, by courier or by facsimile transmission to (a) in the
case of the Depositor, CWMBS, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇,
(b) in the case of Countrywide, Countrywide Home Loans, Inc., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇, or such other address as may be hereafter furnished
to the Depositor and the Trustee by Countrywide in writing, (c) in the
case of Park Granada, Park Granada LLC, c/o Countrywide Financial
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇ or such other address as may
be hereafter furnished to the Depositor and the Trustee by Park Granada in
writing, (d) in the case of Park Monaco Inc., c/o Countrywide Financial
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇ or such other address as may
be hereafter furnished to the Depositor and the Trustee by Park Monaco in
writing, (e) in the case of Park Sienna, Park Sienna LLC, c/o Countrywide
Financial Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇ or such other
address as may be hereafter furnished to the Depositor and the Trustee by
Park Sienna in writing, (f) in the case of the Master Servicer,
Countrywide Home Loans Servicing LP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇,
or such other address as may be hereafter furnished to the Depositor and
the Trustee by the Master Servicer in writing, (g) in the case of the
Trustee, The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Mortgage-Backed
Securities Group, CWMBS, Inc. Series 2007-HYB1, or such other address as
the Trustee may hereafter furnish to the Depositor or Master Servicer and
(h) 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
113
of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or of the Certificates or the rights of
the Holders of the Certificates.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Master Servicer without the prior written consent of the Trustee and Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created by this Agreement, or otherwise affect the
rights, obligations and liabilities of the parties to this Agreement or any of
them.
No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
set forth in this Agreement or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as provided in this Agreement, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner provided in this Agreement and
for the common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 10.08, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
114
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.
115
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 ▇▇▇▇▇-compatible form.
SECTION 11.02. Form 10-D Filings.
(a) In accordance with the Exchange Act, the Trustee shall prepare
for filing and file within 15 days after each Distribution Date (subject
to permitted extensions under the Exchange Act) with the Commission with
respect to the Trust Fund, a Form 10-D with copies of the Monthly
Statement and, to the extent delivered to the Trustee, no later than 10
days following the Distribution Date, such other information identified by
the Depositor or the Master Servicer, in writing, to be filed with the
Commission (such other information, the "Additional Designated
Information"). If the Depositor or Master Servicer directs that any
Additional Designated Information is to be filed with any Form 10-D, the
Depositor or Master Servicer, as the case may be, shall specify the Item
on Form 10-D to which such information is responsive and, with respect to
any Exhibit to be filed on Form 10-D, the Exhibit number. Any information
to be filed on Form 10-D shall be delivered to the Trustee in
▇▇▇▇▇-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 ▇▇▇▇▇-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
116
unreasonable effort or expense regarding the performance or servicing of
the Mortgage Loans (in the case of the Trustee, based on the information
provided by the Master Servicer) as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of
Regulation AB. Such information shall be provided concurrently with the
delivery of the reports specified in Section 4.06(c) in the case of the
Master Servicer and the Monthly Statement in the case of the Trustee,
commencing with the first such report due not less than five Business Days
following such request.
(c) The Trustee shall not have any responsibility to file any items
(other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic
filing via the ▇▇▇▇▇ system and shall not have any responsibility to
convert any such items to such format (other than those items generated by
it or that are readily convertible to such format). The Trustee shall have
no liability to the Certificateholders, the Trust Fund, the Master
Servicer 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
any 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 2008 (or such earlier date
as may be required by the Exchange Act), the Depositor shall prepare and file on
behalf of the Trust Fund a Form 10-K, in form and substance as required by the
Exchange Act. A senior officer in charge of the servicing function of the Master
Servicer shall sign each Form 10-K filed on behalf of the Trust Fund. Such Form
10-K shall include as exhibits each (i) annual compliance statement described
under Section 3.16, (ii) annual report on assessments of compliance with
servicing criteria described under Section 11.07 and (iii) accountant's report
described under Section 11.07. Each Form 10-K shall also include any
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification required to be included therewith, as described in
Section 11.05.
If the Item 1119 Parties listed on Exhibit T 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
117
T setting forth the Item 1119 Parties. No later than March 15 of each year,
commencing in 2008, the Master Servicer and the Trustee shall notify (and the
Master Servicer shall cause any Subservicer to notify) the Depositor and the
Master Servicer of any Form 10-K Disclosure Item, together with a description of
any such Form 10-K Disclosure Item in form and substance reasonably acceptable
to the Depositor. Additionally, each of the Master Servicer and the Trustee
shall provide, and shall cause each Reporting Subcontractor retained by the
Master Servicer or the Trustee, as applicable, and in the case of the Master
Servicer shall cause each Subservicer, to provide, the following information no
later than March 15 of each year in which a Form 10-K is required to be filed on
behalf of the Trust Fund: (i) if such Person's report on assessment of
compliance with servicing criteria described under Section 11.07 or related
registered public accounting firm attestation report described under Section
11.07 identifies any material instance of noncompliance, notification of such
instance of noncompliance and (ii) if any such Person's report on assessment of
compliance with servicing criteria or related registered public accounting firm
attestation report is not provided to be filed as an exhibit to such Form 10-K,
information detailing the explanation why such report is not included.
SECTION 11.05. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
Each Form 10-K shall include a certification (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2008, the Master Servicer and the Trustee shall (unless
such person is the Certifying Person), and the Master Servicer shall cause each
Subservicer and each Reporting Subcontractor and the Trustee shall cause each
Reporting Subcontractor to, provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification (the "Certifying Person") a certification (each, a "Performance
Certification"), in the form attached hereto as Exhibit R-1 (in the case of a
Subservicer or any Reporting Subcontractor of the Master Servicer or a
Subservicer) and Exhibit R-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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification or portion thereof with respect to the
Trust Fund.
118
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 2008:
(i) 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 S 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.
