EXHIBIT 99.1
EXECUTION COPY
CWMBS, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller and Servicer,
FIFTH THIRD BANK,
Servicer
FIFTH THIRD MORTGAGE COMPANY,
Transferor
and
THE BANK OF NEW YORK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2001
----------------------------------
CWMBS MORTGAGE PASS-THROUGH TRUST 2001-19
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-19
Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans...............................II-1
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans...............II-11
SECTION 2.03. Representations, Warranties and Covenants of the Seller,
the Transferor and Servicers..............................II-14
SECTION 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans........................................II-16
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.............................................II-16
SECTION 2.06. Execution and Delivery of Certificates....................II-17
SECTION 2.07. REMIC Matters.............................................II-17
SECTION 2.08. Covenants of each Servicer................................II-17
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Servicer to Service Mortgage Loans........................III-1
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Servicers.................................................III-2
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of
the Servicers.............................................III-2
SECTION 3.04. Trustee to Act as Servicer................................III-3
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account; Supplemental Loan
Account; Capitalized Interest Account.....................III-3
SECTION 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts...........................................III-7
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans..............................III-7
SECTION 3.08. Permitted Withdrawals from the related Certificate
Account and the Distribution Account......................III-8
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies........................................III-9
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
Agreements...............................................III-11
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans...................................III-12
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files..........III-14
SECTION 3.13. Documents Records and Funds in Possession of Servicer to
be Held for the Trustee..................................III-15
SECTION 3.14. Servicing Compensation...................................III-16
SECTION 3.15. Access to Certain Documentation..........................III-16
i
SECTION 3.16. Annual Statement as to Compliance........................III-17
SECTION 3.17. Annual Independent Public Accountants' Servicing
Statement; Financial Statements..........................III-17
SECTION 3.18. Errors and Omissions Insurance; Fidelity Bonds...........III-17
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
SECTION 4.01. Advances...................................................IV-1
SECTION 4.02. Priorities of Distribution.................................IV-1
SECTION 4.03. [Reserved].................................................IV-7
SECTION 4.04. Allocation of Realized Losses.............................IV-11
SECTION 4.05. [Reserved]................................................IV-12
SECTION 4.06. Monthly Statements to Certificateholders..................IV-12
SECTION 4.07. Determination of Pass-Through Rates for COFI
Certificates..............................................IV-14
SECTION 4.08. Determination of Pass-Through Rates for LIBOR
Certificates..............................................IV-16
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates............................................V-1
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates....................................V-1
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........V-6
SECTION 5.04. Persons Deemed Owners.......................................V-6
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses...................................................V-6
SECTION 5.06. Maintenance of Office or Agency.............................V-7
ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
SECTION 6.01. Respective Liabilities of the Depositor and the
Servicers..................................................VI-1
SECTION 6.02. Merger or Consolidation of the Depositor or the
Servicers..................................................VI-1
SECTION 6.03. Limitation on Liability of the Depositor, the Seller,
the Transferor, each Servicer and Others...................VI-1
SECTION 6.04. Limitation on Resignation of Servicers.....................VI-2
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.........................................VII-2
SECTION 7.02. Trustee to Act; Appointment of Successor..................VII-3
SECTION 7.03. Notification to Certificateholders........................VII-4
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee........................................VIII-1
ii
SECTION 8.02. Certain Matters Affecting the Trustee....................VIII-2
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans....VIII-3
SECTION 8.04. Trustee May Own Certificates.............................VIII-3
SECTION 8.05. Trustee's Fees and Expenses..............................VIII-3
SECTION 8.06. Eligibility Requirements for Trustee.....................VIII-4
SECTION 8.07. Resignation and Removal of Trustee.......................VIII-4
SECTION 8.08. Successor Trustee........................................VIII-5
SECTION 8.09. Merger or Consolidation of Trustee.......................VIII-5
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee............VIII-6
SECTION 8.11. Tax Matters..............................................VIII-7
SECTION 8.12. Periodic Filings.........................................VIII-9
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage
Loans......................................................IX-1
SECTION 9.02. Final Distribution on the Certificates.....................IX-1
SECTION 9.03. Additional Termination Requirements........................IX-2
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment...................................................X-1
SECTION 10.02. Recordation of Agreement; Counterparts......................X-2
SECTION 10.03. Governing Law...............................................X-2
SECTION 10.04. Intention of Parties........................................X-3
SECTION 10.05. Notices.....................................................X-3
SECTION 10.06. Severability of Provisions..................................X-4
SECTION 10.07. Assignment..................................................X-4
SECTION 10.08. Limitation on Rights of Certificateholders..................X-4
SECTION 10.09. Inspection and Audit Rights.................................X-5
SECTION 10.10. Certificates Nonassessable and Fully Paid...................X-5
SECTION 10.11. [Reserved]..................................................X-6
SECTION 10.12. Protection of Assets........................................X-7
iii
SCHEDULES
Schedule I: Mortgage Loan Schedule.....................................S-I-1
Schedule I-A Countrywide Mortgage Loans...........................S-I-A
Schedule I-B Fifth Third Mortgage Loans...........................S-I-B
Schedule II: Representations and Warranties of the Seller, the
Transferor and the Servicers...............................S-II-1
Schedule II-A Countrywide.........................................S-II-A
Schedule II-B Fifth Third Mortgage Company and Fifth Third Bank...S-II-B
Schedule III: Representations and Warranties as to the Mortgage Loans..S-III-1
Schedule IV: Principal Balances Schedule [if applicable]...............S-IV-1
Schedule V: Form of Monthly Servicer Report............................S-V-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount
Certificates).................................................A-1
Exhibit B: Form of Subordinated Certificate..............................B-1
Exhibit C: Form of Class A-R Certificate.................................C-1
Exhibit D: Form of Notional Amount Certificate...........................D-1
Exhibit E: Form of Reverse of Certificates...............................E-1
Exhibit F-1: Form of Initial Certification of Trustee
(Initial Mortgage Loans)......................................F-1
Exhibit F-2: Form of Initial Certification of Trustee
(Supplemental Mortgage Loans).................................F-2
Exhibit G-1: Form of Delay Delivery Certification of Trustee
(Initial Mortgage Loans)......................................G-1
Exhibit G-2: Form of Delay Delivery Certification of Trustee
(Supplemental Mortgage Loans).................................G-2
Exhibit H-1: Form of Final Certification of Trustee
(Initial Mortgage Loans)......................................H-1
Exhibit H-2: Form of Final Certification of Trustee
(Supplemental Mortgage Loans).................................H-2
Exhibit I: Form of Transfer Affidavit....................................I-1
Exhibit J: Form of Transferor Certificate................................J-1
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: [Reserved] ...................................................O-1
Exhibit P: Form of Supplemental Transfer Agreement.......................P-1
Exhibit Q: Form of Transferee Certificate................................Q-1
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of August 1, 2001, among
CWMBS, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC., a New York corporation, as seller (in such
capacity, the "Seller") and as a servicer (in such capacity, a "Servicer"),
FIFTH THIRD BANK, an Ohio banking corporation, as a servicer (in such
capacity, a "Servicer"), FIFTH THIRD MORTGAGE COMPANY, an Ohio corporation, as
transferor (in such capacity, the "Transferor"), and THE BANK OF NEW YORK, a
banking corporation organized under the laws of the State of New York, as
trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. The Trust Fund, other than the
Capitalized Interest Account and the Supplement Loan Account, for federal
income tax purposes will consist of a single REMIC. The Certificates will
represent the entire beneficial ownership interest in the REMIC. The Classes
of Certificates that are designated as the Regular Certificates will
constitute Regular Interests in the REMIC. The Class A-R Certificates will
represent the sole Class of Residual Interests in the REMIC. The "latest
possible maturity date" for federal income tax purposes of all Regular
Interests created hereby will be the Latest Possible Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate
of each Class of Certificates may be issued in a different amount and, in
addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
Integral
Initial Class Multiples
Class Certificate Pass-Through Minimum in Excess of
Designation Balance Rate Denomination Minimum
Class 1-A-1 $143,954,000.00 6.75% $25,000.00 $1,000.00
Class 1-A-2 $21,023,000.00 6.75% $1,000.00 $1,000.00
Class 1-A-3 $8,000,000.00 6.75% $1,000.00 $1,000.00
Class 1-A-4 $2,000,000.00 6.75% $1,000.00 $1,000.00
Class 1-A-5 $20,000,000.00 6.75% $25,000.00 $1,000.00
Class 1-X (2) (3) $25,000.00(4) $1,000.00(4)
Class 2-A-1 $201,922,000.00 6.50% $25,000.00 $1,000.00
Class 2-A-2 $18,900,000.00 6.50% $25,000.00 $1,000.00
Class 2-A-3 $19,000,000.00 6.50% $25,000.00 $1,000.00
Class 2-A-4 $20,000,000.00 6.50% $25,000.00 $1,000.00
Class 2-A-5 $30,000,000.00 6.50% $25,000.00 $1,000.00
Class 3-A-1 $32,448,000.00 6.50% $25,000.00 $1,000.00
Class 3-X (2) (3) $25,000.00(4) $1,000.00(4)
Class PO $756,923.00 (1) $25,000.00 $1,000.00
Class A-R $100.00 6.75% (5) (5)
Class M $9,112,000.00 (6) $25,000.00 $1,000.00
Class B-1 $3,752,000.00 (6) $25,000.00 $1,000.00
Class B-2 $1,608,000.00 (6) $25,000.00 $1,000.00
Class B-3 $1,340,000.00 (6) $100,000.00 $1,000.00
Class B-4 $1,072,000.00 (6) $100,000.00 $1,000.00
Class B-5 $1,072,761.__ (6) $100,000.00 $1,000.00
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(1) The Class PO Certificates will be Principal Only Certificates and will
not bear interest. The Class PO Certificates will be comprised of three
Components, each of which is hereby designated a REMIC regular interest.
(2) Each Class of Class X Certificates will be Notional Amount Certificates.
Each Class of Class X Certificates will have no principal balance and
will bear interest on its respective Notional Amount. The Notional
Amounts of the Class 1-X and Class 3-X Certificates are initially
$173,077,754 and $25,576,477, respectively.
(3) The Pass-Through Rate for the Class 1-X Certificates for any
Distribution Date will be equal to the excess of (a) the weighted
average of the Adjusted Net Mortgage Rates of the Non-Discount Mortgage
Loans in Loan Group 1 over (b) 6.75% per annum. The Pass-
2
Through Rate for the Class 3-X Certificates for any Distribution Date
will be equal to the excess of (a) the weighted average of the Adjusted
Net Mortgage Rates of the Non-Discount Mortgage Loans in Loan Group 3
over (b) 6.50% per annum. The Pass-Through Rates for the Class 1-X and
Class 3-X Certificates for the first Distribution Date are 0.491% per
annum and 0.490% per annum, respectively.
(4) Minimum Denomination is based on the Notional Amount of such Class.
(5) The Class A-R Certificates will be issued as two separate certificates,
one with an initial Certificate Balance of $99.95 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.05.
(6) The Pass-Through Rate for each Class of Subordinate Certificates for any
Distribution Date will be equal to (a) the sum of: (i) 6.75% multiplied
by the excess of the aggregate of the Stated Principal Balances of the
Mortgage Loans in Loan Group 1 over the aggregate of the Class
Certificate Balances of the Group 1 Senior Certificates immediately
prior to that Distribution Date, (ii) 6.50% multiplied by the excess of
between the aggregate of the Stated Principal Balances of the Mortgage
Loans in Loan Group 2 over the aggregate of the Class Certificate
Balances of the Group 2 Senior Certificates immediately prior to that
Distribution Date, and (iii) 6.50% multiplied by the excess of the
aggregate of the Stated Principal Balances of the Mortgage Loans in Loan
Group 3 over the aggregate of the Class Certificate Balances of the
Group 3 Senior Certificates on that Distribution Date, divided by (b)
the aggregate Class Certificate Balance of the Subordinate Certificates
immediately prior to that Distribution Date. The Pass-Through Rate for
each Class of Subordinate Certificates for the first Distribution Date
will be 6.594% per annum.
3
Set forth below are designations of Classes or Components of Certificates to
the categories used herein:
Accretion Directed
Certificates..................Class 2-A-2 and Class 2-A-3 Certificates.
Accrual Certificates..........Class 2-A-4 Certificates.
Book-Entry Certificates.......All Classes of Certificates other than the
Physical Certificates.
Component Certificates........Class PO Certificates.
Components....................For purposes of calculating distributions of
principal and/or interest, the Component
Certificates, if any, will be comprised of
multiple payment components having the
designations, Initial Component Balances or
Notional Amounts and Pass-Through Rates set
forth below:
Class PO
Certificates
Initial
Component
Principal
Designation Balance Pass-Through Rate
----------- ------- -----------------
Class PO-1
Component $454,110 (1)
Class PO-2
Component $127,082 (1)
Class PO-3
Component $175,731 (1)
(1) The component does not bear interest.
Delay Certificates............All interest-bearing Classes of Certificates
other than the Non-Delay Certificates, if any.
ERISA-Restricted
Certificates..................The Residual Certificates and Private
Certificates and, until an ERISA Qualifying
Underwriting has occurred with respect to such
Classes, the Class PO and Class X Certificates
and any Certificate that does not satisfy the
applicable rating requirement under the
Underwriter's Exemption.
Floating Rate Certificates....None.
Inverse Floating Rate
Certificates..................None.
COFI Certificates.............None.
LIBOR Certificates............None.
Group 1
Senior Certificates..........Class 1-A-1, Class 1-A-2, Class 1-A-3, Class
1-A-4, Class 1-A-5, Class 1-X and Class A-R
Certificates and the Class PO-1 Component.
4
Group 1 Certificates..........Group 1 Senior Certificates and the portions of
the Subordinate Certificates related to Loan
Group 1.
Group 2
Senior Certificates..........Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
2-A-4 and Class 2-A-5 Certificates and Class
PO-2 Component.
Group 2 Certificates..........Group 2 Senior Certificates and the portions of
the Subordinate Certificates related to Loan
Group 2.
Group 3
Senior Certificates..........Class 3-A-1 and Class 3-X Certificates and
Class PO-3 Component.
Group 3 Certificates..........Group 3 Senior Certificates and the portions of
the Subordinate Certificates related to Loan
Group 3.
Non-Delay Certificates........None.
Notional Amount
Certificates..................Class 1-X and Class 3-X Certificates.
Offered Certificates..........All Classes of Certificates other than the
Private Certificates.
Physical Certificates.........Private Certificates and the Residual
Certificates.
Planned Principal Classes.....None.
Primary Planned Principal
Classes.......................None.
Principal Only
Certificates..................Class PO Certificates.
Private Certificates..........Class B-3, Class B-4 and Class B-5 Certificates.
Rating Agencies...............▇▇▇▇▇'▇ and Fitch.
Regular Certificates..........All Classes of Certificates, other than the
Residual Certificates.
Residual Certificates.........Class A-R Certificates.
Scheduled Principal
Classes.......................None.
Secondary Planned Principal
Class.........................None.
Senior Certificate Group......The Group 1 Senior Certificates, the
Group 2 Senior Certificates or the Group 3
Senior Certificates, as applicable.
5
Senior Certificates...........Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-X,
Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
2-A-4, Class 2-A-5, Class 3-A-1, Class 3-X
Class PO and Class A-R Certificates.
Subordinated..................Certificates . Class M, Class B-1, Class B-2,
Class B-3, Class B-4 and Class B-5 Certificates.
Support Classes...............None.
Targeted Principal
Classes.......................None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
If the aggregate Stated Principal Balance of the Initial Mortgage Loans
in Loan Group 2 on the Closing Date is equal to or greater than the aggregate
Class Certificate Balances of the Group 2 Certificates as of such date, all
references herein to "Conveyance Period", "Conveyance Period Distribution
Date", "Supplemental Loan Amount", "Supplemental Loan Account", "Supplemental
Mortgage Loan", "Supplemental Transfer Agreement" and "Supplemental Transfer
Date" shall be of no force or effect and all provisions herein related thereto
shall similarly be of no force or effect.
6
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: On each Distribution Date up to and including
the Accrual Termination Date, the Accrual Amount will be distributed as
principal, first, sequentially, to the Class 2-A-2 and Class 2-A-3
Certificates, until their respective Class Certificate Balances are reduced to
zero, and then to the Class 2-A-4 Certificates.
Accrual Amount: With respect to any Class of Accrual Certificates and
any Distribution Date prior to the Accrual Termination Date, the amount
allocable to interest on such Class of Accrual Certificates with respect to
such Distribution Date pursuant to Section 4.02(a).
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: With respect to the Class 2-A-4 Certificates,
the earlier of the Senior Credit Support Depletion Date and the Distribution
Date on which the Class Certificate Balances of the Class 2-A-2 and Class
2-A-3 Certificates are reduced to zero.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the Basic Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any time,
the per annum rate equal to the Mortgage Rate less the sum of (x) with respect
to each Lender PMI Mortgage Loan, the interest premium charged by the related
lender for the related Primary Insurance Policy and (y) the sum of the Trustee
Fee Rate and the Basic Servicing Fee Rate. For purposes of determining whether
any Substitute Mortgage Loan is a Discount Mortgage Loan or a Non-Discount
Mortgage Loan and for purposes of calculating the applicable PO Percentage,
the applicable Non-PO Percentage and the Excess Servicing Fee, each Substitute
Mortgage Loan shall be deemed to have an Adjusted Net Mortgage Rate equal to
the Adjusted Net Mortgage Rate of the Deleted Mortgage Loan for which it is
substituted.
Advance: As to a Mortgage Loan, the payment required to be made by the
Servicer of that Mortgage Loan with respect to any Distribution Date pursuant
to Section 4.01, the amount of any such payment being equal to the aggregate
of payments of principal and interest (net of the Basic Servicing Fee and net
of any net income in the case of any REO Property and, if such Mortgage Loan
is a Countrywide Mortgage Loan, for so long as Countrywide is the Servicer,
net of the related Excess Servicing Fee) that was due on the related Due Date
and not received as of the close of business on the related Determination
Date, less the aggregate amount of any such delinquent payments that the
related Servicer has determined would constitute a Nonrecoverable Advance if
advanced.
I-1
Aggregate Supplemental Purchase Amount: With respect to any Supplemental
Transfer Date and Loan Group 2, the applicable "Aggregate Supplemental
Purchase Amount" identified in the related Supplemental Transfer Agreement for
such Loan Group, which shall be an estimate of the aggregate Stated Principal
Balances of the Supplemental Mortgage Loans to be included in such Loan Group
identified in such Supplemental Transfer Agreement.
Aggregate Supplemental Transfer Amount: With respect to any Supplemental
Transfer Date and Loan Group 2, the aggregate Stated Principal Balances as of
the related Supplemental Cut-off Dates of the Supplemental Mortgage Loans to
be included in such Loan Group conveyed on such Supplemental Transfer Date, as
listed on the revised Mortgage Loan Schedule delivered pursuant to Section
2.01(f); provided, however, that such amount shall not exceed the amount on
deposit in the Supplemental Loan Account allocated to purchasing Supplemental
Mortgage Loans for such Loan Group.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allocable Share: As to any Distribution Date and any Mortgage Loan (i)
with respect to the Class 1-X and Class 3-X Certificates, (a) the ratio that
the excess, if any, of the Adjusted Net Mortgage Rate with respect to such
Mortgage Loan over the related Required Coupon bears to such Adjusted Net
Mortgage Rate or (b) if the Adjusted Net Mortgage Rate with respect to such
Mortgage Loan does not exceed the related Required Coupon, zero, (ii) with
respect to the Class PO-1, Class PO-2 and Class PO-3 Components, zero and
(iii) with respect to each other Class of Certificates the product of (b) the
lesser of (I) the ratio that the related Required Coupon bears to such
Adjusted Net Mortgage Rate and (II) one, multiplied by (b) the ratio that the
amount calculated with respect to such Distribution Date (A) with respect to
the Senior Certificates of the related Senior Certificate Group, pursuant to
clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
4.02(d)) and (B) with respect to the Subordinated Certificates, pursuant to
the definition of Assumed Interest Amount or after the second 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 Class of Certificates
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, as
applicable.