(ii) Each of the Master Servicer and the Trustee shall deliver to the
Depositor and the Master Servicer a report of a registered public
accounting firm reasonably acceptable to the Depositor that attests
to, and reports on, the assessment of compliance made by Master
Servicer or the Trustee, as applicable, and delivered pursuant to
the preceding paragraphs. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation
that in the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it
was unable to express such an opinion. Such report must be available
for general use and not contain restricted use language. To the
extent any of the Servicing Criteria are not applicable to such
Person, with respect to asset-backed securities transactions taken
as a whole involving such Person and that are backed by the same
asset type backing the Certificates, such report shall include such
a statement to that effect.
(iii) 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.
(iv) 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.
119
(v) 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 S hereto delivered
to the Depositor concurrently with the execution of this Agreement or, in
the case of a Subservicer subsequently appointed as such, on or prior to
the date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 11.07(a)(3) or (4) need not address any
elements of the Servicing Criteria other than those specified by the
Master Servicer or the Trustee, as applicable, pursuant to Section
11.07(a)(1).
SECTION 11.08. Use of Subservicers and Subcontractors.
(a) The Master Servicer shall cause any Subservicer used by the Master
Servicer (or by any Subservicer) for the benefit of the Depositor to
comply with the provisions of Section 3.16 and this Article XI to the same
extent as if such Subservicer were the Master Servicer (except with
respect to the Master Servicer's duties with respect to preparing and
filing any Exchange Act Reports or as the Certifying Person). The Master
Servicer shall be responsible for obtaining from each Subservicer and
delivering to the Depositor any servicer compliance statement required to
be delivered by such Subservicer under Section 3.16, any assessment of
compliance and attestation required to be delivered by such Subservicer
under Section 11.07 and any certification required to be delivered to the
Certifying Person under Section 11.05 as and when required to be
delivered. As a condition to the succession to any Subservicer as
subservicer under this Agreement by any Person (i) into which such
Subservicer may be merged or consolidated, or (ii) which may be appointed
as a successor to any Subservicer, the Master Servicer shall provide to
the Depositor, at least 15 calendar days prior to the effective date of
such succession or appointment, (x) written notice to the Depositor of
such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K.
120
(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, any Subservicer),
specifying (i) the identity of each such Subcontractor, (ii) which (if
any) of such Subcontractors are "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, and (iii) which elements
of the Servicing Criteria will be addressed in assessments of compliance
provided by each Subcontractor identified pursuant to clause (ii) of this
paragraph.
As a condition to the utilization of any Subcontractor determined to be a
Reporting Subcontractor, the Master Servicer or the Trustee, as applicable,
shall cause any such Subcontractor used by such Person (or in the case of the
Master Servicer, any Subservicer) for the benefit of the Depositor to comply
with the provisions of Sections 11.07 and 11.09 of this Agreement to the same
extent as if such Subcontractor were the Master Servicer (except with respect to
the Master Servicer's duties with respect to preparing and filing any Exchange
Act Reports or as the Certifying Person) or the Trustee. 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification to the Depositor substantially
in the form of Exhibit U, and the certifications referred to in Section 11.07.
SECTION 11.10. Reconciliation of Accounts.
Any reconciliation of Accounts performed by any party hereto, or any
Subservicer or Subcontractor shall be prepared no later than 45 calendar days
after the bank statement cutoff date.
* * * * * *
121
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.
CWMBS, INC.,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
PARK GRANADA LLC,
as a Seller
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
122
PARK SIENNA LLC,
as a Seller
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
PARK MONACO INC.,
as a Seller
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
123
Acknowledged solely with respect to its
obligations under Section 4.01(b)
THE BANK OF NEW YORK, in its individual capacity
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
124
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II-A
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
Representations and Warranties of Countrywide
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II-A to the Depositor,
the Master Servicer and the Trustee, as of the Closing Date. Capitalized terms
used but not otherwise defined in this Schedule II-A shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") relating to the above-referenced Series, among
Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco Inc., as a
seller, Park Sienna LLC, as a seller, CWMBS, Inc., as depositor, Countrywide
Home Loans Servicing LP, as master servicer and The Bank of New York, as
trustee.
(1) Countrywide is duly organized as a New York corporation and is
validly existing and in good standing under the laws of the State of New
York and is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
Countrywide in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to perform any of its obligations
under the Pooling and Servicing Agreement 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 has duly authorized by all necessary corporate
action on the part of Countrywide the execution, delivery and performance
of the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of Countrywide, enforceable against Countrywide in accordance
with its terms, except that (a) the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by Countrywide , the sale of the Countrywide Mortgage Loans by
Countrywide under the Pooling and Servicing Agreement, the consummation of
any other of the transactions contemplated by the Pooling and Servicing
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of Countrywide
S-II-A-1
and will not (A) result in a material breach of any term or provision of
the charter or by-laws of Countrywide or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or
instrument to which Countrywide is a party or by which it may be bound, or
(C) constitute a material violation of any statute, order or regulation
applicable to Countrywide of any court, regulatory body, administrative
agency or governmental body having jurisdiction over Countrywide; and
Countrywide is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency
or governmental body having jurisdiction over it which breach or violation
may materially impair Countrywide's ability to perform or meet any of its
obligations under the Pooling and Servicing Agreement.
(4) Countrywide is an approved servicer of conventional mortgage
loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act.
(5) No litigation is pending or, to the best of Countrywide's
knowledge, threatened, against Countrywide that would materially and
adversely affect the execution, delivery or enforceability of the Pooling
and Servicing Agreement or the ability of Countrywide to sell the
Countrywide Mortgage Loans or to perform any of its other obligations
under the Pooling and Servicing Agreement in accordance with the terms
thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide of, or compliance by Countrywide with, the
Pooling and Servicing Agreement or the consummation of the transactions
contemplated thereby, or if any such consent, approval, authorization or
order is required, Countrywide has obtained the same.
(7) Countrywide intends to treat the transfer of the Countrywide
Mortgage Loans to the Depositor as a sale of the Countrywide Mortgage
Loans for all tax, accounting and regulatory purposes.
(8) Countrywide is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans in the Trust Fund
for as long as such Mortgage Loans are registered with MERS.