Amount Available for Senior Principal: As to any Distribution Date and
(a) Loan Group 1, the sum of (i) Available Funds for such Distribution Date
and Loan Group and (ii) Remaining Available Funds for Loan Group 2 and Loan
Group 3 for such Distribution Date, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(1)(i) or (b) Loan Group 2, the sum of (i)
Available Funds for such Distribution Date and Loan Group and (ii) Remaining
Available Funds for Loan Group 1 and Loan Group 3 for such Distribution Date,
reduced by the aggregate amount distributable (or allocable to the Accrual
Amount, if applicable) on such Distribution Date in respect of interest on the
related Senior Certificates pursuant to Section 4.02(a)(2)(i) or (c) Loan
Group 3, the sum
I-2
of (i) Available Funds for such Distribution Date and Loan Group and (ii)
Remaining Available Funds for Loan Group 1 and Loan Group 2 for such
Distribution Date, reduced by the aggregate amount distributable (or allocable
to the Accrual Amount, if applicable) on such Distribution Date in respect of
interest on the related Senior Certificates pursuant to Section 4.03(a)(3)(i).
Amount Held for Future Distribution: As to any Servicer, Distribution
Date and Mortgage Loans in a Loan Group, the aggregate amount held in the
related Certificate Account at the close of business on the related
Determination Date on account of (i) Principal Prepayments and Liquidation
Proceeds received in the month of such Distribution Date relating to such Loan
Group and (ii) all Scheduled Payments due after the related Due Date relating
to such Loan Group.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of
the Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; (ii) with
respect to a Refinancing Mortgage Loan other than a Streamlined Documentation
Mortgage Loan, the value of the Mortgaged Property based upon the appraisal
made-at the time of the origination of such Refinancing Mortgage Loan; and
(iii) with respect to a Streamlined Documentation Mortgage Loan, (a) if the
loan-to-value ratio with respect to the Original Mortgage Loan at the time of
the origination thereof was 90% 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 90%, the
value of the Mortgaged Property based upon the appraisal (which may be a
drive-by appraisal) made at the time of the origination of such Streamlined
Documentation Mortgage Loan.
Assumed Balance: With respect to any Distribution Date, Class of
Subordinated Certificates and Loan Group, each such Class' pro rata interest
(based on their respective Class Certificate Balances) in such Loan Group
equal to the product of the Subordinated Percentage for such Loan Group as of
such Distribution Date and the aggregate of the applicable Non-PO Percentage
of the Stated Principal Balance of each Mortgage Loan in such Loan Group as of
the Due Date occurring in the month of such Distribution Date.
Assumed Interest Amount: With respect to any Distribution Date and Class
of Subordinated Certificates, one month's interest accrued during the related
Interest Accrual Period at the Pass-Through Rate for such Class on the
applicable Assumed Balance.
Available Funds: As to any Servicer, Distribution Date and the Mortgage
Loans in a Loan Group, the sum of (a) the aggregate amount held in each
Certificate Account at the close of business on the related Determination Date
in respect of such Mortgage Loans net of the related Amount Held for Future
Distribution and net of amounts permitted to be withdrawn from that
Certificate Account pursuant to clauses (i) - (viii), inclusive, of Section
3.08(a) in respect of such Mortgage Loans and amounts permitted to be
withdrawn from that Distribution Account
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pursuant to clauses (i) - (iii), inclusive, of Section 3.08(b) in respect of
such Mortgage Loans, (b) the amount of the related Advance, (c) in connection
with Defective Mortgage Loans in such Loan Group, as applicable, the aggregate
of the Purchase Prices and Substitution Adjustment Amounts deposited on the
related Distribution Account Deposit Date ,(d) on each Conveyance Period
Distribution Date, the amount, if any, transferred from the Capitalized
Interest Account in respect of the applicable Capitalized Interest Requirement
with respect to the Mortgage Loans in such Loan Group, and (e) on the last
Conveyance Period Distribution Date, the amount, if any, transferred from the
Supplemental Loan Account representing the applicable Remaining Non-PO
Supplemental Loan Amount and the applicable Remaining PO Supplemental Loan
Amount, if any; provided, however, that on the second 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: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss hereunder so long as the Servicer of
that Mortgage Loan has notified the Trustee in writing that such Servicer is
diligently pursuing any remedies that may exist in connection with the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any related escrow payments in
respect of such Mortgage Loan are being advanced on a current basis by that
Servicer, in either case without giving effect to any Debt Service Reduction
or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated
to the Certificates since the Cut-off Date and (ii) any permissible reductions
in the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in
a downgrading of the then current ratings assigned to the Classes of
Certificates rated by it.
Basic Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Basic 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.
Basic Servicing Fee Rate: With respect to each Mortgage Loan, 0.25%
per annum.
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Blanket Mortgage: The mortgage or mortgages encumbering the Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York, or the
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Capitalized Interest Account: The separate Eligible Account designated
as such and created and maintained by the Trustee pursuant to Section 3.05(h)
hereof. The Capitalized Interest Account shall be treated as an "outside
reserve fund" under applicable Treasury regulations and shall not be part of
the REMIC. Except as provided in Section 3.05(h) hereof, any investment
earnings on the Capitalized Interest Account shall be treated as owned by the
Depositor and will be taxable to the Depositor.
Capitalized Interest Requirement: With respect to each Conveyance Period
Distribution Date and Loan Group, the excess, if any, of (a) the sum of (1)
the amount calculated pursuant to clause (i) of the definition of Class
Optimal Interest Distribution Amount for each Class of Certificates
(including, with respect to the Subordinated Certificates, the related Assumed
Balance of each such Class) in the Certificate Group related to such Loan
Group for such Distribution Date, plus (2) the Trustee Fee for such Loan Group
for such Distribution Date, over (b) (1)with respect to each Mortgage Loan in
such Loan Group, 1/12 of the product of the related Adjusted Mortgage Rate and
the related Stated Principal Balance as of the related Due Date (prior to
giving effect to any Scheduled Payment due on such Mortgage Loan on such Due
Date) minus (2) any related reductions required by Section 4.02(d) hereof. On
the Closing Date, the amount deposited in the Capitalized Interest Account
shall be $372,213.08, all of which shall be allocated to Loan Group 2.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by each Servicer pursuant to Section 3.05 with a depository
institution in the name of that Servicer for the benefit of the Trustee on
behalf of Certificateholders and designated "[name of servicer] in trust for
the registered holders of CWMBS Mortgage Pass-Through Trust 2001-19 Mortgage
Pass-Through Certificates Series 2001-19."
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof (A)
minus the sum of (i) all distributions of principal previously made with
respect thereto and (ii) all Realized Losses allocated thereto and, in the
case of any Subordinated Certificates, all other reductions in Certificate
Balance previously allocated thereto pursuant to Section 4.03 and (B) in the
case of any Class of Accrual Certificates, increased by the Accrual Amount
added to the Class Certificate Balance of such Class prior to such date.
Certificate Group: The Group 1, Group 2 or Group 3 Certificates, as
the context requires.
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Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed
not to be Outstanding and the Percentage Interest evidenced thereby shall not
be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person (including the Depositor) owns 100%
of the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof (other than the second sentence of Section 10.01 hereof) that requires
the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to
rely conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class 1-A-5 Priority Amount: As to any Distribution Date, the amount
equal to the sum of (i) the product of (A) the Scheduled Principal
Distribution Amount for Loan Group 1, (B) the Shift Percentage and (C) the
Class 1-A-5 Priority Percentage and (ii) the product of (A) the Unscheduled
Principal Distribution Amount for Loan Group 1, (B) the Shift Percentage and
(C) the Class 1-A-5 Priority Percentage.
Class 1-A-5 Priority Percentage: As to any Distribution Date, the
percentage equal to a fraction, the numerator of which is the Class
Certificate Balance of the Class 1-A-5 Certificates immediately prior to such
Distribution Date, and the denominator of which is equal to the aggregate of
the applicable Non-PO Percentage of the Stated Principal Balance of each
Mortgage Loan in Loan Group 1 for such Distribution Date.
Class 2-A-5 Priority Amount: As to any Distribution Date, the amount
equal to the sum of (i) the product of (A) the Scheduled Principal
Distribution Amount for Loan Group 2, (B) the Shift Percentage and (C) the
Class 2-A-5 Priority Percentage and (ii) the product of (A) the Unscheduled
Principal Distribution Amount for Loan Group 2, (B) the Shift Percentage and
(C) the Class 2-A-5 Priority Percentage.
Class 2-A-5 Priority Percentage: As to any Distribution Date, the
percentage equal to a fraction, the numerator of which is the Class
Certificate Balance of the Class 2-A-5 Certificates immediately prior to such
Distribution Date, and the denominator of which is equal to the aggregate of
the applicable Non-PO Percentage of the Stated Principal Balance of each
Mortgage Loan in Loan Group 2 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.
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Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any interest
bearing Component, any Component thereof, the sum of (i) one month's interest
accrued during the related Interest Accrual Period at the Pass-Through Rate
for such Class on the related Class Certificate Balance, Component Balance,
Notional Amount or Component Notional Amount, as applicable, subject to
reduction as provided in Section 4.02(d) and (ii) any Class Unpaid Interest
Amounts for such Class or Component.
Class PO Component: The Class PO-1 Component, the Class PO-2 Component
or the Class PO-3 Component, as applicable.
Class PO Deferred Amount: As to any Distribution Date and Loan Group,
the aggregate of the applicable PO Percentage of each Realized Loss, other
than any Excess Loss, on a Discount Mortgage Loan in that Loan Group to be
allocated to the related Class PO Component on such Distribution Date on or
prior to the Senior Credit Support Depletion Date or previously allocated to
that Class PO Component and not yet paid to the Holders of the Class PO
Certificates.
Class Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Certificate Balance of such Class of Certificates
immediately prior to such Distribution Date divided by (b) the aggregate of
the Class Certificate Balances immediately prior to such Distribution Date of
all Classes of Certificates.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
Closing Date: August 30, 2001.
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.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Class PO Component and any
Distribution Date, the Initial Component Balance thereof on the Closing Date,
less all amounts applied in
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reduction of the principal balance of such Component and Realized Losses
allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Conveyance Period: The period from the Closing Date until the earliest
of (i) the date on which the amount on deposit in the Supplemental Loan
Account for each Loan Group is equal to or less than $150,000, (ii) an Event
of Default occurs or (iii) September 30, 2001.
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.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of New York at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Attn: Mortgage-Backed Securities Group, CWMBS, Inc.
Series 2001-19, 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.
Countrywide Mortgage Loan: All of the Mortgage Loans identified as
such on the Mortgage Loan Schedule.
Cut-off Date: In the case of any Initial Mortgage Loan, August 1, 2001
and in the case of any Supplemental Mortgage Loan, the later of (i) September
1, 2001 and (ii) the date of origination of such Mortgage Loan.
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
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such Mortgage Loan which became final and non-appealable, except such a
reduction resulting from a Deficient Valuation or any reduction that results
in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court which is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: As defined in Section 2.02(a) hereof.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to Trustee on the Closing
Date. The number of Delay Delivery Mortgage Loans shall not exceed 50% of the
aggregate number of Initial Mortgage Loans as of the Closing Date and 90% of
the Supplemental Mortgage Loans conveyed on a Supplemental Transfer Date. To
the extent that Countrywide shall be in possession of any Mortgage Files with
respect to any Delay Delivery Loan, until delivery of such Mortgage File to
the Trustee as provided in Section 2.01, Countrywide shall hold such files as
Servicer hereunder, as agent and in trust for the Trustee. For the avoidance
of doubt, Delay Delivery Mortgage Loans may only be Countrywide Mortgage
Loans.
Deleted Mortgage Loan: As defined in Section 2.03(c) hereof.
Denomination: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Certificate Balance of this Certificate" or
the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Depositor: 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.
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Determination Date: As to any Distribution Date, the 22nd day of each
month or if such 22nd day is not a Business Day the next preceding Business
Day; provided, however, that if such 22nd day or such Business Day, whichever
is applicable, is less than two Business Days prior to the related
Distribution Date, the Determination Date shall be the first Business Day
which is two Business Days preceding such Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan in a Loan Group with an
Adjusted Net Mortgage Rate that is less than the Required Coupon for that
Loan Group.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New York
in trust for registered holders of CWMBS Mortgage Pass-Through Trust 2001-19
Mortgage Pass-Through Certificates, Series 2001-19." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in September 2001.
Due Date: With respect to any Distribution Date, the first day of the
month in which the related Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC
(to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with (a) the trust department of a federal or state
chartered depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Repurchase Month: As defined in Section 3.11 hereof.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
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ERISA Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a) hereof.
Event of Default: As defined in Section 7.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss realized after the Fraud
Loss Coverage Termination Date, (ii) Special Hazard Loss realized after the
Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss realized
after the Bankruptcy Coverage Termination Date.
Excess Servicing Fee: The Loan Group 2 Excess Servicing Fee.
Excess Servicing Fee Amount: As to any Group 2 Mortgage Loan and
Distribution Date, an amount payable out of each full payment of interest
received on such Mortgage Loan equal to one-twelfth of the applicable Excess
Servicing Fee Rate multiplied by the Stated Principal Balance of such Group 2
Mortgage Loan.
Excess Servicing Fee Rate: As to any Non-Discount Mortgage Loan in Loan
Group 2 the excess of (x) of Adjusted Net Mortgage Rate of such Non-Discount
Mortgage Loan over (y) the applicable Required Coupon. As to any Discount
Mortgage Loan in Loan Group 2, 0%.
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, net of any amounts previously reimbursed to the
related Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid principal
balance of such Liquidated Mortgage Loan as of the Due Date in the month in
which such Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued
interest at the Mortgage Rate from the Due Date as to which interest was last
paid or advanced (and not reimbursed) to Certificateholders up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Expense Rate: As to each Mortgage Loan, the sum of the related Basic
Servicing Fee Rate, the related Excess Servicing Fee Rate and the Trustee Fee
Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fifth Third Mortgage Loan: All of the Mortgage Loans identified as
such on the Mortgage Loan Schedule.
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Final Certification: As defined in Section 2.02(a) hereof.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential
Mortgage Surveillance Group, or such other address as Fitch may hereafter
furnish to the Depositor and each Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Insurance
Policy because of such fraud, dishonesty or misrepresentation.
Fraud Loss Coverage Amount: As of the Closing Date, $5,359,608 subject
to reduction from time to time, by the amount of Fraud Losses allocated to the
Certificates. In addition, on each anniversary of the Cut-off Date, the Fraud
Loss Coverage Amount will be reduced as follows: (a) on the first, second,
third and fourth anniversaries of the Cut-off Date, to an amount equal to the
lesser of (i) 1% of the then current Pool Stated Principal Balance and (ii)
the excess of the Fraud Loss Coverage Amount as of the preceding anniversary
of the Cut-off Date over the cumulative amount of Fraud Losses allocated to
the Certificates since such preceding anniversary; and (b) on the fifth
anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Index: With respect to any Interest Accrual Period for the COFI
Certificates, the then-applicable index used by the Trustee pursuant to
Section 4.07 to determine the applicable Pass-Through Rate for such Interest
Accrual Period for the COFI Certificates.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Coverage Amount: $100,000.
Initial Cut-off Date: August 1, 2001.
Initial Component Balance: As specified in the Preliminary Statement.
Initial Cut-off Date Pool Principal Balance: $467,339,537.
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Initial Mortgage Loan: A Mortgage Loan conveyed to the Trust Fund on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to the month
of such Distribution Date. With respect to any Non-Delay Certificates and any
Distribution Date, the one month period commencing on the 25th day of the
month preceding the month in which such Distribution Date occurs and ending on
the 24th day of the month in which such Distribution Date occurs.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for the
COFI Certificates for which the applicable Index is LIBOR, the second Business
Day prior to the first day of such Interest Accrual Period.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender PMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the borrower) acquires the Primary Insurance Policy and charges
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the Servicer of such Mortgage Loan 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 and for Countrywide Mortgage Loans, so long as
Countrywide is the Servicer, the Excess Servicing Fee Amount.
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Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Basic Servicing Fees, Servicing
Advances and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2 or Loan Group 3, 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 2 Excess Servicing Fee: As to Loan Group 2 and any
Distribution Date, an amount equal to the aggregate of the Excess Servicing
Amount.
Loan Group 3: All Mortgage Loans identified as Loan Group 3 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 such date of
determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
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.
Servicer: Countrywide Home Loans, Inc., a New York corporation, and
its successors and assigns, in its capacity as Servicer hereunder.
Servicer Advance Date: As to any Distribution Date, 12:30 p.m. Pacific
time on the Business Day immediately preceding such Distribution Date.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
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MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: ▇▇▇▇▇'▇ 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 each Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loan Purchase Agreement: That certain Mortgage Loan Purchase
and Servicing Agreement, dated as of August 20, 2001, between Fifth Third
Bank, as servicer, Fifth Third Mortgage Company, as seller, and Countrywide,
as purchaser, as amended, supplemented, or otherwise modified pursuant to its
terms.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to the provisions hereof and any Supplemental Transfer
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. For the avoidance of doubt, Mortgage Loans
includes all of the Fifth Third Mortgage Loans and all of the Countrywide
Mortgage Loans.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the related Servicer to reflect the addition of Substitute Mortgage
Loans and the deletion of Deleted Mortgage Loans pursuant to the provisions of
this Agreement and, in the case of the Group 2 Mortgage Loans, the addition of
any Supplemental Mortgage Loans pursuant to the provisions of this Agreement
and any Supplemental Transfer Agreement) transferred to the Trustee as part of
the Trust Fund and from time to time subject to this Agreement, attached
hereto as Schedule I-A with respect to the Countrywide Mortgage Loans and
Schedule I-B with respect to the Fifth Third Mortgage Loans, setting forth the
following information with respect to each Mortgage Loan by Loan Group:
(i) the loan number;
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(ii) the Mortgagor's name and the street address of the Mortgaged
Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling (b) a dwelling in a de
minimis PUD, (c) a condominium unit or PUD (other than a de
minimis PUD), (d) a two- to four-unit residential property or (e)
a Cooperative Unit;
(xi) the Mortgage Rate;
(xii) a code indicating whether the Mortgage Loan is a Lender PMI
Mortgage Loan and, in the case of any Lender PMI Mortgage Loan, a
percentage representing the amount of the related interest premium
charged to the borrower;
(xiii) the purpose for the Mortgage Loan;
(xiv) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xv) the Excess Servicing Fee for the Mortgage Loan, if any; and
(xvi) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan.
Such schedule shall also set forth the total of the amounts described
under (iv) and (v) above for all of the Mortgage Loans. Countrywide shall
update Schedule I-A the Mortgage Loan Schedule in connection with each
Supplemental Transfer Agreement within a reasonable period of time after the
delivery to it of the Schedule of Supplemental Mortgage Loans attached to the
related Supplemental Transfer Agreement as Schedule A thereto.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
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Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time, net of any interest premium charged by the mortgagee to obtain
or maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group, the amount by which the aggregate of Prepayment Interest Shortfalls for
such Loan Group during the related Prepayment Period exceeds an amount equal
to the sum of (a) one-half of the aggregate Basic Servicing Fee for such Loan
Group for such Distribution Date before reduction of the Basic Servicing Fee
in respect of such Prepayment Interest Shortfalls and (b) the excess of
one-half of the aggregate Basic Servicing Fee with respect to the Mortgage
Loans of the other Loan Groups for such Distribution Date over Prepayment
Interest Shortfalls experienced by the Mortgage Loans in such other Loan
Groups during such Prepayment Period.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Discount Mortgage Loan: Any Mortgage Loan in a Loan Group with an
Adjusted Net Mortgage Rate that is greater than or equal to the Required
Coupon for such Loan Group.
Non-PO Formula Principal Amount: As to any Distribution Date and Loan
Group, the sum of the applicable Non-PO Percentage of (a) the principal
portion of each Scheduled Payment (without giving effect, prior to the
Bankruptcy Coverage Termination Date, to any reductions thereof caused by any
Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan in
the related Loan Group on the related Due Date, (b) the Stated Principal
Balance of each Mortgage Loan in the related Loan Group that was repurchased
by the Seller or the Transferor, as applicable, or the related Servicer
pursuant to this Agreement as of such Distribution Date, (c) the Substitution
Adjustment Amount in connection with any Deleted Mortgage Loan in such Loan
Group received with respect to such Distribution Date, (d) any Insurance
Proceeds or Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in the related Loan Group that are not yet Liquidated Mortgage
Loans received during the calendar month preceding the month of such
Distribution Date, (e) with respect to each Mortgage Loan in a Loan Group that
became a Liquidated Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the amount of the Liquidation Proceeds
allocable to principal received during the calendar month preceding the month
of such Distribution Date with respect to such Mortgage Loan and (f) all
Principal Prepayments for such Loan Group received during the related
Prepayment Period; and (g) on the last Conveyance Period Distribution Date the
Remaining Non-PO Supplemental Amount, provided, however, that if a Bankruptcy
Loss that is an Excess Loss is sustained with respect to a Discount Mortgage
Loan that is not a Liquidated Mortgage Loan, the PO Formula Principal Amount
will be reduced on the related Distribution Date by the applicable PO
Percentage of the principal portion of such Bankruptcy Loss.
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Non-PO Percentage: As to any Discount Mortgage Loan in a Loan Group, a
fraction (expressed as a percentage) the numerator of which is the Adjusted
Net Mortgage Rate of such Discount Mortgage Loan and the denominator of which
is the Required Coupon for such Loan Group. As to any Non-Discount Mortgage
Loan, 100%.
Nonrecoverable Advance: With respect to any Mortgage Loan, any portion
of an Advance previously made or proposed to be made by the related Servicer
that, in the good faith judgment of that Servicer, will not be ultimately
recoverable by that 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: With respect to any Distribution Date during the
Conveyance Period and the Class 1-X Certificates, $173,077,754. With respect
to any Distribution Date following the Conveyance Period and the Class 1-X
Certificates, the aggregate of the Stated Principal Balances of the
Non-Discount Mortgage Loans in Loan Group 1 as of the Due Date in the month of
such Distribution Date (prior to giving effect to any Scheduled Payments due
on such Mortgage Loans on such Due Date). With respect to any Distribution
Date during the Conveyance Period and the Class 3-X Certificates, $25,576,477.
With respect to any Distribution Date following the Conveyance Period and the
Class 3-X Certificates, the aggregate of the Stated Principal Balances of the
Non-Discount Mortgage Loans in Loan Group 3 as of the Due Date in the month of
such Distribution Date (prior to giving effect to any Scheduled Payments due
on such Mortgage Loans on such Due Date).
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) 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 or a Servicer, or (ii), if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered to
the Depositor and the Trustee, as the case may be, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or a Servicer, including, in-house counsel, reasonably
acceptable to the Trustee; provided, however, that with respect to the
interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of the Depositor and a Servicer, (ii) not have any
direct financial interest in the Depositor or a Servicer or in any affiliate
of either, and (iii) not be connected with the Depositor or a Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Optional Termination: The termination of the trust created hereunder
in connection with the purchase of the Mortgage Loans pursuant to
Section 9.01(a) hereof.
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Original Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
Class M 3.35%
Class B-1 1.65%
Class B-2 0.95%
Class B-3 0.65%
Class B-4 0.40%
Class B-5 0.20%
Original Mortgage Loan: The mortgage loan refinanced in connection
with the origination of a Refinancing Mortgage Loan.
Original Subordinated Principal Balance: On or prior to the second
Senior Termination Date, the Subordinated Percentage for a Loan Group of the
aggregate of the applicable Non-PO Percentage of the Stated Principal Balances
of the Mortgage Loans in such Loan Group, in each case as of the Cut-off Date;
or if such date is after the second Senior Termination Date, the aggregate of
the principal balances of the Subordinated Certificates as of the Cut-off
Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: As to any Interest Accrual Period for the COFI
Certificates, the close of business on the tenth day thereof.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero, which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial.
Pass-Through Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on
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the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit
of the United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each
Rating Agency, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial
paper and/or long term unsecured debt obligations of such
depository institution or trust company (or in the case of the
principal depository institution in a holding company system, the
commercial paper or long-term unsecured debt obligations of such
holding company, but only if ▇▇▇▇▇'▇ 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
(ix) 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
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provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in Section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, or an estate or
trust whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form W-8ECI or any applicable successor
form, and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause the REMIC hereunder to fail to qualify as
a REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: With respect to any Planned Principal Class or
Component and any Distribution Date appearing in Schedule IV hereto, such
Class' or Component's portion of 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.
PO Formula Principal Amount: As to any Distribution Date and Class PO
Component, the sum of the applicable PO Percentage of (a) the principal
portion of each Scheduled Payment
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(without giving effect, prior to the Bankruptcy Coverage Termination Date, to
any reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each Mortgage Loan in the related Loan Group on the related
Due Date, (b) the Stated Principal Balance of each Mortgage Loan in the
related Loan Group that was repurchased by the Seller or the Transferor, as
applicable, or the related Servicer pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with
any Deleted Mortgage Loan in the related Loan Group received with respect to
such Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans in the related Loan
Group that are not yet Liquidated Mortgage Loans received during the calendar
month preceding the month of such Distribution Date, (e) with respect to each
Mortgage Loan in the related Loan Group that became a Liquidated Mortgage Loan
during the month preceding the calendar month of such Distribution Date, the
amount of Liquidation Proceeds allocable to principal received with respect to
such Mortgage Loan during the month preceding the month of such Distribution
Date with respect to such Mortgage Loan, (f) all Principal Prepayments with
respect to the Mortgage Loans in the related Loan Group received during the
related Prepayment Period and (g) on the last Conveyance Period Distribution
Date, the Remaining PO Supplemental Loan Amount.
PO Percentage: As to any Discount Mortgage Loan in a Loan Group, a
fraction (expressed as a percentage) the numerator of which is the excess of
the Required Coupon for such Loan Group over the Adjusted Net Mortgage Rate of
such Discount Mortgage Loan and the denominator of which is such Required
Coupon. As to any Non-Discount Mortgage Loan, 0%.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans which were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Prepayment Interest Excess: As to any Mortgage Loan and any Principal
Prepayment received by the related 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. All Prepayment Interest Excess shall
be paid to the related Servicer as additional Servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received on or after the sixteenth day of the
month preceding the month of such Distribution Date (or, in the case of the
first Distribution Date, on or after the Cut-off Date) and on or before the
last day of the month preceding the month of such Distribution Date, the
amount, if any, by which one month's interest at the related Mortgage Rate,
net of the Basic Servicing Fee Rate and, with respect to the Group 2 Mortgage
Loans, for so long as Countrywide is the related Servicer, Countrywide shall
receive the related Excess 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, the period from the 16th
day of the calendar month preceding the month of such Distribution Date (or,
in the case of the first Distribution Date, from the Cut-off Date) through the
15th of the month of such Distribution Date.
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Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Primary Planned Principal Classes: As specified in the Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the related 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.
Priority Amount: The Class 1-A-5 Priority Amount or the Class 2-A-5
Priority Amount, as applicable.
Priority Percentage: The Class 1-A-5 Priority Percentage or the Class
2-A-5 Priority Percentage, as applicable.
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date, the Subordinated Principal
Distribution Amount and any Class of Subordinated Certificates, the portion of
the Subordinated Principal Distribution Amount allocable to such Class, equal
to the product of the Subordinated Principal Distribution Amount on such
Distribution Date and a fraction, the numerator of which is the related Class
Certificate Balance thereof and the denominator of which is the aggregate of
the Class Certificate Balances of the Subordinated Certificates.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Prospectus Supplement: The Prospectus Supplement dated August 27, 2001
relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller or the Transferor, as applicable, pursuant to Section
2.02 or 2.03 hereof or purchased at the option of Countrywide 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, and (ii) accrued
interest thereon at the applicable Mortgage Rate (or at the applicable
Adjusted Mortgage Rate if Countrywide is the 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.
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Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and
each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it, approved
as a FNMA-approved mortgage insurer and having a claims paying ability rating
of at least "AA" or equivalent rating by a nationally recognized statistical
rating organization. Any replacement insurer with respect to a Mortgage Loan
must have at least as high a claims paying ability rating as the insurer it
replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein
to a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus (ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation
Proceeds are required to be distributed on the Stated Principal Balance of
such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the Cooperative Corporation and the originator of such
Mortgage Loan which establishes the rights of such originator in the
Cooperative Property.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which
such Distribution Date occurs.
Reference Bank: As defined in Section 4.07.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
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Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
Remaining Available Funds: As to any Distribution Date and Loan Group,
Available Funds for such Loan Group remaining after making the distributions
pursuant to, with respect to Loan Group 1, Section 4.02(a)(1), with respect to
Loan Group 2, Section 4.02(a)(2) and, with respect to Loan Group 3, Section
4.02(a)(3).
Remaining Non-PO Supplemental Loan Amount: With respect to each Class PO
Component and the last Conveyance Period Distribution Date, the excess of the
amount on deposit in the Supplemental Loan Account on such date over the
Remaining PO Supplemental Loan Amount.
Remaining PO Supplemental Loan Amount: With respect to the Class PO-2
Component and the last Conveyance Period Distribution Date, the excess of
$22,899 over the product of the PO Percentage and the Stated Principal Balance
of each Supplemental Mortgage Loan in Loan Group 2 as of the related
Supplemental Cut-off Date.
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.
Request for Release: The Request for Release submitted by a Servicer
to the Trustee, substantially in the form of Exhibits M and N, as appropriate.
Required Coupon: With respect to the Group 1 Mortgage Loans, 6.75% per
annum, with respect to the Group 2 Mortgage Loans, 6.50% per annum and with
respect to the Group 3 Mortgage Loans, 6.50% per annum.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement.
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Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Restricted Classes: As defined in Section 4.02(e).
Scheduled Balances: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Scheduled Principal Distribution Amount: As to any Distribution Date and
Loan Group, an amount equal to the sum of all amounts described in clauses (a)
through (d) of the definition of Non-PO Formula Principal Amount for such Loan
Group and Distribution Date; provided, however, that if a Bankruptcy Loss that
is an Excess Loss is sustained with respect to a Mortgage Loan in such Loan
Group that is not a Liquidated Mortgage Loan, the Scheduled Principal
Distribution Amounts will be reduced on the related Distribution Date by the
applicable Non-PO Percentage of the principal portion of such Bankruptcy Loss.
Secondary Planned Principal Clauses: As specified in the Preliminary
Statement.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide Home Loans, Inc., a New York corporation, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to
the Depositor.
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 of the Class Certificate Balances of each Class of Senior
Certificates of such Senior Certificate Group (other than the applicable Class
PO Component) immediately prior to such date and the denominator of which is
the aggregate of the applicable Non-PO Percentage of the Stated Principal
Balance of each Mortgage Loan in the related Loan Group as of the Due Date in
the month of such Distribution Date; provided, however, that on any
Distribution Date after the second Senior
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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 of the Class Certificate Balances of
each such Class of Senior Certificates (other than the applicable Class PO
Component) immediately prior to such date and the denominator is the aggregate
of the Class Certificate Balances of all Classes of Certificates (other than
the Class PO Certificates), immediately prior to such date.
Senior Prepayment Percentage: As to a Senior Certificate Group and any
Distribution Date during the five years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in
the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the related Senior Percentage
plus 60% of the related Subordinated Percentage for such Distribution Date;
for any Distribution Date in the third year thereafter, the related Senior
Percentage plus 40% of the related Subordinated Percentage for such
Distribution Date; for any Distribution Date in the fourth year thereafter,
the related Senior Percentage plus 20% of the related Subordinated Percentage
for such Distribution Date; and for any Distribution Date thereafter, the
related Senior Percentage for such Distribution Date (unless on any
Distribution Date the Senior Percentage exceeds the initial Senior Percentage
of such Senior Certificate Group, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in the Senior Prepayment Percentage
will occur unless both of the Senior Step Down Conditions are satisfied with
respect to all of the Loan Groups.
Senior Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i) the sum, not less than zero, of the
Senior Percentage of (x) the applicable Non-PO Percentage of all amounts
described in clauses (a) through (d) of the definition of "Non-PO Formula
Principal Amount" with respect to the related Loan Group for such Distribution
Date and (y) on the last Conveyance Period Distribution Date, the related
Remaining Non-PO Supplemental Loan Amount, (ii) with respect to any Mortgage
Loan in the related Loan Group that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the lesser
of (x) the related Senior Percentage of the applicable Non-PO Percentage of
the Stated Principal Balance of such Mortgage Loan and (y) either (A) the
related Senior Prepayment Percentage, or (B) if an Excess Loss was sustained
with respect to such Liquidated Mortgage Loan during such prior calendar
month, the related Senior Percentage, of the applicable Non-PO Percentage of
the amount of the Liquidation Proceeds allocable to principal received with
respect to such Mortgage Loan, and (iii) the sum of (x) the related Senior
Prepayment Percentage of the applicable Non-PO Percentage of the amounts
described in clause (f) of the definition of "Non-PO Formula Principal Amount"
with respect to the related Loan Group for such Distribution Date plus (y) on
the last Conveyance Period Distribution Date, the amount, if any, of the
related Remaining Non-PO Supplemental Loan Amount not applied in clause (i)
hereof provided, however that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to a Mortgage Loan in the related Loan Group that is
not a Liquidated Mortgage Loan, the Senior Principal Distribution Amount will
be reduced on the related Distribution Date by the related Senior Percentage
of the applicable Non-PO Percentage of the principal portion of such
Bankruptcy Loss; provided further, however, on any
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Distribution Date after the second Senior Termination Date, the Senior
Principal Distribution Amount for the remaining Senior Certificate Group will
be calculated pursuant to the above formula based on all the Mortgage Loans in
the Mortgage Pool, as opposed to the Mortgage Loans in the related Loan Group
and, if such Distribution Date is the second Senior Termination Date, shall be
reduced by the amount of the principal distribution made pursuant to (a) if
the Group 1 Senior Certificates are reduced to zero on such date, Section
4.02(a)(1)(ii)(y) or (b) if the Group 2 Senior Certificates are reduced to
zero on such date, Section 4.02(a)(2)(ii)(y) or (c) if the Group 3 Senior
Certificates are reduced to zero on such date, Section 4.03(a)(3)(ii)(y).
Senior Step Down Conditions: With respect to each Loan Group: (i) the
outstanding principal balance of all Mortgage Loans in a Loan Group delinquent
60 days or more (averaged over the preceding six month period), as a
percentage of (a) if such date is on or prior to the second Senior Termination
Date, the Subordinated Percentage for such Loan Group of the aggregate of the
applicable Non-PO Percentage of the aggregate Stated Principal Balances of the
Mortgage Loans in that Loan Group, or (b) if such date is after the second
Senior Termination Date, the aggregate Class Certificate Balance of the
Subordinated Certificates, does not equal or exceed 50%, and (ii) cumulative
Realized Losses on the Mortgage Loans in each Loan Group do not exceed: (a)
for the Distribution Date on the fifth anniversary of the first Distribution
Date, 30% of the Original Subordinate Principal Balance, (b) for the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of the Original Subordinate Principal Balance, (c) for the Distribution Date
on the seventh anniversary of the first Distribution Date, 40% of the Original
Subordinate Principal Balance, (d) for the Distribution Date on the eighth
anniversary of the first Distribution Date, 45% of the Original Subordinate
Principal Balance, and (e) for the Distribution Date on the ninth anniversary
of the first Distribution Date, 50% of the Original Subordinate Principal
Balance.
Senior Termination Date: For Senior Certificate Group 1, the
Distribution Date on which the Class Certificate Balance of the Group 1 Senior
Certificates (other than the Class PO-1 Component) has been reduced to zero.
For Senior Certificate Group 2, the Distribution Date on which the Class
Certificate Balances of the Group 2 Senior Certificates (other than the Class
PO-2 Component) have been reduced to zero. For Senior Certificate Group 3, the
Distribution Date on which the Class Certificate Balances of the Group 3
Senior Certificates (other than the Class PO-3 Component) have been reduced to
zero.
Servicer: Either (i) Countrywide Home Loans, Inc., a New York
corporation and its successors and assigns, or (ii) Fifth Third Bank, an Ohio
banking corporation, each in its capacity as Servicer hereunder.
Servicer Advance Date: As to any Distribution Date, 12:30 p.m. Pacific
time on the Business Day immediately preceding such Distribution Date.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by each Servicer of its
respective 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 that 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.
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Servicing Officer: Any officer of a 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 that Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Shift Percentage: As to any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. Thereafter, the Shift
Percentage for any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date will be as follows: for any
Distribution Date in the first year thereafter, 30%, for any Distribution Date
in the second year thereafter, 40% for any Distribution Date in the third year
thereafter, 60%; for any Distribution Date occurring in the fourth year
thereafter, 80%; for any Distribution Date thereafter, 100%.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to
be maintained with respect to such Mortgaged Property pursuant to Section 3.09
to the extent of the amount of such loss covered thereby, or (ii) any loss
caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, a Servicer or any of their agents or employees (without regard
to any portion of the loss not covered by any errors and omissions
policy);
(c) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and then
only for the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate or
remote or be in whole or in part caused by, contributed to or aggravated
by a peril covered by the definition of the term "Special Hazard Loss;"
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending
or expected attack:
1. by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using military, naval
or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority
or forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
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(g) insurrection, rebellion, revolution, civil war, usurped power
or action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any
government or public authority or risks of contraband or illegal
transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $5,359,608. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties
located in the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the Special
Hazard Loss Coverage Amount as of the Closing Date less the amount, if any, of
Special Hazard Losses allocated to the Certificates since the Closing Date.
All principal balances for the purpose of this definition will be calculated
as of the first day of the calendar month preceding the month of such
Distribution Date after giving effect to Scheduled Payments on the Mortgage
Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
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, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Mortgage Surveillance Monitoring, or such other address as S&P may
hereafter furnish to the Depositor and each 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) after giving effect to any previous partial
Principal Prepayments and Liquidation Proceeds allocable to principal (other
than with respect to any Liquidated Mortgage Loan) and to the payment of
principal due on such Due Date and irrespective of any delinquency in payment
by the related Mortgagor.
Streamlined Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to Countrywide's Streamlined Loan Documentation Program then in
effect.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date on or prior to the
second Senior Termination Date and Loan Group, 100% minus the Senior
Percentage for the Senior Certificate Group relating to such Loan Group for
such Distribution Date. As to any Distribution Date after the second Senior
Termination Date, 100% minus the Senior Percentage for such Distribution Date.
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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 (A) the sum, not less
than zero, of the sum of (i) the Subordinated Percentage of (x) the applicable
Non-PO Percentage for such Loan Group of all amounts described in clauses (a)
through (d) of the definition of "Non-PO Formula Principal Amount" for such
Distribution Date and (y) solely with respect to Loan Group 2, on the last
Conveyance Period Distribution Date, the Remaining Non-PO Supplemental Loan
Amount for such Loan Group, (ii) with respect to each Mortgage Loan that
became a Liquidated Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the applicable Non-PO Percentage of the
amount of the Liquidation Proceeds allocated to principal received with
respect thereto remaining after application thereof pursuant to clause (ii) of
the definition of Senior Principal Distribution Amount, up to the Subordinated
Percentage for such Loan Group of the applicable Non-PO Percentage of the
Stated Principal Balance of such Mortgage Loan and (iii) the sum of (x) the
Subordinated Prepayment Percentage of the applicable Non-PO Percentage of all
amounts described in clause (f) of the definition of "Non-PO Formula Principal
Amount" for such Loan Group and Distribution Date plus (y) solely with respect
to Loan Group 2, on the last Conveyance Period Distribution Date, the amount,
if any, of the Remaining Non-PO Supplemental Loan Amount for such Loan Group
not applied in clause (i) hereof reduced by (B) the amount of any payments in
respect of Class PO Deferred Amounts for the related Class PO Component on the
related Distribution Date provided, however, that on any Distribution Date
after the second Senior Termination Date, the Subordinated Principal
Distribution Amount will not be calculated by Loan Group but will equal the
amount calculated pursuant to the formula set forth above based on the
applicable Subordinated Percentage for the Subordinated Certificates for such
Distribution Date with respect to all of the Mortgage Loans as opposed to the
Mortgage Loans in the related Loan Group.