S-II-A-2
SCHEDULE II-B
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
Representations and Warranties of Park Granada
Park Granada LLC ("Park Granada") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-B to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule II-B shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Park Granada, as a seller, Park Monaco Inc., as a
seller, Park Sienna LLC, as a seller, Countrywide, as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWMBS, Inc., as depositor, and The Bank
of New York, as trustee.
(1) Park Granada is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
(2) Park Granada has the full corporate power and authority to sell each
Park Granada Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and has duly authorized by all necessary corporate action on the part
of Park Granada the execution, delivery and performance of the Pooling and
Servicing Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Granada, enforceable
against Park Granada in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Granada, the sale of the Park Granada Mortgage Loans by Park Granada under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Granada and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Granada or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Granada is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Granada of any
court,
S-II-B-1
regulatory body, administrative agency or governmental body having jurisdiction
over Park Granada; and Park Granada is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada's ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
(4) No litigation is pending or, to the best of Park Granada's knowledge,
threatened, against Park Granada that would materially and adversely affect the
execution, delivery or enforceability of the Pooling and Servicing Agreement or
the ability of Park Granada to sell the Park Granada Mortgage Loans or to
perform any of its other obligations under the Pooling and Servicing Agreement
in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Granada of, or compliance by Park Granada with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Granada has obtained the same.
(6) Park Granada intends to treat the transfer of the Park Granada
Mortgage Loans to the Depositor as a sale of the Park Granada Mortgage Loans for
all tax, accounting and regulatory purposes.
S-II-B-2
SCHEDULE II-C
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
Representations and Warranties of Park Monaco
Park Monaco Inc. ("Park Monaco") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-C to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule II-C shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Park Monaco, as a seller, Countrywide, as a
seller, Park Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWMBS, 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 has duly authorized by all necessary corporate action on the part
of Park Monaco the execution, delivery and performance of the Pooling and
Servicing Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Monaco, enforceable
against Park Monaco in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Monaco, the sale of the Park Monaco Mortgage Loans by Park Monaco under the
Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Monaco and will not (A) result in a material breach of any
term or provision of the certificate of incorporation or bylaws 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
S-II-C-1
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Park Monaco's ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
(4) No litigation is pending or, to the best of Park Monaco's knowledge,
threatened, against Park Monaco that would materially and adversely affect the
execution, delivery or enforceability of the Pooling and Servicing Agreement or
the ability of Park Monaco to sell the Park Monaco Mortgage Loans or to perform
any of its other obligations under the Pooling and Servicing Agreement in
accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Monaco of, or compliance by Park Monaco with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Monaco has obtained the same.
(6) Park Monaco intends to treat the transfer of the Park Monaco Mortgage
Loans to the Depositor as a sale of the Park Monaco Mortgage Loans for all tax,
accounting and regulatory purposes.
S-II-C-2
SCHEDULE II-D
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
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-C to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule II-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, Park Monaco Inc, as a
seller, Park Granada LLC, as a seller, Countrywide, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWMBS, Inc., as depositor, and The
Bank of New York, as trustee.
(1) Park Sienna is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
(2) Park Sienna has the full corporate power and authority to sell each
Park Sienna Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and has duly authorized by all necessary corporate action on the part
of Park Sienna the execution, delivery and performance of the Pooling and
Servicing Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Sienna, enforceable
against Park Sienna in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Sienna, the sale of the Park Sienna Mortgage Loans by Park Sienna under the
Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Sienna and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Sienna or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Sienna is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Sienna of any
court, regulatory body,
S-II-D-1
administrative agency or governmental body having jurisdiction over Park Sienna;
and Park Sienna is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
Park Sienna's ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
(4) No litigation is pending or, to the best of Park Sienna's knowledge,
threatened, against Park Sienna that would materially and adversely affect the
execution, delivery or enforceability of the Pooling and Servicing Agreement or
the ability of Park Sienna to sell the Park Sienna Mortgage Loans or to perform
any of its other obligations under the Pooling and Servicing Agreement in
accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Sienna of, or compliance by Park Sienna with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Sienna has obtained the same.
(6) Park Sienna intends to treat the transfer of the Park Sienna Mortgage
Loans to the Depositor as a sale of the Park Sienna Mortgage Loans for all tax,
accounting and regulatory purposes.
S-II-D-2
SCHEDULE III-A
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
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
Mortgage Loans as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
III-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, CWMBS, 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 Mortgage Loan is true and correct in all material
respects as of the Closing Date.
(2) As of the Cut-off Date, none of the Mortgage Loans are 30 days or more
delinquent.
(3) No Mortgage Loan had a Loan-to-Value Ratio at origination in excess of
100.00%.
(4) Each Mortgage is a valid and enforceable first lien on the Mortgaged
Property subject only to (a) the lien of non delinquent current real property
taxes and assessments, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of recording of
such Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal made
in connection with the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
(5) [Reserved].
(6) There is no delinquent tax or assessment lien against any Mortgaged
Property.
(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.
S-III-A-1
(9) As of the Closing Date, 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, neither Countrywide nor any prior holder of
any Mortgage has modified the Mortgage in any material respect (except that a
Mortgage Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the interests of
the Certificateholders and the original or a copy of which has been delivered to
the Trustee); satisfied, cancelled or subordinated such Mortgage in whole or in
part; released the related Mortgaged Property in whole or in part from the lien
of such Mortgage; or executed any instrument of release, cancellation,
modification or satisfaction with respect thereto.
(12) A lender's policy of title insurance together with an adjustable rate
rider, condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Stated Principal Balance of each
such Mortgage Loan or a commitment (binder) to issue the same was effective on
the date of the origination of each Mortgage Loan, each such policy is valid and
remains in full force and effect, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the Mortgaged
Property is located and acceptable to FNMA or FHLMC and is in a form acceptable
to FNMA or FHLMC, which policy insures Countrywide and successor owners of
indebtedness secured by the insured Mortgage, as to the first priority lien of
the Mortgage subject to the exceptions set forth in paragraph (4) above and
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment in the
mortgage interest rate and/or monthly payment; to the best of Countrywide's
knowledge, no claims have been made under such mortgage title insurance policy
and no prior holder of the related Mortgage, including Countrywide, has done, by
act or omission, anything which would impair the coverage of such mortgage title
insurance policy.