Subservicer: Any person to whom a Servicer has contracted for the
servicing of all or a portion of the Mortgage Loans serviced by such Servicer
pursuant to Section 3.02 hereof.
Supplemental Cut-off Date: With respect to any Supplemental Mortgage
Loan, the date of origination of such Mortgage Loan.
Supplemental Loan Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New
York, in trust for registered holders of CWMBS, Inc., CWMBS Mortgage
Pass-Through Certificates, Series 2001-19." Funds in the Supplemental Loan
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement and shall not be a part of any REMIC
created hereunder; provided, however, that any investment income earned from
Permitted Investments made with funds in the Supplemental Loan Account shall
be for the account of the Depositor.
Supplemental Mortgage Loan: Any Mortgage Loan other than an Initial
Mortgage Loan conveyed to the Trust Fund pursuant to Section 2.01 hereof and
to a Supplemental Transfer Agreement, which Mortgage Loan shall be listed on
the revised Mortgage Loan Schedule delivered pursuant to this Agreement and on
Schedule A to such Supplemental Transfer
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Agreement. When used with respect to a single Supplemental Transfer Date,
Supplemental Mortgage Loan shall mean a Supplemental Mortgage Loan conveyed to
the Trust Fund on that Supplemental Transfer Date.
Supplemental Transfer Agreement: A Supplemental Transfer Agreement
substantially in the form of Exhibit P hereto, executed and delivered by
Countrywide, as seller and servicer, the Depositor and the Trustee as provided
in Section 2.01 hereof.
Supplemental Transfer Date: For any Supplemental Transfer Agreement, the
date the related Supplemental Mortgage Loans are transferred to the Trust Fund
pursuant to the related Supplemental Transfer Agreement.
Supplemental Loan Amount: The amount deposited in the Supplemental Loan
Account on the Closing Date, which shall equal $99,052,761.72, of which
$46,669,918.13 shall be allocated to purchase Supplemental Mortgage Loans for
Loan Group 1 (the "Loan Group 1 Supplemental Loan Amount"), $25,824,558.16
shall be allocated to purchase Supplemental Mortgage Loans for Loan Group 2
(the "Loan Group 2 Supplemental Loan Amount") and $26,558,285.43 shall be
allocated to purchase Supplemental Mortgage Loans for Loan Group 3 (the "Loan
Group 3 Supplemental Loan Amount").
Supplemental Loan Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New
York, in trust for registered holders of CWMBS, Inc., Mortgage Pass-Through
Certificates, Series 2001-19." Funds in the Supplemental Loan Account shall be
held in trust for the Certificateholders for the uses and purposes set forth
in this Agreement and shall not be a part of any REMIC created hereunder;
provided, however, that any investment income earned from Permitted
Investments made with funds in the Supplemental Loan Account shall be for the
account of the Depositor.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller or
the Transferor, as applicable, for a Deleted Mortgage Loan which must, on the
date of such substitution, as confirmed in a Request for Release,
substantially in the form of Exhibit M, (i) have a Stated Principal Balance,
after deduction of the principal portion of the Scheduled Payment due in the
month of substitution, not in excess of, and not more than 10% less than the
Stated Principal Balance of the Deleted Mortgage Loan; (ii) be accruing
interest at a rate no lower than and not more than 1% per annum higher than,
that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value Ratio no higher
than that of the Deleted Mortgage Loan; (iv) have a remaining term to maturity
no greater than (and not more than one year less than that of) the Deleted
Mortgage Loan; (v) not be a Cooperative Loan unless the Deleted Mortgage Loan
was a Cooperative Loan and (vi) comply with each representation and warranty
set forth in Section 2.03 hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03.
Support Classes: As specified in the Preliminary Statement.
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Targeted Balances: With respect to any Targeted Principal Classes or
Components and any Distribution Date appearing in Schedule IV hereto, the
applicable amount appearing opposite such Distribution Date for such
respective Class or Component.
Targeted Principal Classes: As specified in the Preliminary Statement.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulationss. 1.860F-4(d) and temporary
Treasury regulationss. 301.6231(a)(7)1T. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.05.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Fee: As to any Distribution Date, an amount equal to one-twelfth
of the Trustee Fee Rate multiplied by the sum of (i) the Pool Stated Principal
Balance plus (ii) any amounts remaining in the Supplemental Loan Account
(excluding any investment earnings thereon) with respect to such Distribution
Date.
Trustee Fee Rate: With respect to each Mortgage Loan, the per annum rate
agreed upon in writing on or prior to the Closing Date by the Trustee and the
Depositor.
Trust Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest and principal received on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof; (ii) each Certificate Account, the
Distribution Account, the Supplemental Loan Account, the Capitalized Interest
Account and all amounts deposited therein pursuant to the applicable
provisions of this Agreement; (iv) property that secured a Mortgage Loan and
has been acquired by foreclosure, deed-in-lieu of foreclosure or otherwise;
(v) all of Countrywide's rights under the Mortgage Loan Purchase Agreement;
and (vi) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Underwriter's Exemption: Prohibited Transaction Exemption 2001-58, 65
Fed. Reg. 67765 (2001), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Unscheduled Principal Distribution Amount: As to any Distribution Date
and Loan Group will equal the sum of (1) with respect to each Mortgage Loan in
that Loan Group that became a Liquidated Mortgage Loan during the calendar
month preceding the month of such Distribution Date, the Non-PO Percentage of
the Liquidation Proceeds allocable to principal received with respect to such
Mortgage Loan, (2) the applicable Non-PO Percentage of the amount described in
clause (f) of the definition of Non-PO Formula Principal Amount for such
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Distribution Date and (3) the amount described in clause (g) of the definition
of Non-PO Formula Principal Amount for such Distribution Date.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on
such date.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans .
(a) Countrywide, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to
the Depositor, without recourse, (i) all the right, title and interest of
Countrywide in and to the Initial Mortgage Loans, including all interest and
principal received or receivable by Countrywide on or with respect to the
Initial Mortgage Loans after the Initial Cut-off Date and all interest and
principal payments on the Mortgage Loans received prior to the Initial Cut-off
Date in respect of installments of interest and principal due thereafter, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Initial Cut-off Date and (ii) all of
Countrywide's rights under the Mortgage Loan Purchase Agreement. 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, such delivery
may take place within thirty (30) days following the Closing Date or
twenty-one (21) days following the applicable Supplemental Transfer Date, as
applicable). Such delivery of the Mortgage Files shall be made against payment
by the Depositor of the purchase price, previously agreed to by Countrywide
and Depositor, for the Mortgage Loans. With respect to any Initial Mortgage
Loan that does not have a first payment date on or before the Due Date in the
month of the first Distribution Date or any Supplemental Mortgage Loan that
does not have a first payment date on or before the Due Date in the month
after the related Supplemental Transfer Date, Countrywide shall deposit into
the Distribution Account on or before the Distribution Account Deposit Date
relating to the applicable Distribution Date, an amount equal to one month's
interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal
Balance of such Mortgage Loan.
(b) Immediately upon the conveyance of the Initial Mortgage Loans
referred to in clause (a), the Depositor sells, transfers, assigns, sets over
and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, (i) all the right, title and interest of
the Depositor in and to the Trust Fund together with (ii) the Depositor's
right to require the Seller to cure any breach of a representation or warranty
made herein by the Seller or to repurchase or substitute for any affected
Countrywide Mortgage Loan in accordance herewith and (iii) the Depositor's
right to require the Transferor to cure any breach of a representation or
warranty made herein by the Transferor or to repurchase or substitute for any
affected Fifth Third Mortgage Loan in accordance herewith; provided, however,
that with respect to this subclause (iii), if the breach of representation or
warranty made herein occurred after August 21, 2001 but prior to the Closing
Date, Countrywide shall have the obligation to cure any such breach or to
repurchase or substitute for any affected Fifth Third Mortgage Loan.
(c) In connection with the transfer and assignment set forth in
clause (b) above, the Depositor has delivered or caused to be delivered to the
Trustee (or, in the case of the Delay Delivery Mortgage Loans that are Initial
Mortgage Loans, will deliver or cause to be delivered to the Trustee within
thirty (30) days following the Closing Date and in the case of the
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Delay Delivery Mortgage Loans that are Supplemental Mortgage Loans, will
deliver or cause to be delivered to the Trustee within twenty-one (21) days
following the applicable Supplemental Transfer Date) for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) (A) the original Mortgage Note endorsed by manual or
facsimile signature in blank in the following form: "Pay to the
order of ____________ without recourse," with all intervening
endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such
endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note); or
(B) with respect to any Lost Mortgage Note, a lost note
affidavit from the Seller stating that the original Mortgage Note
was lost or destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy of such Mortgage certified by the Seller as being a true and
complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a true copy of the Mortgage certified
as such by the applicable notary) and in the case of each MERS
Mortgage Loan, the original Mortgage, noting the presence of the
MIN of the Mortgage Loans and either language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Mortgage
Loan or if the Mortgage Loan was not a MOM Mortgage Loan at
origination, the original Mortgage and the assignment thereof to
MERS, with evidence of recording indicated thereon, or a copy of
the Mortgage certified by the public recording office in which
such Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage (which
may be included in a blanket assignment or assignments), together
with, except as provided below, all interim recorded assignments
of such mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect the
assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public
recording office, such assignment of the Mortgage may exclude the
information to be provided by the recording office; provided,
further, that such assignment of Mortgage need not be delivered in
the case of a Mortgage for which the related Mortgaged Property is
located in the Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
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(v) except as provided below, the original or duplicate
original lender's title policy or a printout of the electronic
equivalent and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(a) The Coop Shares, together with a stock power in blank;
(b) The executed Security Agreement;
(c) The executed Proprietary Lease;
(d) The executed Recognition Agreement;
(e) The executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places required to
perfect the Seller's interest in the Coop Shares and the
Proprietary Lease; and
(f) 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, the Seller agrees that it will cause, at the Trustee's expense, the
MERS(R) System to indicate that such Mortgage Loans have been assigned by the
Seller to the Trustee in accordance with this Agreement (and any Supplemental
Transfer Agreement, as applicable) for the benefit of the Certificateholders
by including (or deleting, in the case of Mortgage Loans which are repurchased
in accordance with this Agreement) in such computer files the information
required by the MERS(R) System to identify the series of the Certificates
issued in connection with such Mortgage Loans. The Seller further agrees that
it will not, and will not permit the related Servicer to, and each Servicer
agrees with respect to the Mortgage Loans serviced by it, that it will not,
alter the information referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such Mortgage
Loan is repurchased in accordance with the terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Depositor cannot deliver (a) the original recorded
Mortgage, (b) all interim recorded assignments or (c) the lender's title
policy (together with all riders thereto) satisfying the requirements of
clause (ii), (iii) or (v) above, respectively, concurrently with the execution
and delivery hereof because such document or documents have not been returned
from the applicable public recording office in the case of clause (ii) or
(iii) above, or because the title policy has not been delivered to either the
related Servicer or the Depositor by the applicable title insurer in the case
of clause (v) above, the Depositor shall promptly deliver to the Trustee, in
the case of clause (ii) or (iii) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office, but in no event
shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or,
in the case of clause (v) above, no later than 120 days following
II-3
the Closing Date; provided, however, in the event the Depositor is unable to
deliver by such date each Mortgage and each such interim assignment by reason
of the fact that any such documents have not been returned by the appropriate
recording office, or, in the case of each such interim assignment, because the
related Mortgage has not been returned by the appropriate recording office,
the Depositor shall deliver such documents to the Trustee as promptly as
possible upon receipt thereof and, in any event, within 720 days following the
Closing Date. The Depositor shall forward or cause to be forwarded to the
Trustee (a) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (b) any other documents
required to be delivered by the Depositor or the related 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 Servicer of that Mortgage Loan 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, the Seller or the Transferor, as applicable, shall
deliver to the Trustee a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage.
As promptly as practicable subsequent to such transfer and assignment,
and in any event, within thirty (30) days thereafter, the Trustee shall (i) as
the assignee thereof, affix the following language to each assignment of
Mortgage: "CWMBS Series 2001-19, The Bank of New York as trustee, (ii) cause
such assignment to be in proper form for recording in the appropriate public
office for real property records and (iii) cause to be delivered for recording
in the appropriate public office for real property records the assignments of
the Mortgages to the Trustee, except that, with respect to any assignments of
Mortgage as to which the Trustee has not received the information required to
prepare such assignment in recordable form, the Trustee's obligation to do so
and to deliver the same for such recording shall be as soon as practicable
after receipt of such information and in any event within thirty (30) days
after receipt thereof and that the Trustee need not cause to be recorded any
assignment which relates to a Mortgage Loan (a) the Mortgaged Property and
Mortgage File relating to which are located in California or (b) in any other
jurisdiction (including Puerto Rico) under the laws of which in the opinion of
counsel the recordation of such assignment is not necessary to protect the
Trustee's and the Certificateholders' interest in the related Mortgage Loan.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, will deposit in the related Certificate Account the portion of such
payment that is required to be deposited in that Certificate Account pursuant
to Section 3.05 hereof.
Notwithstanding anything to the contrary in this Agreement, within
thirty days after the Closing Date with respect to the Initial Mortgage Loans,
the Seller shall either (i) deliver to the Depositor, or at the Depositor's
direction, to the Trustee or other designee of the Depositor the Mortgage File
as required pursuant to this Section 2.01 for each Delay Delivery Mortgage
Loan or (ii) (A) substitute a Substitute Mortgage Loan for the Delay Delivery
Mortgage Loan or (B) repurchase the Delayed Delivery Mortgage Loan, which
substitution or repurchase shall be
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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 the Seller
fails to deliver a Mortgage File for any Delay Delivery Mortgage Loan within
the thirty-day period provided in the prior sentence, the Seller shall use its
best reasonable efforts to effect a substitution, rather than a repurchase of,
such Deleted Mortgage Loan and provided further that the cure period provided
for in Section 2.02 or in Section 2.03 shall not apply to the initial delivery
of the Mortgage File for such Delay Delivery Mortgage Loan, but rather the
Seller shall have five (5) Business Days to cure such failure to deliver. At
the end of such thirty-day period the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such
thirty-day period in accordance with the provisions of Section 2.02.
Notwithstanding anything to the contrary in this Agreement, within
twenty-one days after a Supplemental Transfer Date with respect to the
Supplemental Mortgage Loans only, the Seller shall either (i) deliver to the
Depositor, or at the Depositor's direction, to the Trustee or other designee
of the Depositor the Mortgage File as required pursuant to this Section 2.01
for each Delay Delivery Mortgage Loan or (ii) (A) substitute a Substitute
Mortgage Loan for the Delay Delivery Mortgage Loan or (B) repurchase the
Delayed 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 the Seller
fails to deliver a Mortgage File for any Delay Delivery Mortgage Loan within
the twenty-one-day period provided in the prior sentence, the Seller shall use
its best reasonable efforts to effect a substitution, rather than a repurchase
of, such Deleted Mortgage Loan and provided further that the cure period
provided for in Section 2.02 or in Section 2.03 shall not apply to the initial
delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but
rather the Seller shall have five (5) Business Days to cure such failure to
deliver. At the end of such twenty-one-day period the Trustee shall send a
Delay Delivery Certification for the Delay Delivery Mortgage Loans delivered
during such twenty-one-day period in accordance with the provisions of Section
2.02.
(d) Subject to the execution and delivery of the related
Supplemental Transfer Agreement as provided in Section 2.01(e) hereof and the
terms and conditions of this Agreement, the Seller sells, transfers, assigns,
sets over and otherwise conveys to the Depositor, without recourse, on each
Supplemental Transfer Date, all the right, title and interest of the Seller in
and to the Supplemental Mortgage Loans identified in such Supplemental
Transfer Agreement, including all interest and principal received and
receivable by the Seller on or with respect to such Supplemental Mortgage
Loans on and after the related Supplemental Cut-off Date (to the extent not
applied in computing the Cut-off Date Principal Balance thereof) or deposited
into the related Certificate Account by the Seller, other than principal and
interest due on such Supplemental Mortgage Loans prior to the related
Supplemental Cut-off Date.
Immediately upon the conveyance of the Supplemental Mortgage Loans
referred to in the preceding paragraph, the Depositor sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for benefit of the
Certificateholders, without recourse, all right title and interest in the
Supplemental Mortgage Loans.
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The Seller has entered into this Agreement in consideration for
the purchase of the Mortgage Loans by the Depositor and has agreed to take the
actions specified herein. The Depositor, concurrently with the execution and
delivery of this Agreement, hereby sells, transfers, assigns and otherwise
conveys to the Trustee for the use and benefit of the Certificateholders,
without recourse, all right title and interest in the portion of the Trust
Fund not otherwise conveyed to the Trust Fund pursuant to Sections 2.01(a) or
(b).
(e) On (x) the last Business Day of the calendar month of the
Closing Date and (y) upon five (5) Business Days written notice to the
Trustee, the Depositor, the Servicer (if Countrywide is not the Servicer) and
the Rating Agencies, on any other Business Day during the Conveyance Period
designated by the Seller, the Seller, the Depositor and the Trustee shall
complete, execute and deliver a Supplemental Transfer Agreement so long as no
Rating Agency has provided notice that the execution and delivery of such
Supplemental Transfer Agreement will result in a reduction or withdrawal of
the any ratings assigned to the Certificates. After the execution and delivery
of such Supplemental Transfer Agreement, on the Supplemental Transfer Date,
the Trustee shall set aside in the Supplemental Loan Account an amount equal
to the Aggregate Supplemental Purchase Amount.
The transfer of Supplemental Mortgage Loans and the other property
and rights relating to them on a Supplemental Transfer Date is subject to the
satisfaction of each of the following conditions:
(i) each Supplemental Mortgage Loan conveyed on such Supplemental
Transfer Date satisfies the representations and warranties applicable to
it under this Agreement; provided, however, that with respect to a
breach of a representation and warranty with respect to a Supplemental
Mortgage Loan, the obligation under Section 2.03(c) of this Agreement of
the Seller to cure, repurchase or replace such Supplemental Mortgage
Loan shall constitute the sole remedy against the Seller respecting such
breach available to Certificateholders, the Depositor or the Trustee;
(ii) the Trustee, the Rating Agencies, Countrywide Securities
Corporation and ▇.▇. ▇▇▇▇▇▇ Securities Inc. are provided with an Opinion
of Counsel or Opinions of Counsel with respect to the tax treatment of
the Trust Fund, to be delivered as provided pursuant to Section 2.01(f);
(iii) the Rating Agencies, Countrywide Securities Corporation and
▇.▇. ▇▇▇▇▇▇ Securities Inc. are provided with an Opinion of Counsel or
Opinions of Counsel with respect to the validity of the conveyance of
the Supplemental Mortgage Loans conveyed on such Supplemental Transfer
Date, to be delivered as provided pursuant to Section 2.01(f);
(iv) the execution and delivery of such Supplemental Transfer
Agreement or conveyance of the related Supplemental Mortgage Loans does
not result in a reduction or withdrawal of any ratings assigned to the
Certificates by the Rating Agencies;
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(v) the Supplemental Mortgage Loans conveyed on such Supplemental
Transfer Date were selected in a manner reasonably believed not to be
adverse to the interests of the holders of certificates in the affected
Certificate Group;
(vi) no Supplemental Mortgage Loan conveyed on such Supplemental
Transfer date was 60 or more days delinquent;
(vii) the aggregate PO Percentage of the Stated Principal Balance
of all Supplemental Mortgage Loans in Loan Group 2 shall not exceed
$22,899.
(viii) following the conveyance of the Supplemental Mortgage Loans
on such Supplemental Transfer Date to the Trust Fund, except as provided
below, the characteristics of Loan Group 2 will not vary by more than 5%
(other than with respect to the Average Stated Principal Balance of Loan
Group 2, which may not vary by more than 10%, weighted average mortgage
rate, which may vary by up to 10 basis points and weighted average
remaining term to maturity, which may vary by up to two months) from the
characteristics listed below; provided, that for the purpose of making
these calculations, the characteristics for any Initial Mortgage Loan
made will be taken as of the Initial Cut-off Date and the
characteristics for any Supplemental Mortgage Loan will be taken as of
the applicable Supplemental Date:
Characteristics of the Mortgage Loans in Loan Group 2
Number of Mortgage Loans........................ 735
Loan Group Principal Balance.................... $300,000,000
Stated Principal Balance:
Range........................................ $127,600 to $1,500,000
Average...................................... $408,000
Original Term to Stated Maturity................ 357 months
Weighted Average Remaining Term to Stated 357 months
Maturity
Mortgage Rate:
Range........................................ 6.00% to 9.75%
Weighted Average............................. 7.35%
Aggregate PO Balance............................ No more than $127,082
Original Loan-to Value Ratios:
Range........................................ 15.00% to 95.00%
Weighted Average............................. 73.00%
Original Loan-to Value Ratios over 80%.......... No more than 9.00%
State Distribution to Mortgaged Properties:
Located in California........................ No more than 50.00%
Located in Colorado.......................... No more than 6.00%
Located in Texas............................. No more than 5.00%
Located in Washington........................ No more than 4.00%
(No other State or District of Columbia will
be greater than 4.0%)
Occupancy Types:
Primary Home................................. At least 95.00%
Second....................................... No more than 3.00%
II-7
Investor Property............................ No more than 1.00%
Types of Mortgaged Properties:
Single Family (includes de minimus PUDs)..... At least 95.00%
Condominiums................................. No more than 4.00%
Two- to Four-FamilyUnits..................... No more than 1.00%
Manufactured Housing (treated as real
property).................................... No more than 1.00%
Purpose of Mortgage Loans:
Purchase and Rate/Term....................... At least 78.0%
Refinance (cash-out)......................... No more than 22.00%
Documentation Program:
Full/Alternative............................. At least 75.00%
Reduced...................................... No more than 25.00%
CLUES Plus................................... No more than 5.00%
Streamlined.................................. No more than 2.00%
(ix) neither the Seller nor the Depositor shall be insolvent or
shall be rendered insolvent as a result of such transfer; and
(x) the Depositor shall have delivered to the Trustee an Officer's
Certificate confirming the satisfaction of each of these conditions
precedent;
provided, however, that with respect to a breach of a representation and
warranty with respect to a Supplemental Mortgage Loan set forth in clause (i)
above, the obligation under Section 2.03 of this Agreement of the Seller to
cure, repurchase or replace such Supplemental Mortgage Loan shall constitute
the sole remedy against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
Within seven (7) Business Days after each Supplemental Transfer Date,
upon (1) delivery to the Trustee by the Depositor or the Seller of the
Opinions of Counsel referred to in Sections 2.01(e)(ii) and (iii), (2)
delivery to the Trustee by the Seller of a revised Mortgage Loan Schedule
reflecting the Supplemental Mortgage Loans conveyed on such Supplemental
Transfer Date and (3) delivery to the Trustee by the Depositor of an Officer's
Certificate confirming the satisfaction of each of the conditions precedent
set forth in this Section 2.01(e), the Trustee shall pay the Seller the
Aggregate Supplemental Transfer Amount from those funds that were set aside in
the Supplemental Loan Account pursuant to Section 2.01(d). The positive
difference, if any, between the Aggregate Supplemental Transfer Amount and the
Supplemental Transfer Purchase Amount shall be reinvested by the Trustee in
the Supplemental Loan Account and shall remain designated as a portion
thereof.
The Trustee shall not be required to investigate or otherwise verify
compliance with the conditions set forth in the preceding paragraph, except
for its own receipt of documents specified above, and shall be entitled to
rely on the required Officer's Certificate.
II-8
Within thirty days after each Supplemental Transfer Date, the Depositor
shall deliver to the Trustee a letter of a nationally recognized firm of
independent public accountants stating whether or not the Supplemental
Mortgage Loans conveyed on such Supplemental Transfer Date conform to the
characteristics in Section 2.01(e)(vi), (vii) and (viii).
(f) The Supplemental Mortgage Loans conveyed on the Supplemental
Transfer Date for inclusion in Loan Group 2 shall be determined by Countrywide
as follows:
(A) Once the Potential Mortgage Loans to be included in Loan
Group 2 are identified as provided in the preceding paragraph, the
entire potential mortgage loan pool for Loan Group 2 in its
entirety shall be tested for compliance with the Characteristics
of the Group 2 Mortgage Loans provided in Section 2.02(e)(viii)
after taking into account the addition of the Potential Mortgage
Loans to be included in Loan Group 2. If any of the
Characteristics of the Group 2 Mortgage Loans is outside any
permitted parameter (after giving effect to the variance permitted
thereto pursuant to Section 2.02(e)(viii)), then beginning with
the last Potential Mortgage Loan initially added to Loan Group 2
and progressing in reverse order, any Potential Mortgage Loan
having a characteristic that is outside of the permitted
parameters of the Characteristics of the Group 2 Mortgage Loans
violated by the total potential mortgage loan pool for Loan Group
2 shall be removed.
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 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, each Servicer, the Transferor and the Seller an Initial
Certification in the form annexed hereto 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 such Initial Mortgage Loan. The Trustee shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On or about the thirtieth (30th) day after the Closing Date, the Trustee
shall deliver to the Depositor, each Servicer, the Transferor and the Seller a
Delay Delivery Certification with respect to the Initial Mortgage Loans in the
form annexed hereto as Exhibit G, with any applicable exceptions noted
thereon.
II-9
Not later than 90 days after the Closing Date, the Trustee shall deliver
to the Depositor, each Servicer, the Transferor and the Seller a Final
Certification with respect to the Initial Mortgage Loans in the form annexed
hereto as Exhibit H, with any applicable exceptions noted thereon.
If, in the course of such review, the Trustee finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification; provided, however that the Trustee shall not make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates. The Seller or the
Transferor, as applicable, shall promptly correct or cure such defect within
90 days from the date it was so notified of such defect and, if the Seller or
the Transferor, as applicable, does not correct or cure such defect within
such period, the Seller or the Transferor, as applicable, 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 the Seller or the Transferor, as applicable, 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 Servicer or the Seller
or the Transferor, as applicable, and the Trustee over the location or status
of the recorded document, then such substitution or purchase shall occur
within 720 days from the Closing Date. The Trustee shall deliver written
notice to each Rating Agency within 270 days from the Closing Date indicating
each Mortgage Loan (a) which has not been returned by the appropriate
recording office or (b) as to which there is a dispute as to location or
status of such Mortgage Loan. Such notice shall be delivered every 90 days
thereafter until the related Mortgage Loan is returned to the Trustee. Any
such substitution pursuant to (a) above or purchase pursuant to (b) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05 hereof, if any, and any substitution pursuant
to (a) above shall not be effected prior to the additional delivery to the
Trustee of a Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such Mortgage
Loan shall be deposited by the Seller or the Transferor, as applicable, in the
related 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 the Seller or the Transferor, as applicable, and shall execute and
deliver at such parties request such instruments of transfer or assignment
prepared by the Seller or the Transferor, as applicable, in each case without
recourse, as shall be necessary to vest in the Seller or the Transferor, as
applicable, or their respective designee, the Trustee's interest in any
Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions the Seller or the Transferor, as applicable, repurchases an Initial
Mortgage Loan that is a MERS Mortgage Loan, the related 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 the Seller or the
II-10
Transferor, as applicable, 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 the Seller
or the Transferor, as applicable, as the beneficial holder of such Mortgage
Loan.
(b) Upon delivery of the Supplemental Mortgage Loans pursuant to
Supplemental Transfer Agreement, the Trustee shall acknowledge receipt of the
documents identified in any Subsequent Certification in the form annexed
hereto as Exhibit F-2 and declare that it will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that it
will hold such other assets as are included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the Mortgage
Notes in the State of California, unless otherwise permitted by the Rating
Agencies.
The Trustee agrees to execute and deliver on the Supplemental Transfer
Date to the Depositor and Countrywide a Subsequent Certification in the form
annexed hereto as Exhibit F-1. Based on its review and examination, and only
as to the documents identified in such Subsequent Certification, the Trustee
shall acknowledge that such documents appear regular on their face and relate
to such Supplemental Mortgage Loan. The Trustee shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable or appropriate for the represented purpose or that they have
actually been recorded in the real estate records or that they are other than
what they purport to be on their face.
On or about the twenty first (21st) day after the Supplemental Transfer
Date, the Trustee shall deliver to the Depositor and Countrywide a Delay
Delivery Certification with respect to the Supplemental Mortgage Loans in the
form annexed hereto as Exhibit G, with any applicable exceptions noted
thereon.
Not later than 90 days after the final Supplemental Transfer Date, the
Trustee shall deliver to the Depositor and Countrywide a Final Certification
with respect to the Supplemental Mortgage Loans in the form annexed hereto as
Exhibit H, with any applicable exceptions noted thereon.
If, in the course of such review of the Mortgage Files relating to the
Supplemental Mortgage Loans, the Trustee finds any document constituting a
part of a Mortgage File which does not meet the requirements of Section 2.01,
the Trustee shall list such as an exception in the Final Certification;
provided, however that the Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and
to that Mortgage Note or (ii) any assignment is in recordable form or is
sufficient to effect the assignment of and transfer to the assignee thereof
under the mortgage to which the assignment relates. Countrywide 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 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 the
Seller was
II-11
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 Countrywide and the Trustee
over the location or status of the recorded document, then such substitution
or purchase shall occur within 720 days from the Closing Date. The Trustee
shall deliver written notice to each Rating Agency within 270 days from the
Closing Date indicating each Mortgage Loan (a) which has not been returned by
the appropriate recording office or (b) as to which there is a dispute as to
location or status of such Mortgage Loan. Such notice shall be delivered every
90 days thereafter until the related Mortgage Loan is returned to the Trustee.
Any such substitution pursuant to (a) above or purchase pursuant to (b) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05 hereof, if any, and any substitution pursuant
to (a) above shall not be effected prior to the additional delivery to the
Trustee of a Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such Mortgage
Loan shall be deposited by the Seller in the related 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 the Seller and shall
execute and deliver at the Seller's request such instruments of transfer or
assignment prepared by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions the Seller repurchases a Supplemental Mortgage Loan that is a MERS
Mortgage Loan, Countrywide, as 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 the Seller 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
the Seller as the beneficial holder of such Mortgage Loan.
(c) The Trustee shall retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. Each 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 that
Servicer from time to time.
(d) It is understood and agreed that the obligation of the Seller
or the Transferor, as applicable, to substitute for or to purchase any
Mortgage Loan 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 the Seller and the Transferor.
SECTION 2.03. Representations, Warranties and Covenants of the Seller,
the Transferor and the Servicers.
(a) Countrywide, in its capacities as Seller and Servicer, hereby
makes the representations and warranties with respect to the Countrywide
Mortgage Loans set forth in
II-12
Schedule II-A hereto, and by this reference incorporated herein, to the
Depositor and the Trustee, as of the Closing Date, or if so specified therein,
as of the Initial Cut-off Date with respect to the Initial Mortgage Loans and
as of the related Supplemental Cut-off Date with respect to the Supplemental
Mortgage Loans. Fifth Third Mortgage Company, in its capacity as Transferor,
hereby makes the representations and warranties set forth in Schedule II-B-1
hereto, and by this reference incorporated herein, to the Seller, the
Depositor and the Trustee, as of the Closing Date, or if so specified therein,
as of the Initial Cut-off Date. Fifth Third Bank, in its capacity as Servicer,
hereby makes the representations and warranties set forth in Schedule II-B-2
hereto, and by this reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as of the Initial
Cut-off Date.
(b) Countrywide, in its capacity as Seller, hereby makes the
representations and warranties with respect to the Countrywide Mortgage Loans
set forth in Schedule III-A hereto, and by this reference incorporated herein,
to the Depositor and the Trustee, as of the Closing Date, or if so specified
therein, as of the Initial Cut-off Date. Fifth Third Mortgage Company, in its
capacity as Transferor, hereby makes the representations and warranties with
respect to the Fifth Third Mortgage Loans set forth in Schedule III-B hereto,
and by this reference incorporated herein, to the Seller, the Depositor and
the Trustee, as of August 20, 2001, or if so specified therein, as of the
Initial Cut-off Date, and Countrywide, in its capacity as purchaser pursuant
to the Mortgage Loan Purchase Agreement hereby makes the representations and
warranties with respect to the Fifth Third Mortgage Loans set forth in
Schedule III-B 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 made pursuant to Section 2.03(b) or a breach of a
representation or warranty with respect to a Supplemental Mortgage Loan under
Section 2.01(e)(i) that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach
shall give prompt notice thereof to the other parties. With respect to the
Countrywide Mortgage Loans, the Seller, and with respect to the Fifth Third
Mortgage Loans, Fifth Third Mortgage Company or Countrywide (in accordance
with their respective responsibilities set forth in paragraph (b) of this
Section 2.03) each 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 made pursuant to Section 2.03(b) and with respect
to a breach of a representation and warranty with respect to a related
Mortgage Loan under Section 2.01(e)(i) which materially and adversely affects
the interests of the Certificateholders in any Mortgage Loan, it shall cure
such breach in all material respects, and if such breach is not so cured,
shall, (i) if such 90-day period expires prior to the second anniversary of
the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from
the Trust Fund and substitute in its place a Substitute Mortgage Loan, in the
manner and subject to the conditions set forth in this Section; or (ii)
repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at
the Purchase Price in the manner set forth below; provided, however, that any
such substitution pursuant to (i) above shall not be effected prior to the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05
hereof, if any, and any such substitution pursuant to (i) above shall not be
effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit N and the Mortgage File for any
such Substitute Mortgage Loan. (in accordance with their respective
responsibilities set forth in paragraph (b) of this Section 2.03) each, as
applicable,
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shall promptly reimburse the related Servicer and the Trustee for any expenses
reasonably incurred by that 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 the
Seller's or the Transferor's knowledge, if it is discovered by either the
Depositor, the Seller or the Transferor (as applicable) 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 the
Seller's or the Transferor's (as applicable) 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, the Seller or the
Transferor (as applicable) 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 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 the Seller or the
Transferor (as applicable) shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan. The related Servicer shall amend the
Mortgage Loan Schedule for the benefit of the Certificateholders to reflect
the removal of such Deleted Mortgage Loan and the substitution of the
Substitute Mortgage Loan or Loans and the related 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 Seller or the Transferor (as applicable)
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(b) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the related 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 Seller and shall execute and deliver at the Seller's or
the Transferor's (as applicable) direction such instruments of transfer or
assignment prepared by the Seller, in each case without recourse, as shall be
necessary to vest title in the Seller or the Transferor, or their respective
designee, the Trustee's interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2.03.
For any month in which the Seller or the Transferor (as applicable)
substitutes one or more Substitute Mortgage Loans for one or more Deleted
Mortgage Loans, the related Servicer will determine the amount (if any) by
which the aggregate principal balance of all such Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Stated Principal
Balance of all such Deleted Mortgage Loans (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
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related Certificate Account by the Seller or the Transferor, as applicable, 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 the Seller or the Transferor (as applicable) shall
have repurchased a Mortgage Loan, the Purchase Price therefor shall be
deposited in the related 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 the Seller or the Transferor, as
applicable, became obligated hereunder to repurchase or replace such Mortgage
Loan and upon such deposit of the Purchase Price, the delivery of the Opinion
of Counsel required by Section 2.05 and receipt of a Request for Release in
the form of Exhibit N hereto, the Trustee shall release the related Mortgage
File held for the benefit of the Certificateholders to such Person, and the
Trustee shall execute and deliver at such Person's direction such instruments
of transfer or assignment prepared by such Person, in each case without
recourse, as shall be necessary to transfer title from the Trustee. It is
understood and agreed that the obligation under this Agreement of any Person
to cure, repurchase or replace any Mortgage Loan as to which a breach has
occurred and is continuing shall constitute the sole remedy against such
Persons respecting such breach available to Certificateholders, the Depositor
or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
SECTION 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to each Initial Mortgage Loan as of the date hereof or such other date set
forth herein that as of the Closing Date, and following the transfer of the
Initial Mortgage Loans to it by the Seller, the Depositor had good title to
the Initial Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses or counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee all
of its rights with respect to the Mortgage Loans including, without
limitation, the representations and warranties of the Seller and the
Transferor made pursuant to Section 2.03(b) hereof, together with all rights
of the Depositor to require the Seller and the Transferor to cure any breach
thereof or to repurchase or substitute for any affected Mortgage Loan in
accordance with this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.04
(referred to herein as a "breach"), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating
Agency.
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SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than
90 days after the Closing Date unless the Seller delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause each REMIC created hereunder to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Transferor,
any 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 the Seller, with respect to
any Countrywide Mortgage Loan, or the Transferor, with respect to any Fifth
Third Mortgage Loan, at such Person's 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 the Seller or the
Transferor, as applicable, the Mortgage Loan to be released pursuant hereto in
the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased for breach of a representation or warranty contained in
Section 2.03.
SECTION 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates and to perform the duties set forth in this
Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
SECTION 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes of the REMIC Provisions shall
be the Closing Date. The "tax matters person" with respect to each REMIC
hereunder shall be the Trustee and the Trustee shall hold the Tax Matters
Person Certificate. Each REMIC's fiscal year shall be the calendar year.
SECTION 2.08. Covenants of each Servicer.
Each Servicer hereby covenants to the Depositor and the Trustee for
itself only as follows:
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(a) each 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 such
Servicer pursuant to this Agreement will contain any untrue
statement of a material fact or omit to state a material fact
necessary to make such information, certificate, statement or
report not misleading.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, each Servicer shall service
and administer the applicable Mortgage Loans in accordance with the terms of
this Agreement and customary and usual standards of practice of prudent
mortgage loan servicers. The obligations of each of Countrywide and Fifth
Third Bank hereunder to service and administer the Mortgage Loans shall be
limited to the Countrywide Mortgage Loans or the Fifth Third Mortgage Loans,
respectively. In connection with such servicing and administration, each
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02 hereof, subject to the terms hereof
(i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan; provided that
such 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. Each 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 each
REMIC created hereunder to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, each 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 that 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. Each 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 that
Servicer to service and administer the Mortgage Loans to the extent that such
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 related
Servicer. Each 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 such 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
III-1
instruments with respect to such assignment or re-recording of a Mortgage in
the name of MERS, solely as nominee for the Trustee and its successors and
assigns.
In accordance with the standards of the preceding paragraph, each
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 related to the Mortgage Loans serviced by it, 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 a 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 Servicers.
(a) With respect to the Mortgage Loans serviced by it, any
Servicer may arrange for the subservicing of any Mortgage Loan by a
Subservicer pursuant to a subservicing agreement; provided, however, that such
subservicing arrangement and the terms of the related subservicing agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Unless the context
otherwise requires, references in this Agreement to actions taken or to be
taken by a Servicer in servicing the Mortgage Loans include actions taken or
to be taken by a Subservicer on behalf of that Servicer alone. Notwithstanding
the provisions of any subservicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between a Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
that Servicer shall remain obligated and liable to the Depositor, the Trustee,
the other Servicer 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 that 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 related Servicer with the same
force and effect as if performed directly by that Servicer.
(b) For purposes of this Agreement, with respect to each Mortgage
Loan serviced by it, each Servicer shall be deemed to have received any
related 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 related Servicer.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of the
Servicers.