(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.
(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
S-III-A-2
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) As of the Closing Date, approximately 44.74%, 31.25%, 29.52%, 34.50%
and 35.74%, of the Mortgage Loans in Loan Groups 1, 2, 3, 4 and 5, respectively,
by aggregate Stated Principal Balance of the respective Loan Group as of the
Cut-off Date, provide for a prepayment charge.
(27) Each Mortgage Loan that had a Loan-to-Value Ratio at origination in
excess of 80% is the subject of a Primary Insurance Policy that insures that
portion of the principal balance equal to a specified percentage times the sum
of the remaining principal balance of the related Mortgage Loan, the accrued
interest thereon and the related foreclosure expenses. The specified coverage
percentage for mortgage loans with terms to maturity between 25 and 30 years is
12% for Loan-to-Value Ratios between 80.01% and 85.00%, 25% for Loan-to-Value
Ratios between 85.01% and 90.00%, 30% for Loan-to-Value Ratios between 90.01%
and 95.00% and 35% for Loan-to-Value Ratios between 95.01% and 100%. The
specified coverage percentage for mortgage loans with terms to maturity of up to
20 years ranges from 6% to 12% for Loan-to-Value Ratios between 80.01% and
85.00%, from 12% to 20% for Loan-to-Value Ratios between 85.01% and 90.00% and
20% to 25% for Loan-to-Value Ratios between 90.01% and 95.00%. Each such Primary
Insurance Policy is issued by a Qualified Insurer. All provisions of any such
Primary Insurance Policy have been and are being complied with, any such policy
is in full force and effect, and all premiums due thereunder have been paid. Any
Mortgage subject to any such Primary Insurance Policy obligates either the
Mortgagor or the mortgagee thereunder to maintain such insurance and to pay all
premiums and charges in connection therewith, subject, in each case, to the
provisions of Section 3.09(b) of the Pooling and Servicing Agreement. The
Mortgage Rate for each Mortgage Loan is net of any such insurance premium.
(28) As of the Closing Date, the improvements upon each Mortgaged Property
are covered by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire and extended coverage and coverage for
such other hazards as are customary in the area where the Mortgaged Property is
located in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage Loan or (ii) the
greater of (a) the outstanding principal balance of the Mortgage Loan and (b) an
amount such that the proceeds of such policy shall be sufficient to prevent the
Mortgagor and/or the mortgagee from becoming a co-insurer. If the Mortgaged
Property is a condominium unit, it is included under the coverage afforded by a
blanket policy for the condominium unit. All such individual insurance policies
and all flood policies referred to in item (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
S-III-A-4
Administration is in effect with respect to such Mortgaged Property with a
generally acceptable carrier in an amount representing coverage not less than
the least of (A) the original outstanding principal balance of the Mortgage
Loan, (B) the minimum amount required to compensate for damage or loss on a
replacement cost basis, or (C) the maximum amount of insurance that is available
under the Flood Disaster Protection Act of 1973, as amended.
(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) Each Mortgage Loan was underwritten in all material respects in
accordance with the underwriting guidelines described in the Prospectus
Supplement.
(37) 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
S-III-A-5
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.
(38) None of the Mortgage Loans are graduated payment mortgage loans or
growing equity mortgage loans, and none of the Mortgage Loans are subject to a
buydown or similar arrangement.
(39) 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.
(40) The Mortgage Loans were selected from among the outstanding
adjustable-rate one- to four-family mortgage loans in the portfolios of the
Sellers at the Closing Date as to which the representations and warranties made
as to the Mortgage Loans set forth in this Schedule III can be made. Such
selection was not made in a manner intended to adversely affect the interests of
Certificateholders.
(41) Except for approximately 3.23% and 6.00% of the Mortgage Loans in
Loan Groups 3 and 4, respectively, by aggregate Stated Principal Balance of the
respective Loan Group as of the Cut-off Date, each Mortgage Loan transferred and
assigned to the Trustee on the Closing Date has a payment date on or before
February 1, 2007.
(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) No Mortgage Loan originated on or after October 1, 2002 through March
6, 2003 is governed by the Georgia Fair Lending Act.
(45) None of the Mortgage Loans are "high cost" loans as defined by
applicable predatory and abusive lending laws.
(46) None of the Mortgage Loans are covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA").
(47) 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.).
(48) 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. ▇▇▇.
▇▇.▇▇. 58-21a-1 et seq.).
S-III-A-6
(49) 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.
(50) 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 O (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
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
Representations and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III-B to the
Depositor, the Master Servicer and the Trustee, with respect to the Countrywide
Mortgage Loans that are Mortgage Loans as of the Closing Date, or if so
specified herein, as of the Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III-B shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWMBS, 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
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
Representations and Warranties of Park Granada as to the Park Granada
Mortgage Loans
Park Granada LLC ("Park Granada") hereby makes the representations and
warranties set forth in this Schedule III-C to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Granada Mortgage Loans that
are Mortgage Loans as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
III-C shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Granada, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWMBS, 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
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
Representations and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
Park Monaco Inc. ("Park Monaco") hereby makes the representations and
warranties set forth in this Schedule III-D to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Monaco Mortgage Loans as of
the Closing Date, or if so specified herein, as of the Cut-off Date. Capitalized
terms used but not otherwise defined in this Schedule III-D shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") relating to the above-referenced Series, among
Countrywide Home Loans, Inc., as a seller, Park Monaco, as a seller, Park
Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWMBS, 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
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
Representations and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
Park Sienna LLC ("Park Sienna") hereby makes the representations and
warranties set forth in this Schedule III-E to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Sienna Mortgage Loans that
are Mortgage Loans as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
III-E shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Sienna, as a seller, Park Monaco Inc., as a seller, Park Granada LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWMBS, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park Sienna Mortgage Loan
to the Depositor, Park Sienna had good title to, and was the sole owner of, such
Park Sienna Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE IV
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2007-HYB1
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 Sienna LLC,
as a seller, Park Monaco Inc., as a seller, Countrywide Home Loans Servicing LP,
as master servicer, CWMBS, 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
S-IV-1
with, result in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or instrument
to which Countrywide Servicing is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation applicable
to Countrywide Servicing of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Countrywide Servicing; and
Countrywide Servicing is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
the ability of Countrywide Servicing to perform or meet any of its obligations
under the Pooling and Servicing Agreement.