The Depositor may, but is not obligated to, enforce the obligations of
each Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of that Servicer hereunder and
in connection with any such defaulted obligation to exercise the related
rights of that Servicer hereunder; provided that such Servicer shall not be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee (which may be the other Servicer). None of the
Trustee, the Depositor
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and the other Servicer shall have any responsibility or liability for any
action or failure to act by such Servicer nor shall the Trustee, the Depositor
or the other Servicer be obligated to supervise the performance of that
Servicer hereunder or otherwise.
SECTION 3.04. Trustee to Act as Servicer.
In the event that a Servicer shall for any reason no longer be a
Servicer hereunder (including by reason of an Event of Default), the Trustee
or its successor shall thereupon assume all of the rights and obligations of
that Servicer hereunder arising thereafter (except that the Trustee shall not
be (i) liable for losses of such Servicer pursuant to Section 3.09 hereof or
any acts or omissions of the predecessor Servicer hereunder), (ii) obligated
to make Advances if it is prohibited from doing so by applicable law, (iii)
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder including, but not limited to, repurchases or substitutions of
Mortgage Loans pursuant to Section 2.02 or 2.03 hereof, (iv) responsible for
expenses of that Servicer pursuant to Section 2.03 or (v) deemed to have made
any representations and warranties of that Servicer hereunder). Any such
assumption shall be subject to Section 7.02 hereof. If a Servicer shall for
any reason no longer be a Servicer (including by reason of any Event of
Default), the Trustee or its successor shall succeed to any rights and
obligations of that Servicer under each subservicing agreement; provided,
however, that, if Countrywide shall no longer be a Servicer, Countrywide shall
thereafter continue to be entitled to receive the Excess Servicing Fee with
respect to the Countrywide Mortgage Loans, and any successor servicer shall be
entitled to receive only the Basic Servicing Fee with respect to the
Countrywide Mortgage Loans.
Each Servicer shall, upon request of the Trustee, but at the respective
expense of each such Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the substitute
subservicing agreement to the assuming party.
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account; Supplemental Loan Account; Capitalized Interest
Account.
(a) Each 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, each 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 serviced by it and (ii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 180 days; provided, however, that no Servicer can 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 related 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
III-3
arrangements. No Servicer shall be required to institute or join in litigation
with respect to collection of any payment (whether under a Mortgage, Mortgage
Note or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if it reasonably believes that enforcing the
provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law.
(b) Each Servicer shall establish and maintain a Certificate
Account into which that Servicer shall deposit or cause to be deposited no
later than (i) with respect to Countrywide, for so long as its current
long-term credit rating is not reduced below "A-" by S&P or "A3" by ▇▇▇▇▇'▇,
two Business Days after receipt or (ii) Fifth Third Bank and Countrywide, if
it does not qualify pursuant to subclause (i) above, on a daily basis within
one Business Day of receipt, except as otherwise specifically provided herein,
the following payments and collections remitted by Subservicers or received by
it in respect of the related 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
serviced by it, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
serviced by it, net of the related Basic Servicing Fee and, with respect
to the Countrywide Mortgage Loans and for so long as Countrywide is the
Servicer, net of the related Excess Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with that Servicer's
normal servicing procedures;
(iv) any amount required to be deposited by that Servicer pursuant
to Section 3.05(e) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by that Servicer pursuant
to Section 3.09(c), and in respect of net monthly rental income from REO
Property pursuant to Section 3.11 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by that Servicer pursuant to Section 4.01;
and
(viii) any other amounts required to be deposited hereunder.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the related Servicer shall cause
funds to be deposited into the related 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 Basic Servicing Fee and, with respect
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to the Countrywide Mortgage Loans and for so long as Countrywide is the
Servicer, net of the related Excess Servicing Fee.
The foregoing requirements for remittance by each Servicer shall be
exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of prepayment penalties,
late payment charges or assumption fees, if collected, need not be remitted by
a Servicer. In the event that a Servicer shall remit any amount not required
to be remitted, it may at any time withdraw or direct the institution
maintaining the related Certificate Account to withdraw such amount from the
related Certificate Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the Trustee or such other institution
maintaining the related Certificate Account which describes the amounts
deposited in error in the related Certificate Account. Each Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to
this Section. All funds deposited in the related Certificate Account shall be
held in trust for the Certificateholders (other than any funds attributed to
any Excess Servicing Fee) until withdrawn in accordance with Section 3.08.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by each Servicer to the Trustee
pursuant to Section 3.08(a)(ix);
(ii) any amount deposited by each 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 a Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee to withdraw such amount from
the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in
the Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the Certificateholders (other than
any funds attributed to any Excess Servicing Fee) until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08.
In no event shall the Trustee incur liability for withdrawals from the
Distribution Account at the direction of the related Servicer.
(e) Each institution at which the Certificate Account, the
Supplemental Loan Account or the Distribution Account is maintained shall
invest the funds therein as directed in writing by the related Servicer (in
the case of a Certificate Account) or Countrywide (in the case of the
Supplemental Loan Account and the Distribution Account) in Permitted
Investments, which shall mature not later than (i) in the case of the related
Certificate Account or the Supplemental Loan Account the second Business Day
next preceding the related Distribution
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Account Deposit Date (except that if such Permitted Investment is an
obligation of the institution that maintains such account, then such Permitted
Investment shall mature not later than the Business Day next preceding such
Distribution Account Deposit Date) and (ii) in the case of the Distribution
Account, the Business Day next preceding the Distribution Date (except that if
such Permitted Investment is an obligation of the institution that maintains
such fund or account, then such Permitted Investment shall mature not later
than such Distribution Date) and, in each case, shall not be sold or disposed
of prior to its maturity. All such Permitted Investments shall be made in the
name of the Trustee, for the benefit of the Certificateholders. All income and
gain net of any losses realized from any such investment of funds on deposit
in the related Certificate Account, or the Distribution Account shall be for
the benefit of the related Servicer as servicing compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses
in the Certificate Account or the Distribution Account incurred in any such
account in respect of any such investments shall promptly be deposited by each
Servicer in the related Certificate Account or paid to the Trustee for deposit
into the Distribution Account. The Trustee in its fiduciary capacity shall not
be liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in the related Certificate Account, the
Supplemental Loan Account or the Distribution Account and made in accordance
with this Section 3.05.
(f) Each Servicer shall give notice to the Trustee, the Seller,
the Transferor, the other Servicer, each Rating Agency and the Depositor of
any proposed change of the location of the related Certificate Account prior
to any change thereof. The Trustee shall give notice to each Servicer, the
Seller, the Transferor, each Rating Agency and the Depositor of any proposed
change of the location of the Distribution Account prior to any change
thereof.
(g) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Supplemental Loan Account. On the Closing Date
Countrywide shall remit the Supplemental Loan Amount to the Trustee for
deposit in the Supplemental Loan Account. On each Supplemental Transfer Date,
upon satisfaction of the conditions for such Supplemental Transfer Date set
forth in Section 2.01(e), with respect to the related Supplemental Transfer
Agreement, the Trustee shall pay to Countrywide the Aggregate Supplemental
Transfer Amount held in escrow pursuant to the preceding sentence as payment
of the purchase price for the related Supplemental Mortgage Loans. If at any
time the Depositor becomes aware that the Cut-off Date Stated Principal
Balance of Supplemental Mortgage Loans reflected on any Supplemental Transfer
Agreement exceeds the actual Cut-off Date Stated Principal Balance of the
relevant Supplemental Mortgage Loans, the Depositor may so notify the Trustee
and the Trustee shall redeposit into the Supplemental Loan Account the excess
reported to it by the Depositor.
If any funds remain in the Supplemental Loan Account at the end of the
Conveyance Period, to the extent that they represent earnings on the amounts
originally deposited into the Supplemental Loan Account, the Trustee shall
distribute them to the order of the Depositor. The remaining funds shall be
transferred to the Distribution Account to be included as part of principal
distributions to the Class PO Certificates, to the extent of the Remaining PO
Supplemental Loan Amount and to the Group 2 Senior Certificates, to the extent
of the Remaining Non-PO Supplemental Loan Amount, as applicable.
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(h) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Capitalized Interest Account. On the Closing Date
Countrywide shall remit the aggregate Capitalized Interest Requirement to the
Trustee for deposit in the Capitalized Interest Account. On each Distribution
Account Deposit Date related to a Conveyance Period Distribution Date, upon
satisfaction of the conditions for such Supplemental Transfer Date set forth
in Section 2.01(e), with respect to the related Supplemental Transfer
Agreement, the Trustee shall transfer from the Capitalized Interest Account to
the Distribution Account an amount equal to the Capitalized Interest
Requirement (which, to the extent required, may include investment earnings on
amounts on deposit therein) with respect to the amount remaining in the
Supplemental Loan Account for the related Distribution Date as identified by
Countrywide in the Supplemental Transfer Agreement.
If any funds remain in the Capitalized Interest Account at the end
of the Conveyance Period, the Trustee shall make the transfer described in the
preceding paragraph if necessary for the remaining Conveyance Period
Distribution Date and the Trustee shall distribute any remaining funds in the
Capitalized Interest Account to the order of the Depositor.
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, with respect to the Mortgage Loans serviced by it,
each Servicer shall establish and maintain one or more accounts (each, an
"Escrow Account") and deposit and retain therein all collections from the
Mortgagors (or advances by that Servicer) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require a 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 related Servicer out of related collections for any payments
made pursuant to Sections 3.01 hereof (with respect to taxes and assessments
and insurance premiums) and 3.09 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums determined to be overages, to pay interest,
if required by law or the terms of the related Mortgage or Mortgage Note, to
Mortgagors on balances in the Escrow Account or to clear and terminate the
Escrow Account at the termination of this Agreement in accordance with Section
9.01 hereof. The Escrow Accounts shall not be a part of the Trust Fund.
(c) With respect to the Mortgage Loans serviced by it, each
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 each Servicer shall be
required so to advance only to the extent that such advances, in the good
faith judgment of that Servicer, will be recoverable by such Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
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SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
Each Servicer shall afford the Depositor and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans serviced
by it 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 that Servicer.
Upon reasonable advance notice in writing, each Servicer will provide to
each Certificateholder 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 to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates;
provided that the related Servicer shall be entitled to be reimbursed by each
such Certificateholder for actual expenses incurred by such Servicer in
providing such reports and access.
If Countrywide is not acting as Servicer, the successor Servicer shall
provide Countrywide with such information as may be necessary to verify the
amount of the Excess Servicing Fee for each Distribution Date. If a question
should arise as to the proper amount of the Excess Servicing Fee, the
successor Servicer shall provide Countrywide with access to such books and
records and personnel of the successor Servicer as may be necessary to
establish the proper amount of the Excess Servicing Fee.
SECTION 3.08. Permitted Withdrawals from the related Certificate
Account and the Distribution Account.
(a) Each Servicer may from time to time make withdrawals from the
related Certificate Account for the following purposes:
(i) to pay to that Servicer (to the extent not previously retained
by such Servicer) the servicing compensation to which it is entitled
pursuant to Section 3.14, and to pay to that Servicer, as additional
servicing compensation, earnings on or investment income with respect to
funds in or credited to the related Certificate Account;
(ii) to reimburse that Servicer 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) serviced by such
Servicer in respect of which any such Advance was made;
(iii) to reimburse that Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse that Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse that Servicer for (a) unreimbursed Servicing
Advances, each Servicer's right to reimbursement pursuant to this clause
(a) with respect to any Mortgage
III-8
Loan serviced by it being limited to amounts received on such Mortgage
Loan(s) which represent late recoveries of the payments for which such
advances were made pursuant to Section 3.01 or Section 3.06 and (b) for
unpaid Basic Servicing Fees as provided in Section 3.11 hereof;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or property acquired in respect thereof that has been purchased pursuant
to Section 2.02, 2.03 or 3.11, all amounts received thereon after the
date of such purchase;
(vii) to reimburse the Seller, the Transferor, the related
Servicer or the Depositor for expenses incurred by any of them and
reimbursable pursuant to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the related Certificate
Account and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to
withdraw an amount equal to the related Available Funds and the Trustee
Fee (and, if Countrywide is not the Servicer, an amount equal to the
Excess Servicing Fee) for such Distribution Date and remit such amount
to the Trustee for deposit in the Distribution Account; and
(x) to clear and terminate the related Certificate Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
With respect to the Mortgage Loans serviced by it, each Servicer shall
keep and maintain separate accounting, on a Mortgage Loan by Mortgage Loan
basis, for the purpose of justifying any withdrawal from the related
Certificate Account pursuant to such subclauses (i), (ii), (iv), (v) and (vi).
Prior to making any withdrawal from the related Certificate Account pursuant
to subclause (iii), each Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by that 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 each Servicer, pro rata, as additional servicing
compensation earnings on or investment income with respect to funds in
the Distribution Account;
(iii) to withdraw and return to the related Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein;
III-9
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01 hereof; and
(v) if Countrywide is not the Servicer, to pay to Countrywide the
Excess Servicing Fee for the related Distribution Date.
(c) [Reserved].
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) With respect to the Mortgage Loans serviced by it, each
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 a 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 that Servicer's normal servicing procedures) shall be deposited in the
related Certificate Account. Any cost incurred by a 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 related Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs
shall be recoverable by the related Servicer out of late payments by the
related Mortgagor or out of Liquidation Proceeds to the extent permitted by
Section 3.08 hereof. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special
flood hazard area and such area is participating in the national flood
insurance program, the related 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 original 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) With respect to each Mortgage Loan serviced by it, each
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 that Servicer, would have been covered thereunder. No Servicer shall cancel
or refuse to renew any such Primary Insurance Policy that is in effect at the
date of the initial issuance of the Certificates and is required to be kept in
force hereunder unless the replacement Primary Insurance Policy for such
canceled or non-renewed policy is maintained with a Qualified Insurer.
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With respect to each Mortgage Loan serviced by it (other than any Lender
PMI Mortgage Loans), each 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 serviced by it, the related Servicer shall maintain
the Primary Insurance Policy for the life of such Mortgage Loans, unless
otherwise prohibited by law.
Each 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 that Servicer from the related liquidation proceeds.
(c) In connection with its activities as a Servicer of the
Mortgage Loans serviced by it, each Servicer agrees to present on behalf of
itself, the Trustee and Certificateholders, claims to the insurer under any
related 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 a Servicer under any Primary Insurance Policies shall be deposited in the
related 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 related
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,
no Servicer is required to exercise such rights with respect to a Mortgage
Loan serviced by it 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 related 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, that 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 related
Servicer enters such agreement) by the applicable Required Insurance Policies.
With respect to the Mortgage Loans serviced by it, each Servicer, subject to
Section 3.10(b), is also authorized with the prior approval of the insurers
under any Required Insurance Policies to enter into a substitution of
liability agreement with such Person, pursuant to which the original Mortgagor
is released from liability and such Person is substituted as Mortgagor and
becomes liable under the Mortgage Note. Notwithstanding the foregoing, no
Servicer shall be deemed to
III-11
be in default under this Section by reason of any transfer or assumption which
that Servicer reasonably believes it is restricted by law from preventing, for
any reason whatsoever.
(b) Subject to each Servicer's duty to enforce any due-on-sale
clause with respect to the Mortgage Loans serviced by it to the extent set
forth in Section 3.10(a) hereof, in any case in which a Mortgaged Property has
been conveyed to a Person by a Mortgagor, and such Person is to enter into an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the related 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 related 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, that 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 related 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 a
Servicer for entering into an assumption or substitution of liability
agreement will be retained by that Servicer as additional servicing
compensation.
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
With respect to the Mortgage Loans serviced by it, each Servicer shall
use reasonable efforts to foreclose upon or otherwise comparably convert the
ownership of properties securing such of those Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments. In connection with such foreclosure or
other conversion, each 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 no Servicer shall
be required to expend its own funds in connection with any foreclosure or
towards the restoration of any property unless it shall determine (i) that
such restoration and/or foreclosure will increase the proceeds of liquidation
of the Mortgage Loan after reimbursement to itself of such expenses and (ii)
that such expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
related Certificate Account). The related Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the
liquidation proceeds with
III-12
respect to the related Mortgaged Property, as provided in the definition of
Liquidation Proceeds. If a Servicer has knowledge that a Mortgaged Property
which that Servicer is contemplating acquiring in foreclosure or by deed in
lieu of foreclosure is located within a 1 mile radius of any site listed in
the Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or
other site with environmental or hazardous waste risks known to that Servicer,
such 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. Each Servicer shall ensure that the title
to such REO Property, if serviced by that Servicer, references the Pooling and
Servicing Agreement and the Trustee's capacity thereunder. Pursuant to its
efforts to sell such REO Property, the related Servicer shall either itself or
through an agent selected by that 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 that Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. Each
Servicer shall prepare for and deliver to the Trustee a statement with respect
to each REO Property serviced by it 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 related Certificate Account no later than the close of business on each
Determination Date. Each 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 related Servicer shall dispose of such Mortgaged Property
as soon as practicable in a manner that maximizes the Liquidation Proceeds
thereof, but in no event later than three years after its acquisition by the
Trust Fund. In that event, the Trustee shall have been supplied with an
Opinion of Counsel to the effect that the holding by the Trust Fund of such
Mortgaged Property subsequent to a three-year period, if applicable, will not
result in the imposition of taxes on "prohibited transactions" of any REMIC
hereunder as defined in section 860F of the Code or cause any REMIC hereunder
to fail to qualify as a REMIC at any time that any Certificates are
outstanding, and 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
III-13
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 related 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 related 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 a Servicer to foreclose on a defaulted Mortgage Loan
serviced by it shall be subject to a determination by that 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 related Servicer for expenses incurred
(including any property or other taxes) in connection with such management and
net of unreimbursed Basic 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 related 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 related Servicer for any related
unreimbursed Servicing Advances and Basic Servicing Fees; second, to reimburse
the related Servicer for any unreimbursed Advances; third, to reimburse the
related Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by that Servicer pursuant to Section
3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fifth, as a recovery of
principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by that Servicer as additional
servicing compensation pursuant to Section 3.14.
Countrywide, in its sole discretion, shall have the right to purchase
for its own account any Mortgage Loan from any Loan Group which is 151 days or
more delinquent at a price equal to the Purchase Price; provided, however,
that Countrywide may only exercise this right on or
III-14
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 Countrywide pursuant to this
Section in any ensuing Eligible Repurchase Month. The Purchase Price for any
Mortgage Loan purchased hereunder shall be deposited in the related
Certificate Account and the Trustee, upon receipt of a certificate from
Countrywide in the form of Exhibit N hereto, shall release or cause to be
released to the purchaser of such Mortgage Loan the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment prepared
by the purchaser of such Mortgage Loan, in each case without recourse, as
shall be necessary to vest in the purchaser of such Mortgage Loan any Mortgage
Loan released pursuant hereto and the purchaser of such Mortgage Loan shall
succeed to all the Trustee's right, title and interest in and to such Mortgage
Loan and all security and documents related thereto. Such assignment shall be
an assignment outright and not for security. The purchaser of such Mortgage
Loan shall thereupon own such Mortgage Loan, and all security and documents,
free of any further obligation to the Trustee or the Certificateholders with
respect thereto.
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan serviced by it, or the
receipt by the related Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the related 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
that Servicer, and the Trustee shall at such Servicer's direction execute and
deliver to that 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 related Servicer, together with the
Mortgage Note with written evidence of cancellation thereon. With respect to
the Mortgage Loans serviced by it, each 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 related Servicer. Subject to the further limitations
set forth below, the related Servicer shall cause the Mortgage File or
documents so released to be returned to the Trustee when the need therefor by
such Servicer no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the related Certificate Account, in which
case that Servicer shall deliver to the Trustee a Request for Release in the
form of Exhibit N, signed by a Servicing Officer.
With respect to any Mortgage Loan serviced by it, if a Servicer at any
time seeks to initiate a foreclosure proceeding in respect of any Mortgaged
Property as authorized by this
III-15
Agreement, that Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
SECTION 3.13. Documents Records and Funds in Possession of Servicer to
be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, each Servicer
shall transmit to the Trustee as required by this Agreement all documents and
instruments in respect of a Mortgage Loan serviced by that Servicer coming
into the possession of that Servicer from time to time and shall account fully
to the Trustee for any funds received by that Servicer or which otherwise are
collected by such Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any such Mortgage Loan. All Mortgage Files and funds collected or
held by, or under the control of, a Servicer in respect of any Mortgage Loans
serviced by it, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including but not limited to, any funds on
deposit in the related Certificate Account, shall be held by that 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. Each Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the related
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 serviced by it, except,
however, that the related Servicer shall be entitled to set off against and
deduct from any such funds any amounts that are properly due and payable to
that Servicer under this Agreement.
SECTION 3.14. Servicing Compensation.
As compensation for its activities hereunder, each Servicer shall be
entitled to retain or withdraw from the related Certificate Account an amount
equal to the Basic Servicing Fee with respect to the Mortgage Loans serviced
by it, and, in the case of Countrywide as Servicer, the Excess Servicing Fee;
provided, that the aggregate Basic Servicing Fee for a Servicer with respect
to any Distribution Date shall be reduced (i) by an amount equal to the
aggregate of the Prepayment Interest Shortfalls, if any, with respect to such
Distribution Date, but not below an amount equal to one-half of the aggregate
Basic Servicing Fee for such Servicer for such Distribution Date before
reduction thereof in respect of such Prepayment Interest Shortfalls, and (ii)
with respect to Countrywide, all of the Mortgage Loans and the first
Distribution Date, an amount equal to any amount to be deposited into the
Distribution Account by the Depositor pursuant to Section 2.01(a) and not so
deposited; provided further, that if a successor to Countrywide shall be
approved as Servicer for any reason, the Excess Servicing Fee for each
Distribution Date following such appointment shall be paid, pursuant to this
Section 3.14, to Countrywide pursuant to Section 3.08(b)(v) hereof, and not to
such successor to Countrywide.
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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 related Servicer to the extent
not required to be deposited in the related Certificate Account pursuant to
Section 3.05 hereof. Each Servicer shall be required to pay all expenses
incurred by it in connection with its Servicing activities hereunder
(including payment of any premiums for hazard insurance and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
SECTION 3.15. Access to Certain Documentation.
Each Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Subordinated Certificates 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 each Servicer.
Nothing in this Section shall limit the obligation of a Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of a 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.
Each Servicer shall deliver to the Depositor and the Trustee on or
before 120 days after the end of that Servicer's fiscal year, commencing with
its 2002 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of that Servicer during the
preceding calendar year and of the performance of that 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 related Servicer has
fulfilled all its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. The Trustee shall forward a copy of each such statement to each
Rating Agency.
SECTION 3.17. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of each Servicer's fiscal year,
commencing with its 2002 fiscal year, each Servicer at its expense shall cause
a nationally or regionally recognized firm of independent public accountants
(who may also render other services to a Servicer, the Seller, the Transferor
or any affiliate thereof) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement
or of mortgage loans under pooling and servicing agreements substantially
similar to this Agreement (such statement to have attached thereto a schedule
setting forth the pooling and servicing agreements covered thereby) and that,
on the basis of such examination, conducted substantially in compliance with
the Uniform Single
III-17
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FNMA and FHLMC, such servicing has been conducted in compliance
with such pooling and servicing agreements except for such significant
exceptions or errors in records that, in the opinion of such firm, the Uniform
Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FNMA and FHLMC requires it to report. In rendering such
statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Subservicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FNMA and FHLMC (rendered within one year of such statement) of independent
public accountants with respect to the related Subservicer. Copies of such
statement shall be provided by the Trustee to any Certificateholder upon
request at Countrywide's expense, provided that such statement is delivered by
that Servicer to the Trustee.
SECTION 3.18. Errors and Omissions Insurance; Fidelity Bonds.
Each Servicer shall for so long as it acts as a 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 a
Servicer hereunder and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the
event that any such policy or bond ceases to be in effect, each Servicer shall
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS
SECTION 4.01. Advances.
With respect to the Mortgage Loans serviced by it, each Servicer shall
determine on or before each Servicer Advance Date whether it is required to
make an Advance pursuant to the definition thereof. If a Servicer determines
it is required to make an Advance, it shall, on or before the Servicer Advance
Date, either (i) deposit into the related Certificate Account an amount equal
to the Advance or (ii) make an appropriate entry in its records relating to
the related Certificate Account that any Amount Held for Future Distribution
has been used by that Servicer in discharge of its obligation to make any such
Advance. Any funds so applied shall be replaced by that Servicer by deposit in
the related Certificate Account no later than the close of business on the
next Servicer Advance Date. Each Servicer shall be entitled to be reimbursed
from the related 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.
Each Servicer shall deliver to the Trustee on the related Servicer
Advance Date an Officer's Certificate of a Servicing Officer indicating the
amount of any proposed Advance determined by that Servicer to be a
Nonrecoverable Advance.
SECTION 4.02. Priorities of Distribution.
(a) (1) With respect to the Available Funds for Loan Group 1 and
Remaining Available Funds for Loan Group 2 and Loan Group 3, on each
Distribution Date, the Trustee shall withdraw such Available Funds from the
Distribution Account and apply such funds to distributions on the specified
Classes of Group 1 Senior Certificates in the following order and priority
and, in each case, to the extent of such funds remaining:
(i) [Reserved];
(ii) to each interest-bearing Class of Group 1 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated
among such Classes in proportion to the amount of the Class Optimal
Interest Distribution Amount 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) to the Class PO-1 Component, an amount
allocable to principal equal to the sum of the related PO
Formula Principal Amount, up to the outstanding Component
Balance thereof; and
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(y) on each Distribution Date prior to the Senior
Credit Support Depletion Date, the sum of the related
Non-PO Formula Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 1 for
such Distribution Date, will be distributed in the
following order of priority:
(1) to the Class A-R Certificates, until its Class Certificate Balance
is reduced to zero;
(2) to the Class 1-A-5 Certificates, the Class 1-A-5 Priority Amount,
until its Class Certificate Balance is reduced to zero;
(3) sequentially, to the Class 1-A-1, Class 1-A-2, Class 1-A-3 and
Class 1-A-4 Certificates, in that order, until their respective
Class Certificate Balances are reduced to zero; and
(4) to the Class 1-A-5 Certificates, without regard to the Class 1-A-5
Priority Amount, until its Class Certificate Balance is reduced to
zero;
(v) to the Class PO-1 Component, any related Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant to
clause (A) of the definition of the Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date (with
such amount to be allocated first from amounts calculated pursuant to
(A)(i) and (ii) then (iii) of the definition of Subordinated Principal
Distribution Amount);
(2) With respect to the Available Funds for Loan Group 2 and Remaining
Available Funds for Loan Group 1 and Loan Group 3, on each Distribution Date,
the Trustee shall withdraw such Available Funds from the Distribution Account
and apply such funds to distributions on the specified Classes of Group 2
Senior Certificates in the following order and priority and, in each case, to
the extent of such funds remaining:
(i) [Reserved];
(ii) to each interest-bearing Class of Group 2 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated
among such Classes in proportion to the amount of the Class Optimal
Interest Distribution Amount that would have been distributed in the
absence of such shortfall, provided, that on and prior to the Accrual
Termination Date, the Accrual Amount shall be distributed as provided in
clause (iii);
(iii) the Accrual Amount in accordance with the Accretion Directed
Rule;
(iv) to each Class of Group 2 Senior Certificates, concurrently as
follows:
(x) to the Class PO-2 Component an amount allocable
to principal equal to the related PO Formula Principal
Amount, up to the outstanding Component Balance thereof;
and
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(y) the related Non-PO Formula Principal Amount, up
to the amount of the Senior Principal Distribution Amount
for Loan Group 2 for such Distribution Date, will be
distributed, in the following order of priority:
(1) to the Class 2-A-5 Certificates, the Class 2-A-5 Priority Amount,
until its Class Certificate Balance is reduced to zero;
(2) sequentially, to the Class 2-A-1, Class 2-A-2, Class 2-A-3 and
Class 2-A-4 Certificates, in that order, until their respective
Class Certificate Balances are reduced to zero; and
(3) to the Class 2-A-5 Certificates, without regard to the Class 2-A-5
Priority Amount, until its Class Certificate Balance is reduced to
zero;
(v) to the Class PO-2 Component, any related Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant to
clause (A) of the definition of the Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date (with
such amount to be allocated first from amounts calculated pursuant to
(A)(i) and (ii) then (iii) of the definition of Subordinated Principal
Distribution Amount);
(3) With respect to the Available Funds for Loan Group 3 and Remaining
Available Funds for Loan Group 1 and Loan Group 2, on each Distribution Date,
the Trustee shall withdraw such Available Funds from the Distribution Account
and apply such funds to distributions on the specified Classes of Group 3
Senior Certificates in the following order and priority and, in each case, to
the extent of such funds remaining:
(i) [Reserved];
(ii) to each interest-bearing Class of Group 3 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated
among such Classes in proportion to the amount of the Class Optimal
Interest Distribution Amount that would have been distributed in the
absence of such shortfall;
(iii) [Reserved];
(iv) to each Class of Group 3 Senior Certificates, concurrently as
follows:
(x) to the Class PO-3 Component, an amount
allocable to principal equal to the sum of: (a) the
related PO Formula Principal Amount and (b) the related
Remaining PO Supplemental Loan Amount, up to the
outstanding Component Balance thereof; and
(y) the related Non-PO Formula Principal Amount,
up to the amount of the Senior Principal Distribution
Amount for Loan Group 3 for
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such Distribution Date will be distributed, to the
Class 3-A-1 Certificates, until its Class Certificate
Balance is reduced to zero;
(3) [reserved];
(4) On each Distribution Date, Available Funds from all Loan Groups
remaining after making the distributions described in 4.02(a)(1),
4.02(a)(2) and 4.02(a)(3) above, will be distributed to the Subordinated
Certificates and the Class A-R Certificates in the following order and
priority and, in each case, to the extent of such funds remaining:
(A) to the Class M Certificates, an amount allocable
to interest equal to the Class Optimal Interest
Distribution Amount for such 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;
(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;
IV-4
(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;
(6) [Reserved]; and
(7) to the Class A-R Certificates, any remaining funds in the Trust
Fund.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Component Balance of the related Class PO
Component.
On any Distribution Date, to the extent the Amount Available for Senior
Principal for Loan Group 1, the Amount Available for Senior Principal for Loan
Group 2 or the Amount Available for Senior Principal for Loan Group 3, as the
case may be, is insufficient to make the full distribution required to be made
pursuant to clause (a)(1)(iv)(x), (a)(2)(iv)(x) and (a)(3)(iv)(x),
respectively, and clause (a)(4)(i) above, (A) the amount distributable on the
related Class PO Component in respect of principal shall be equal to the
product of (1) the sum of each Amount Available for Senior Principal and (2) a
fraction, the numerator of which is the PO Formula Principal Amount and the
denominator of which is the sum of the PO Formula Principal Amount and the sum
of each Senior Principal Distribution Amount and (B) the amount distributable
on the related Senior Certificates of the related Senior Certificate Group,
other than the related Class PO Component, in respect of principal shall be
equal to the product of (1) the Amount Available for Senior Principal for such
Loan Group and (2) a fraction, the numerator of which is the related Senior
Principal Distribution Amount and the denominator of which is such Senior
Principal Distribution Amount and the related PO Formula Principal Amount.
(b) If two Senior Certificate Groups require payments from
Remaining Available Funds from a Loan Group, the Remaining Available Funds
from that Loan Group available therefor will be allocated pro rata on the
basis of the amount required therefor. If only one Senior Certificate Group
requires payments from Remaining Available Funds from the other Loan Groups,
the Remaining Available Funds from those Loan Groups available therefor will
be contributed pro rata on the basis of the amount required therefor.
(c) On each Distribution Date on or after the Senior Credit
Support Depletion Date, notwithstanding the allocation and priority set forth
in Section 4.02(a)(1)(iv)(y) and (a)(2)(iv)(y), the portion of related
Available Funds available to be distributed as principal of the related Senior
Certificates (other than the Class PO Certificates) shall be distributed
concurrently, as principal, on such Classes, pro rata, on the basis of their
respective Class Certificate Balances, until the Class Certificate Balances
thereof are reduced to zero.
IV-5
On each Distribution Date prior to and including the applicable Accrual
Termination Date with respect to each Class of Accrual Certificates, the
Accrual Amount for such Class and Distribution Date shall not (except as
provided in the second to last sentence in this paragraph) be distributed as
interest with respect to such Class of Accrual Certificates but shall instead
be added to the Class Certificate Balance of such Class on the related
Distribution Date. With respect to any Distribution Date prior to and
including the applicable Accrual Termination Date on which principal payments
on any Class of Accrual Certificates are distributed pursuant to Section
4.02(a)(1)(iii), Section 4.02(a)(2)(iii) or Section 4.02(a)(3)(iii), as
applicable, the related Accrual Amount shall be deemed to have been added on
such Distribution Date to the Class Certificate Balance of such Class of
Accrual Certificates (and included in the amount distributable on the related
Class or Classes of Accretion Directed Certificates pursuant to Section
4.02(a)(1)(iii), Section 4.02(a)(2)(iii) or Section 4.02(a)(3)(iii), as
applicable, for such Distribution Date) and the related distribution thereon
shall be deemed to have been applied concurrently towards the reduction of all
or a portion of the amount so added and, to the extent of any excess, towards
the reduction of the Class Certificate Balance of such Class of Accrual
Certificates immediately prior to such Distribution Date.
(d) On each Distribution Date, the amount referred to in clause
(i) of the definition of Class Optimal Interest Distribution Amount for each
Class of Certificates for such Distribution Date shall be reduced for each
Class of Senior Certificates of a Senior Certificate Group and each Class of
Subordinated Certificates for such Distribution Date shall be reduced with
respect to each Loan Group by (i) the related Class' pro rata share of Net
Prepayment Interest Shortfalls for such Loan Group based (x) with respect to a
Class of Senior Certificates, on the related Class Optimal Interest
Distribution Amount and (y) with respect to a Class of Subordinated
Certificates on and prior to the second Senior Termination Date on the Assumed
Interest Amount or after such second Senior Termination Date, the related
Class Optimal Interest Distribution Amount for such Distribution Date in the
absence of such Net Prepayment Interest Shortfalls, and (ii) the related
Class' Allocable Share of (A) after the Special Hazard Coverage Termination
Date, with respect to each Mortgage Loan in the related Loan Group (or after
the Senior Credit Support Depletion Date, any Mortgage Loan) that became a
Special Hazard Mortgage Loan during the calendar month preceding the month of
such Distribution Date, the excess of one month's interest at the related
Adjusted Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan as of the Due Date in such month over the amount of Liquidation Proceeds
applied as interest on such Mortgage Loan with respect to such month, (B)
after the Bankruptcy Coverage Termination Date, 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 Bankruptcy Loss during the
calendar month preceding the month of such Distribution Date, the interest
portion of the related Debt Service Reduction or Deficient Valuation, (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 and
(D) after the Fraud Loss Coverage Termination Date, with respect to each
Mortgage Loan in the related Loan Group (or after the Senior Credit Support
Depletion Date, any Mortgage Loan) that became a Fraud Loan during the
calendar month preceding the month of such Distribution Date, the excess of
one month's interest at the related Adjusted Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such Mortgage Loan
with respect to such month.
IV-6
(e) Notwithstanding the priority and allocation contained in
Section 4.02(a)(4), if with respect to any Class of Subordinated Certificates
on any Distribution Date the sum of the related Class Subordination
Percentages of such Class and of all Classes of Subordinated Certificates
which have a higher numerical Class designation than such Class (the
"Applicable Credit Support Percentage") is less than the Original Applicable
Credit Support Percentage for such Class, no distribution of Principal
Prepayments will be made to any such Classes (the "Restricted Classes") and
the amount of such Principal Prepayments otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinated
Certificates having lower numerical Class designations than such Class, pro
rata, based on their respective Class Certificate Balances immediately prior
to such Distribution Date and shall be distributed in the sequential order
provided in Section 4.02(a)(5).
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, including Excess Losses, with
respect to the related Distribution Date. For purposes of allocating losses to
the Subordinated Certificates, the Class M Certificates will be deemed to have
a lower numerical class designation, and to be of a higher relative payment
priority, than each other Class of Subordinated Certificates.
Realized Losses with respect to any Distribution Date shall be allocated
as follows:
(i) the applicable PO Percentage of any Realized Loss, including
any Excess Loss, shall be allocated to the Class PO-1 Component, if such
Realized Loss relates to a Loan Group 1 Mortgage Loan until the
Component Balance thereof is reduced to zero to the Class PO-2
Component, if such Realized Loss relates to a Loan Group 2 Mortgage Loan
until the Component Balance thereof is reduced to zero and to the Class
PO-3 Component, if such Realized Loss relates to a Loan Group 3 Mortgage
Loan until the Component Balance thereof is reduced to zero; and
(ii) (1) the applicable Non-PO Percentage of any Realized Loss
(other than an Excess Loss) shall be allocated first to the Subordinated
Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinated Certificates then
outstanding with the highest numerical Class designation) until the
respective Class Certificate Balance of each such Class is reduced to
zero, and second to the Senior Certificates (other than the related
Class X Certificates and the related Class PO Component), pro rata on
the basis of their respective Class Certificate Balances or, in the case
of each Class of Accrual Certificates, on the basis of the lesser of
their Class Certificate Balance and their initial Class Certificate
Balance, in each case immediately prior to the related Distribution Date
until the respective Class Certificate Balance of each such Class is
been reduced to zero; and
(2) the applicable Non-PO Percentage of any Excess Losses on the
Mortgage Loans in a Loan Group shall be allocated to the Classes of
Certificates of the related Senior Certificate Group (other than the
related Class X Certificates and the related Class
IV-7
PO Component) and the Subordinated Certificates then outstanding, pro
rata, on the basis of, with respect to such Senior Certificates, their
respective Class Certificate Balances, or in the case of any Class of
Accrual Certificates, on the basis of the lesser of its Class
Certificate Balance and its initial Class Certificate Balance, in each
case immediately prior to the related Distribution Date and, with
respect to each Class of Subordinated Certificates, the applicable
Assumed Balance for each such Class relating to the Loan Group in which
such Realized Loss occurs; provided, however, on any Distribution Date
after the second Senior Termination Date for a Senior Certificate Group,
such Excess Losses on the Mortgage Loans in the related Loan Group will
be allocated to the Subordinated Certificates on the basis of their
respective initial Class Certificate Balances; and provided further that
after the Senior Credit Support Depletion Date, such Excess Losses shall
be allocated to all Senior Certificates (other than the Class PO
Certificates) regardless of Senior Certificate Group on the basis of
their respective Class Certificate Balances, or in the case of any Class
of Accrual Certificates, on the basis of the lesser of its Class
Certificate Balance and its initial Class Certificate Balance, in each
case immediately prior to the related Distribution Date.
(b) The Class Certificate Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation
shall be reduced on each Distribution Date by the sum of (i) the amount of any
payments on the Class PO Certificates in respect of Class PO Deferred Amounts
and (ii) the amount, if any, by which the aggregate of the Class Certificate
Balances of all outstanding Classes of Certificates (after giving effect to
the distribution of principal and the allocation of Realized Losses and Class
PO Deferred Amounts on such Distribution Date) exceeds the Pool Stated
Principal Balance for the following 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(a) above shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or to any
Component or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 4.04(a) above shall be accomplished by reducing the
Certificate Balance or Component Balance thereof, as applicable, immediately
following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Balance" or "Component
Balance," as the case may be.