(4) Countrywide Servicing is an approved servicer of conventional mortgage
loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No litigation is pending or, to the best of Countrywide Servicing's
knowledge, threatened, against Countrywide Servicing that would materially and
adversely affect the execution, delivery or enforceability of the Pooling and
Servicing Agreement or the ability of Countrywide Servicing to service the
Mortgage Loans or to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide Servicing of, or compliance by Countrywide Servicing
with, the Pooling and Servicing Agreement or the consummation of the
transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, Countrywide Servicing has obtained the same.
(7) Countrywide Servicing is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are registered with MERS.
S-IV-2
SCHEDULE V
Principal Balance Schedules
*[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
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR 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 ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR TO 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 :
CWMBS, 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
CWMBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
A-2
Loans deposited by CWMBS, 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"), Park Sienna LLC, as a seller ("Park
Sienna"), 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 subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense of
the Trustee or the Master Servicer, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee and the
Master Servicer to the effect that the purchase or 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 or
the Master Servicer. 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 on behalf of an employee benefit plan subject
to ERISA or to 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 REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR IF SUCH CERTIFICATE HAS
BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A PLAN SUBJECT TO SECTION
4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH
A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY WHICH IS PURCHASING
CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNTS" 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 ARE
COVERED UNDER SECTION I AND III OF PTCE 95-60 OR AN OPINION OF COUNSEL IN
B-1
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
TO 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 :
CWMBS, 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
CWMBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate
B-3
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by CWMBS, 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"), Park Sienna LLC, as a seller ("Park Sienna"), 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 subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense of
the Trustee or the Master Servicer, (ii) if such certificate has been the
subject of an ERISA Qualifying Underwriting and the purchaser is an insurance
company, a representation that the purchaser is an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered 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 Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the
B-4
Trustee and the Master Servicer to the effect that the purchase or holding of
such Certificate will not result in a prohibited transaction under Section 406
of ERISA or Section 4975 of the Code, will not result in the assets of the Trust
Fund being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee or the Master Servicer.
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 to 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
EXHIBIT C
[FORM OF CLASS A-R 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 REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH
A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY WHICH IS PURCHASING
CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNTS" 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 ARE
COVERED UNDER SECTION I AND III OF PTCE 95-60 OR 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
TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWMBS, 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
CWMBS, 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 CWMBS, Inc. (the
C-2
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), Park Monaco Inc., as a seller ("Park
Monaco"), Park Sienna LLC, as a seller ("Park Sienna"), 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 subject to Section 4975 of the Code,
nor a person acting on behalf of or investing plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the Master
Servicer, (ii) or that such Transferee is an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) an Opinion of Counsel satisfactory to the Trustee and the Master
Servicer to the effect that the purchase or holding of such Class A-R
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 this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee or
the Master Servicer. 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 to 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
C-3
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge that
the proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class A-R Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
C-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-5
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTION IN RESPECT OF PRINCIPAL.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR 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 ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR TO 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 :
CWMBS, 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
CWMBS, 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 CWMBS, Inc. (the "Depositor"). The Trust Fund was created
D-2
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"), Park
Monaco Inc., as a seller ("Park Monaco"), Park Sienna LLC, as a seller ("Park
Sienna"), 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 subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense of
the Trustee or the Master Servicer, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trustee and the
Master Servicer to the effect that the purchase or 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 or
the Master Servicer. 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 on behalf of an employee benefit plan subject
to ERISA or to 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]
CWMBS, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, 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
Business Day immediately following the Master Servicer Remittance Date (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.
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
E-1
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Sellers and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the Pool Stated Principal Balance is
less than or equal to 10% of the Cut-off Date Pool Principal Balance, the Master
Servicer will have the option 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.
E-2
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. To the extent that any term or provision of this
Certificate conflicts with or is in any way inconsistent with any term or
provision of the Agreement, the Agreement shall govern.
E-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_______________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, ______________________________________________
______________________________________________________________________________
_____________________________________________________________________________,
for the account of ___________________________________________________________
account number ________________________, or, if mailed by check, to _________.
Applicable statements should be mailed to __________________________________,
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by _______________________________________,
the assignee named above, or ________________________________________________,
as its agent.
E-4
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary public in
and for said State, personally appeared _____________________________________,
known to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
_____________________________
Notary Public
[Notarial Seal]
E-5
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Countrywide]
_____________________
_____________________
Re: Pooling and Servicing Agreement among
CWMBS, 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 Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Delay Delivery Mortgage Loan paid in full or any
Mortgage Loan listed on the attached schedule) it has received:
(i) (a) the original Mortgage Note endorsed as provided 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.; provided, however,
F-1
that it has received no assignment with respect to any Mortgage for which the
related Mortgaged Property is located in the Commonwealth of Puerto Rico.
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 Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
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
EXHIBIT G
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Countrywide]
_____________________
_____________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as a Seller
("Countrywide"), 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 Mortgage Loan listed on Schedule A
attached hereto (other than any 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 Mortgage Loan that is not a MERS Mortgage Loan,
the original recorded Mortgage, [and in the case of each 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
G-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 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, 200[__], without recourse", or, in the case of each
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
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
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v), (vi),
(viii), (xi) and (xiv) of the definition of the "Mortgage Loan Schedule" in
Article I of the Pooling and Servicing Agreement accurately reflects information
set forth in the Mortgage File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage
G-2
File of any of the 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.
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-3
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Countrywide]
_____________________
_____________________
Re: Pooling and Servicing Agreement among CWMBS,
Inc., as Depositor, Countrywide Home Loans,
Inc., as Seller ("Countrywide"), 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 Mortgage Loan listed in the Mortgage
Loan Schedule (other than any 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 Mortgage Loan that is not a MERS Mortgage Loan,
the original recorded Mortgage, [and in the case of each 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
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 to "The Bank of New York,
as trustee under the Pooling and Servicing Agreement dated as of
[month] 1, 200[__], without recourse", or, in the case of each
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 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 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
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
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
H-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 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.
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-3
EXHIBIT I
TRANSFER AFFIDAVIT
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of _______________________, the
proposed Transferee of an Ownership Interest in a Class A-R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement (the
"Agreement"), relating to the above-referenced Series, by and among CWMBS, Inc.,
as depositor (the "Depositor"), Countrywide Home Loans, Inc. (the "Company"), as
a seller, one or more special purpose entities established by Countrywide
Financial Corporation or one of its subsidiaries, as a seller (and together with
the Company, 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 proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax. 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
_______________, 20__.
PRINT NAME OF TRANSFEREE
By:___________________________________
Name:
Title:
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).
PRINT NAME OF TRANSFEREE
By:______________________________
Name:
Title:
I-5
EXHIBIT 1
Certain Definitions
"Asset Test": A transfer satisfies the Asset Test if: (i) At the
time of the transfer, and at the close of each of the transferee's two fiscal
years preceding the transferee's fiscal year of transfer, the transferee's gross
assets for financial reporting purposes exceed $100 million and its net assets
for financial reporting purposes exceed $10 million. The gross assets and net
assets of a transferee do not include any obligation of any "related person" or
any other asset if a principal purpose for holding or acquiring the other asset
is to permit the transferee to satisfy such monetary conditions; (ii) The
transferee must be an "eligible corporation" and must agree in writing that any
subsequent transfer of the interest will be to another eligible corporation in a
transaction that satisfies paragraphs 9 through 11 of this Transfer Affidavit
and the Asset Test. A transfer fails to meet the Asset Test if the transferor
knows, or has reason to know, that the transferee will not honor the
restrictions on subsequent transfers of the Certificate; and (iii) A reasonable
person would not conclude, based on the facts and circumstances known to the
transferor on or before the date of the transfer, that the taxes associated with
the Certificate will not be paid. The consideration given to the transferee to
acquire the Certificate is only one factor to be considered, but the transferor
will be deemed to know that the transferee cannot or will not pay if the amount
of consideration is so low compared to the liabilities assumed that a reasonable
person would conclude that the taxes associated with holding the Certificate
will not be paid. For purposes of applying the Asset Test, (i) an "eligible
corporation" means any domestic C corporation (as defined in section 1361(a)(2)
of the Code) other than (A) a corporation which is exempt from, or is not
subject to, tax under section 11 of the Code, (B) an entity described in section
851(a) or 856(a) of the Code, (C) A REMIC, or (D) an organization to which part
I of subchapter T of chapter 1 of subtitle A of the Code applies; (ii) a
"related person" is any person that (A) bears a relationship to the transferee
enumerated in section 267(b) or 707(b)(1) of the Code, using "20 percent"
instead of "50 percent" where it appears under the provisions, or (B) is under
common control (within the meaning of section 52(a) and (b)) with the
transferee.
"Formula Test": A transfer satisfies the formula test if the present
value of the anticipated tax liabilities associated with holding the Certificate
does not exceed the sum of (i) the present value of any consideration given to
the transferee to acquire the Certificate; (ii) the present value of the
expected future distributions on the Certificate; and (iii) the present value of
the anticipated tax savings associated with holding the Certificate as the
issuing REMIC generates losses. For purposes of applying the Formula Test: (i)
The transferee is assumed to pay tax at a rate equal to the highest rate of tax
specified in section 11(b)(1) of the Code. If the transferee has been subject to
the alternative minimum tax under section 55 of the Code in the preceding two
years and will compute its taxable income in the current taxable year using the
alternative minimum tax rate, then the tax rate specified in section 55(b)(1)(B)
of the Code may be used in lieu of the highest rate specified in section
11(b)(1) of the Code; (ii) The transfer must satisfy paragraph 9 of the Transfer
Affidavit; and (iii) Present values are computed using a
I-6
discount rate equal to the Federal short-term rate prescribed by section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
taxpayer.
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause any REMIC formed under the Agreement to
fail to qualify as a REMIC at any time that any Certificates are Outstanding.
The terms "United States," "State" and "International Organization" shall have
the meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
I-7
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
I-8
EXHIBIT 2
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) on or
about the Closing Date, 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
I-9
than a Permitted Transferee, all payments made on such Class A-R
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(5) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Class A-R Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Class A-R Certificate set forth
in this section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Class A-R Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trustee, the Sellers or the Master
Servicer, to the effect that the elimination of such restrictions will not cause
any constituent REMIC of any REMIC formed hereunder to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any ownership Interest in a Class A-R
Certificate hereby consents to any amendment of this Agreement that, based on an
Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Class A-R
Certificate is not transferred, directly or indirectly, to a Person that is not
a Permitted Transferee and (b) to provide for a means to compel the Transfer of
a Class A-R Certificate that is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
I-10
EXHIBIT J-1
FORM OF TRANSFEROR CERTIFICATE
(RESIDUAL)
_____________________
Date
CWMBS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, 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
CWMBS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, 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
CWMBS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, 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, 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 any
such plan or arrangement, nor are we using the assets of any such 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 an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
the purchase and holding of such Certificates are covered under Sections I
K-1
and III of PTCE 95-60, (e) we are acquiring the Certificates for investment for
our own account and not with a view to any distribution of such Certificates
(but without prejudice to our right at all times to sell or otherwise dispose of
the Certificates in accordance with clause (g) below), (f) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or 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
FORM OF RULE 144A LETTER
_____________________
Date
CWMBS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, 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, 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 any
such plan or arrangement, nor are we using the assets of any such 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 an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
the purchase and holding of such Certificates are covered under Sections I and
III of PTCE 95-60, (e) we have not, nor has anyone acting on our
L-1
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates, (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
Very truly yours,
_______________________________
Print Name of Transferee
By:
___________________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis either at least $100,000 in securities
or, if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis
at least $10,000,000 in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
L-3
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of
L-4
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
Print Name of Buyer
By:___________________________________
Name:
Title:
Date:_________________________________
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
L-6
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
____________________________________
Print Name of Buyer or Adviser
By: ________________________________
Name:
Title:
IF AN ADVISER:
____________________________________
Print Name of Buyer
Date: ______________________________
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
CWMBS, 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 CWMBS, 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
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,
CWMBS, 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 CWMBS, 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.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
N-2
EXHIBIT O
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
-----------------------------------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection High Cost Home Loan
Act, Ark. Code ▇▇▇. ▇▇.▇▇. ▇▇-▇▇-▇▇▇
et seq.
Effective July 16, 2003
--------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code ▇▇.▇▇. 757.01 et seq.
Effective June 2, 2003
--------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. ▇▇▇. ▇▇.▇▇. 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 High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. ▇▇.▇▇. 36a-746 et seq.
Effective October 1, 2001
--------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Covered Loan
Code ▇▇.▇▇. 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
--------------------------------------------------------------------------------
O-1
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. ▇▇▇. High Cost Home Loan
▇▇.▇▇. 494.0078 et seq.
Effective October 2, 2002
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. High Cost Home Loan
- Mar. 6, 2003) Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. High Cost Home Loan
(Mar. 7, 2003 - Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
current)
Effective for loans closed on or
after March 7, 2003
--------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15 U.S.C.
ss. 1639, 12 C.F.R. ▇▇.▇▇. 226.32
and 226.34
Effective October 1, 1995,
amendments October 1, 2002
--------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. High Risk Home Loan
Comp. Stat. tit. 815, ▇▇.▇▇. 137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License Act
effective from May 14, 2001)
--------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
▇▇▇. ▇▇.▇▇. 16a-1-101 et seq. Consumer Loan (id.
ss. 16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 -------------------
became effective April 14, 1999; High APR Consumer
Section 16a-3-308a became effective Loan (id. ss.
July 1, 1999 16a-3-308a)
--------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. ▇▇.▇▇.
360.100 et seq.
Effective June 24, 2003
--------------------------------------------------------------------------------
O-2
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee
tit. 9-A, ▇▇.▇▇. 8-101 et seq. Mortgage
Effective September 29, 1995 and
as amended from time to time
--------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
▇▇.▇▇. 32.00 et seq. and 209 C.M.R.
▇▇.▇▇. 40.01 et seq.
Effective March 22, 2001 and
amended from time to time
--------------------------------------------------------------------------------
Nevada Assembly ▇▇▇▇ No. 284, Nev. Rev. Home Loan
Stat. ▇▇.▇▇. 598D.010 et seq.
Effective October 1, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership High Cost Home Loan
Security Act of 2002, N.J. Rev.
Stat. ▇▇.▇▇. 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. High Cost Home Loan
Rev. Stat. ▇▇.▇▇. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made
on or after April 1, 2003
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Loan
High Cost Home Loans, N.C. Gen.
Stat. ▇▇.▇▇. 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code ▇▇▇.
--------------------------------------------------------------------------------
O-3
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------------------------------------------------------------
▇▇.▇▇. 1349.25 et seq.
Effective May 24, 2002
--------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10
various sections of Title 14A) Mortgage
Effective July 1, 2000; amended
effective January 1, 2004
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C.
Code ▇▇▇. ▇▇.▇▇. 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
West Virginia West Virginia Residential West Virginia
Mortgage Lender, Broker and Mortgage Loan Act
Servicer Act, W. Va. Code Loan
▇▇▇. ▇▇.▇▇ 31-17-1 et seq.
Effective June 5, 2002
--------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
---------------------------------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Covered Loan
- Mar. 6, 2003) Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Covered Home Loan
Security Act of 2002, N.J. Rev.
Stat. ▇▇.▇▇. 46:10B-22 et seq.
Effective November 27, 2003 -
July 5, 2004
--------------------------------------------------------------------------------
O-4
Standard & Poor's Home Loan Categorization
------------------------------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Home Loan
- Mar. 6, 2003) Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Home Loan
Security Act of 2002, N.J. Rev.
Stat. ▇▇.▇▇. 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Home Loan
Rev. Stat. ▇▇.▇▇. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home Loans, N.C. Gen.
Stat. ▇▇.▇▇. 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C.
Code ▇▇▇. ▇▇.▇▇. 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
O-5
EXHIBIT P
[RESERVED]
P-1
EXHIBIT Q
MONTHLY REPORT
Q-1
EXHIBIT R-1
FORM OF PERFORMANCE CERTIFICATION
(Subservicer)
Re: The Pooling and Servicing Agreement dated as of [________] (the
"Pooling and Servicing Agreement") among CWMBS, Inc., as Depositor,
Countrywide Home Loans, Inc., as a Seller, Park Monaco Inc., as a
Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, the undersigned, as Trustee and
[Subservicing Agreement] dated as of [ ] (the "Agreement")
I, ________________________________, the _______________________ of [NAME
OF COMPANY] (the "Company"), certify to the Depositor and the Master Servicer,
and their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), all servicing reports, officer's
certificates and other information relating to the servicing of the
Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the Depositor, the Master Servicer or the Trustee pursuant to
the Agreement (collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the Depositor, the Master Servicer or the Trustee, as
applicable;
(4) I am responsible for reviewing the activities performed by the
Company as a servicer under the Agreement, and based on my knowledge and
the compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
R-1-1
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the Master
Servicer. Any material instances of noncompliance described in such
reports have been disclosed to the Master Servicer. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date: _________________________
By: ________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of [________], (the
"Pooling and Servicing Agreement") among CWMBS, Inc., as Depositor,
Countrywide Home Loans, Inc., as a Seller, Park Monaco Inc., as a
Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, the undersigned, as Trustee
I, ________________________________, the _______________________ of [NAME
OF COMPANY] (the "Company"), certify to the Depositor and the Master Servicer,
and their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and Section 1122(b) of Regulation AB (the "Attestation Report"), [all
reports on Form 10-D containing statements to certificateholders filed in
respect of the period included in the year covered by the annual report of
the Trust Fund] (collectively, the "Distribution Date Statements");
(2) Assuming the accuracy and completeness of the information
delivered to the Company by the Master Servicer as provided in the Pooling
and Servicing Agreement and subject to paragraph (4) below, the
distribution information determined by the Company and set forth in the
Distribution Date Statements contained in all Form 10-D's included in the
year covered by the annual report of such Trust on Form 10-K for the
calendar year 200[ ], is complete and does not contain any material
misstatement of fact as of the last day of the period covered by such
annual report;
(3) Based solely on the information delivered to the Company by the
Master Servicer as provided in the Pooling and Servicing Agreement, (i)
the distribution information required under the Pooling and Servicing
Agreement to be contained in the Trust Fund's Distribution Date Statements
and (ii) the servicing information required to be provided by the Master
Servicer to the trustee for inclusion in the Trust Fund's Distribution
Date Statements, to the extent received by the Trustee from the Master
Servicer in accordance with the Pooling and Servicing Agreement, is
included in such Distribution Date Statements;
(4) The Company is not certifying as to the accuracy, completeness
or correctness of the information which it received from the Master
Servicer and did not
R-2-1
independently verify or confirm the accuracy, completeness or correctness
of the information provided by the Master Servicer;
(5) I am responsible for reviewing the activities performed by the
Company as a person "performing a servicing function" under the Pooling
and Servicing Agreement, and based on my knowledge and the compliance
review conducted in preparing the Servicing Assessment and except as
disclosed in the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Pooling and Servicing
Agreement; and
(6) The Servicing Assessment and Attestation Report required to be
provided by the Company and by Subcontractor pursuant to the Pooling and
Servicing Agreement, have been provided to the Master Servicer and the
Depositor. Any material instances of noncompliance described in such
reports have been disclosed to the Master Servicer and the Depositor. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: _________________________
By: ________________________________
Name:
Title:
R-2-2
EXHIBIT S
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
-------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
such servicing activities.
-------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a back-up servicer for the mortgage loans are maintained.
-------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
the transaction agreements.
-------------------------------------------------------------------------------------------------
Cash Collection and Administration
-------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days following
receipt, or such other number of days specified in the
transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel.
-------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1 (b)(1) of the
Securities Exchange Act.
-------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
-------------------------------------------------------------------------------------------------
S-1
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their
original identification, or such other number of
days specified in the transaction agreements.
-------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with
the Commission as required by its rules and regulations;
and (D) agree with investors' or the trustee's records as
to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
-------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of days specified in the transaction
agreements.
-------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
custodial bank statements.
-------------------------------------------------------------------------------------------------
Pool Asset Administration
-------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage
loan documents.
-------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as
required by the transaction agreements
-------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number
of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g.,
escrow) in
accordance with the related mortgage loan documents.
-------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
-------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
-------------------------------------------------------------------------------------------------
S-2
-------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
the transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
-------------------------------------------------------------------------------------------------
1122( d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
the related mortgage loan documents.
-------------------------------------------------------------------------------------------------
1122( d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents, on
at least an annual basis, or such other period specified in
the transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance
with applicable mortgage loan documents and state laws; and
(C) such funds are returned to the obligor within 30
calendar days of full repayment of the related mortgage
loans, or such other number of days specified
in the transaction agreements.
-------------------------------------------------------------------------------------------------
1122( d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30
calendar days prior to these dates, or such other number of
days specified in the transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
-------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction agreements.
-------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
-------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained as set forth in the transaction agreements.
-------------------------------------------------------------------------------------------------
[NAME OF MASTER SERVICER] [NAME OF
TRUSTEE] [NAME OF SUBSERVICER]
Date: _________________________
S-3
By: ________________________________
Name:
Title:
S-4
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
MORTGAGE PASS-THROUGH CERTIFICATES,
Series 200_-__
[Date]
Party Contact Information
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
-------------------- ----------------------------------------------------
T-1
EXHIBIT U
FORM OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
(Replacement of Master Servicer)
Re: CWMBS, Inc. Mortgage Pass-Through Certificates Series
200[__]-HYB[__]
The undersigned Servicer hereby certifies to the Depositor and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust Fund to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:
1. I have reviewed the servicer compliance statement of the Master
Servicer provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Master
Servicer during 200[ ] that were delivered by the Master Servicer to the Trustee
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicing Information;
3. Based on my knowledge, all of the Servicing Information required to be
provided by the Master Servicer under the Agreement has been provided to the
Depositor or the Trustee, as applicable;
4. I am responsible for reviewing the activities performed by the Master
Servicer as servicer under the Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Countrywide Home
Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Sienna LLC, as a
seller, Park Monaco Inc., as a seller, [ ], as master servicer, CWMBS, Inc., as
depositor, and The Bank of New York, as trustee, and based on my knowledge and
the compliance review conducted in preparing the Compliance Statement and except
as disclosed in the Compliance Statement, the Pooling and Servicing Assessment
or the
U-1
Attestation Report, the Master Servicer has fulfilled its obligations
under the Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the Master
Servicer pursuant to the Pooling and Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Master Servicer and by any
Subservicer or Reporting Subcontractor pursuant to the Agreement, have been
provided to the Depositor. Any material instances of noncompliance described in
such reports have been disclosed to the Depositor. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
[MASTER SERVICER]
By:________________________________
Name:
Title:
Date: _________________________
U-2