(e) [Reserved]
SECTION 4.05. [Reserved]
SECTION 4.06. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall
prepare and cause to be forwarded by first class mail to each
Certificateholder, each Servicer, the Seller, the
IV-8
Depositor and each Rating Agency a statement setting forth with respect to the
related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Class Unpaid
Interest Amounts included in such distribution and any remaining Class
Unpaid Interest Amounts after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such
Distribution Date;
(v) the Pool Stated Principal Balance for the following
Distribution Date;
(vi) the Senior Percentage and Subordinated Percentage for the
following Distribution Date;
(vii) the amount of the Basic Servicing Fees paid to or retained
by each Servicer and Excess Servicing Fees paid to or retained by
Countrywide with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to 30
days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B)
in foreclosure and delinquent (1) 1 to 30 days (2) 31 to 60 days (3) 61
to 90 days and (4) 91 or more days, as of the close of business on the
last day of the calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated
Principal Balance of such Mortgage Loan as of the close of business on
the Determination Date preceding such Distribution Date and the date of
acquisition thereof;
IV-9
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage for the following
Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month;
(xv) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as
of the related Determination Date; and
(xvi) with respect to the second Distribution Date, the number and
aggregate balance of any Delay Delivery Mortgage Loans not delivered
within thirty days after the Closing Date, the Remaining PO Supplemental
Loan Amount and the Remaining Non-PO Supplemental Loan Amount
distributed as principal.
The Trustee may make the above information available to Certificateholders via
the Trustee's website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇.
(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 each 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), each Servicer shall deliver to the Trustee
(which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule V hereto.
(d) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vii)
of this Section 4.06 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in effect.
SECTION 4.07. Determination of Pass-Through Rates for COFI
Certificates.
The Pass-Through Rate for each Class of COFI Certificates for each
Interest Accrual Period after the initial Interest Accrual Period shall be
determined by the Trustee as provided below on the basis of the Index and the
applicable formulae appearing in footnotes corresponding to the COFI
Certificates in the table relating to the Certificates in the Preliminary
Statement.
Except as provided below, with respect to each Interest Accrual Period
following the initial Interest Accrual Period, the Trustee shall not later
than two Business Days following the
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publication of the applicable Index determine the Pass-Through Rate at which
interest shall accrue in respect of the COFI Certificates during the related
Interest Accrual Period.
Except as provided below, the Index to be used in determining the
respective Pass-Through Rates for the COFI Certificates for a particular
Interest Accrual Period shall be COFI for the second calendar month preceding
such Interest Accrual Period. If at the Outside Reference Date for any
Interest Accrual Period, COFI for the second calendar month preceding such
Interest Accrual Period has not been published, the Trustee shall use COFI for
the third calendar month preceding such Interest Accrual Period. If COFI for
neither the second nor third calendar months preceding any Interest Accrual
Period has been published on or before the related Outside Reference Date, the
Index for such Interest Accrual Period and for all subsequent Interest Accrual
Periods shall be the National Cost of Funds Index for the third calendar month
preceding such Interest Accrual Period (or the fourth preceding calendar month
if such National Cost of Funds Index for the third preceding calendar month
has not been published by such Outside Reference Date). In the event that the
National Cost of Funds Index for neither the third nor fourth calendar months
preceding an Interest Accrual Period has been published on or before the
related Outside Reference Date, then for such Interest Accrual Period and for
each succeeding Interest Accrual Period, the Index shall be LIBOR, determined
in the manner set forth below.
On each Interest Determination Date so long as the COFI Certificates are
outstanding and the applicable Index therefor is LIBOR, the Trustee shall
either (i) request each Reference Bank to inform the Trustee of the quotation
offered by its principal London office for making one-month United States
dollar deposits in leading banks in the London interbank market, as of 11:00
a.m. (London time) on such Interest Determination Date or (ii) in lieu of
making any such request, rely on such Reference Bank quotations that appear at
such time on the Reuters Screen LIBO Page (as defined in the International
Swap Dealers Association Inc. Code of Standard Wording, Assumptions and
Provisions for Swaps, 1986 Edition), to the extent available.
With respect to any Interest Accrual Period for which the applicable
Index is LIBOR, LIBOR for such Interest Accrual Period will be established by
the Trustee on the related Interest Determination Date as follows:
(a) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next Interest
Accrual Period shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/32%).
(b) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate per
annum which the Trustee determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/32%) of
the one-month United States dollar lending rates that New York City
banks selected by the Trustee are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two of
the Reference Banks to which such quotations are, in the opinion of the
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Trustee, being so made, or (ii) in the event that the Trustee can
determine no such arithmetic mean, the lowest one-month United States
dollar lending rate which New York City banks selected by the Trustee
are quoting on such Interest Determination Date to leading European
banks.
From such time as the applicable Index becomes LIBOR until all of the
COFI Certificates are paid in full, the Trustee will at all times retain at
least four Reference Banks for the purposes of determining LIBOR with respect
to each interest Determination Date. Countrywide initially shall designate the
Reference Banks. Each "Reference Bank" shall be a leading bank engaged in
transactions in Eurodollar deposits in the international Eurocurrency market,
shall not control, be controlled by, or be under common control with, the
Trustee and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if Countrywide
should terminate its appointment as Reference Bank, the Trustee shall promptly
appoint or cause to be appointed another Reference Bank. The Trustee shall
have no liability or responsibility to any Person for (i) the selection of any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain at least four Reference Banks which is caused by circumstances beyond
its reasonable control.
In determining LIBOR and any Pass-Through Rate for the COFI Certificates
or any Reserve Interest Rate, the Trustee may conclusively rely and shall be
protected in relying upon the offered quotations (whether written, oral or on
the Reuters Screen) from the Reference Banks or the New York City banks as to
LIBOR or the Reserve Interest Rate, as appropriate, in effect from time to
time. The Trustee shall not have any liability or responsibility to any Person
for (i) the Trustee's selection of New York City banks for purposes of
determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from the Reference
Banks or the New York City banks or to determine such arithmetic mean, all as
provided for in this Section 4.07.
The establishment of LIBOR and each Pass-Through Rate for the COFI
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
SECTION 4.08. Determination of Pass-Through Rates for LIBOR
Certificates.
(A) On each Interest Determination Date so long as any LIBOR
Certificates are outstanding, the Trustee will determine LIBOR on the basis of
the British Bankers' Association ("BBA") "Interest Settlement Rate" for
one-month deposits in U.S. dollars as found on Telerate page 3750 as of 11:00
a.m. London time on each LIBOR Determination Date. Interest Settlement Rates
currently are based on rates quoted by sixteen BBA designated banks as being,
in the view of such banks, the offered rate at which deposits are being quoted
to prime banks in the London interbank market. Such Interest Settlement Rates
are calculated by eliminating the four highest rates and the four lowest
rates, averaging the eight remaining rates, carrying the result (expressed as
a percentage) out to six decimal places, and rounding to five decimal places.
"Telerate Page 3750" means the display page currently so designated on the
Bridge Telerate Service (formerly the Dow ▇▇▇▇▇ Markets) (or such other page
as may replace that page on that service for the purpose of displaying
comparable rates or prices).
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(B) If on any Interest Determination Date LIBOR cannot be determined as
provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London
time) on such Interest Determination Date or (ii) in lieu of making any such
request, rely on such Reference Bank quotations that appear at such time on
the Reuters Screen LIBO Page (as defined in the International Swap Dealers
Association Inc. Code of Standard Wording, Assumptions and Provisions for
Swaps, 1986 Edition), to the extent available. LIBOR for the next Interest
Accrual Period will be established by the Trustee on each interest
Determination Date as follows:
(a) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next applicable
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/32%).
(b) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate per
annum which the Trustee determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/32%) of
the one-month United States dollar lending rates that New York City
banks selected by the Trustee are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two of
the Reference Banks to which such quotations are, in the opinion of the
Trustee, being so made, or (ii) in the event that the Trustee can
determine no such arithmetic mean, the lowest one-month United States
dollar lending rate which New York City banks selected by the Trustee
are quoting on such Interest Determination Date to leading European
banks.
(c) If on any Interest Determination Date the Trustee is required
but is unable to determine the Reserve Interest Rate in the manner
provided in paragraph (b) above, LIBOR for the related Classes of
Certificates shall be LIBOR as determined on the preceding applicable
Interest Determination Date.
Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each Interest Determination Date.
Countrywide initially shall designate the Reference Banks. Each "Reference
Bank" shall be a leading bank engaged in transactions in Eurodollar deposits
in the international Eurocurrency market, shall not control, be controlled by,
or be under common control with, the Trustee and shall have an established
place of business in London. If any such Reference Bank should be unwilling or
unable to act as such or if Countrywide should terminate its appointment as
Reference Bank, the Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or responsibility
to any Person for (i) the selection of any Reference Bank for purposes of
determining LIBOR or (ii) any inability to retain at least four Reference
Banks which is caused by circumstances beyond its reasonable control.
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(C) The Pass-Through Rate for each Class of LIBOR Certificates for each
applicable Interest Accrual Period shall be determined by the Trustee on each
Interest Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR Certificates,
any Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered
quotations (whether written, oral or on the Dow ▇▇▇▇▇ Markets) from the BBA
designated banks, the Reference Banks or the New York City banks as to LIBOR,
the Interest Settlement Rate or the Reserve Interest Rate, as appropriate, in
effect from time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee's selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City banks
or to determine such arithmetic mean, all as provided for in this Section
4.08.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if (i) such
Holder has so notified the Trustee at least five Business Days prior to the
related Record Date and (ii) such Holder shall hold (A) a Notional Amount
Certificate, (B) 100% of the Class Certificate Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the countersignature and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless countersigned by the Trustee by manual signature, and
such countersignature upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on
a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.06 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration
of transfer of any
V-1
Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly
executed by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In
the event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer in
substantially the forms set forth in Exhibit J (the "Transferor Certificate")
and (i) deliver a letter in substantially the form of either Exhibit K (the
"Investment Letter") or Exhibit L (the "Rule 144A Letter") or (ii) there shall
be delivered to the Trustee at the expense of the transferor an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and each 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 Seller, the Transferor and each
Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and
V-2
in form and substance satisfactory to the Trustee (in the event such
Certificate is a Private Certificate or 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 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 or Exhibit
Q), to the effect that 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, (ii) in the case of a Certificate that is an ERISA Restricted
Certificate and that has been the subject of an ERISA-Qualifying Underwriting,
if 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
ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of either the Trustee or the Trust Fund,
addressed to the Trustee, to the effect that the purchase and holding of such
ERISA-Restricted Certificate will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code and will not subject the
Trustee to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Private Certificate
or a Residual Certificate, in the event the representation letter referred to
in the preceding sentence is not so furnished, such representation 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 herein, any purported transfer
of an ERISA-Restricted Certificate to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the delivery to the Trustee of an
Opinion of Counsel satisfactory to the Trustee as described above shall be
void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
a Residual Certificate are expressly subject to the following provisions:
V-3
(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) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in
the purported Transferee. If any purported transferee shall become a
Holder of a Residual Certificate in violation of the provisions of this
Section 5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Residual Certificate. The Trustee shall
be under no liability to any Person for any registration of Transfer of
a Residual Certificate that is in fact not permitted by Section 5.02(b)
and this Section 5.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as
the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and either the Rule 144A Letter or the
Investment Letter. The Trustee shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of
V-4
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the Trustee, the Seller, the Transferor or any Servicer, 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.
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, (y) the Depositor at its option
advises the Trustee in writing that it elects to terminate the book-entry
system through the Depository or (z) 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
V-5
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 any 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. Countrywide shall provide the Trustee with an
adequate inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to Countrywide 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.
Each Servicer, the Trustee and any agent of a 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 any
Servicer, the Trustee nor any agent of a Servicer or the Trustee shall be
affected by any notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the
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Trustee shall, within ten Business Days after the receipt of such request,
provide the Depositor, each Servicer or such Certificateholders at such
recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, 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 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.
V-7
ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
SECTION 6.01. Respective Liabilities of the Depositor and the Servicers.
The Depositor and each Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the Servicers.
The Depositor and each Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the United
States or under the laws of one of the states thereof and will each obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of this Agreement, or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor or a Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or that Servicer shall be a party, or any person
succeeding to the business of the Depositor or such Servicer, shall be the
successor of the Depositor or that Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to a Servicer shall
be qualified to service mortgage loans on behalf of, FNMA or FHLMC.
SECTION 6.03. Limitation on Liability of the Depositor, the Seller, the
Transferor, each Servicer and Others.
None of the Depositor, the Seller, the Transferor, any Servicer or any
of the directors, officers, employees or agents of the Depositor, the Seller,
the Transferor or any Servicer 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 Seller, the Transferor, any Servicer or any such Person against
any breach of representations or warranties made by it herein or protect the
Depositor, the Seller, the Transferor, any Servicer 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 Seller, the Transferor, any Servicer and any director, officer,
employee or agent of the Depositor, the Seller, the Transferor or any Servicer
may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Seller, the Transferor, any Servicer and any director,
officer, employee or agent of the Depositor, the Seller, the Transferor and
each Servicer 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
VI-1
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 Seller, the Transferor or any Servicer
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 Seller, the Transferor or any Servicer 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 Seller, the Transferor and any Servicer
shall be entitled to be reimbursed therefor out of the related Certificate
Account.
SECTION 6.04. Limitation on Resignation of Servicers.
No 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 downgrading 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 a 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 Servicer shall have assumed
that Servicer's responsibilities, duties, liabilities and obligations
hereunder.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by a Servicer to deposit in the related
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 that Servicer by the Trustee or
the Depositor or to that 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 a Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of
that Servicer contained in this Agreement, which failure materially
affects the rights of Certificateholders, that failure continues
unremedied for a period of 60 days after the date on which written
notice of such failure shall have been given to that Servicer by the
Trustee or the Depositor, or to that Servicer and the Trustee by the
Holders of Certificates evidencing not less than 25%
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of the Voting Rights evidenced by the Certificates; provided, however,
that the sixty-day cure period shall not apply to the initial delivery
of the Mortgage File for Delay Delivery Mortgage Loans nor the failure
to substitute or repurchase in lieu thereof; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against that Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 consecutive days; or
(iv) a 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 that
Servicer or all or substantially all of the property of that Servicer;
or
(v) a 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.
If an Event of Default described in clauses (i) to (v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, or at the direction of
the Holders of Certificates evidencing not less than 66 2/3% of the Voting
Rights evidenced by the Certificates, the Trustee shall by notice in writing
to the related Servicer (with a copy to each Rating Agency and the other
Servicer), terminate all of the rights and obligations of that Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder. On and after the
receipt by a Servicer of such written notice, all authority and power of that
Servicer hereunder, whether with respect to the Mortgage Loans serviced by
that Servicer or otherwise, shall pass to and be vested in the Trustee. The
preceding sentence notwithstanding, the Trustee, Fifth Third Bank and the
Depositor hereby specifically agree that upon termination of Fifth Third Bank
or upon delivery to the Trustee by Countrywide of a letter signed by Fifth
Third Bank whereunder Fifth Third Bank shall resign as servicer under this
Agreement, the Trustee shall appoint Countrywide or its designee meeting the
requirements of Section 7.02 hereto as successor thereto. If, pursuant to the
provisions hereof, the duties of the Servicer are transferred to a successor,
the entire amount of the Servicing Fee and other compensation payable to the
Servicer pursuant hereto shall thereafter be payable to such successor. The
Trustee shall thereupon make any Advance which that Servicer failed to make
subject to Section 4.01 hereof whether or not the obligations of that Servicer
have been terminated pursuant to this Section. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the related
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 related Mortgage
Loans and related documents, or otherwise. Unless expressly provided in such
written notice, no such termination shall affect any obligation of the related
Servicer to pay amounts owed pursuant to Article VIII. Each Servicer agrees to
cooperate with the Trustee in effecting
VII-2
the termination of that Servicer's respective 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 related Certificate
Account, or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of a Servicer
hereunder, that 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 Servicer's rights and obligations as Servicer
hereunder and received after such notice, that portion thereof to which such
Servicer would have been entitled pursuant to Sections 3.08(a)(i) through
(viii),and any other amounts payable to such Servicer hereunder the
entitlement to which arose prior to the termination of its activities
hereunder.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time a Servicer receives a notice of termination
pursuant to Section 7.01 hereof, the Trustee shall, subject to and to the
extent provided in Section 3.04 and Section 7.01, be the successor to that
Servicer in its capacity as Servicer under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on that
Servicer by the terms and provisions hereof and applicable law including the
obligation to make Advances pursuant to Section 4.01. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans serviced by that Servicer that such Servicer would have been entitled to
charge to the related Certificate Account or Distribution Account if that
Servicer had continued to act hereunder; provided, however, that neither the
Trustee nor any other successor to Countrywide as Servicer shall be entitled
to receive the Excess Servicing Fee. Notwithstanding the foregoing, if the
Trustee has become the successor to a Servicer in accordance with Section 7.01
hereof, the Trustee may, if it shall be unwilling to so act, or shall, if it
is prohibited by applicable law from making Advances pursuant to Section 4.01
hereof or if it is otherwise unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then
current rating of the Certificates by each Rating Agency as the successor to
the related Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of that Servicer hereunder. Any
successor to a Servicer shall be an institution which is a FNMA and FHLMC
approved seller/servicer in good standing, which has a net worth of at least
$15,000,000, and which is willing to service the Mortgage Loans and executes
and delivers to the Depositor and the Trustee an agreement accepting such
delegation and assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
related Servicer (other than liabilities of that Servicer under Section 6.03
hereof incurred prior to termination of that Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; and
provided further that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation
will not be qualified or reduced as a result of such assignment and
delegation. Pending appointment of a successor to the related Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.04 hereof, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of payments on Mortgage
VII-3
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Basic Servicing Fee permitted the
related Servicer hereunder. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Neither the Trustee nor any other successor 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 a Servicer
to deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
Any successor to a Servicer as Servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its
service as Servicer maintain in force the policy or policies that each
Servicer is required to maintain pursuant to Section 3.09.
In connection with the termination or resignation of a Servicer
hereunder, either (i) the successor Servicer, including the Trustee if the
Trustee is acting as successor 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 Servicer shall cooperate with the successor 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 Servicer or (y)
in causing MERS to designate on the MERS(R) System the successor Servicer as
the servicer of such Mortgage Loan. The predecessor Servicer shall file or
cause to be filed any such assignment in the appropriate recording office. The
successor 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 a
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default,
the Trustee shall transmit by mail to all Certificateholders notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
VII-4
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that the Trustee
shall not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) unless an Event of Default known to the Trustee shall have
occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement,
(ii) 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
(iii) 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
(iv) 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;
(v) 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; and
(vi) 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
VIII-1
Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and
the Trustee shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing not less than 25% of the Voting
Rights allocated to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers
hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of
the investment security);
(viii) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof; and
VIII-2
(ix) the Trustee shall be under no obligation to exercise any of
the trusts, rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor, the Transferor, a Servicer or the Seller, as
the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan
or related document or of MERS or the MERS System other than with respect to
the Trustee's execution and counter-signature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or any
Servicer of any funds paid to the Depositor or that Servicer in respect of the
related Mortgage Loans or deposited in or withdrawn from the related
Certificate Account by the Depositor or any 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 each 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 such Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation
or removal of the Trustee hereunder. Without limiting the foregoing, each
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 its pro rata share (based on the
aggregate Stated Principal Balance of the Mortgage Loans serviced by it) for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of
any
VIII-3
accountant, engineer or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage such persons to perform
acts or services hereunder and (C) printing and engraving expenses in
connection with preparing any Definitive Certificates. Except as otherwise
provided herein, the Trustee shall not be entitled to payment or reimbursement
for any routine ongoing expenses incurred by the Trustee in the ordinary
course of its duties as Trustee, Registrar, Tax Matters Person or Paying Agent
hereunder or for any other expenses.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, subject to supervision
or examination by federal or state authority and with a credit rating which
would not cause either of the Rating Agencies to reduce their respective then
current ratings of the Certificates (or having provided such security from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07 hereof. The entity serving as Trustee may
have normal banking and trust relationships with the Depositor and its
affiliates or any Servicer and its affiliates; provided, however, that such
entity cannot be an affiliate of a Servicer other than the Trustee in its role
as successor to the related 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, each
Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a
tax is imposed with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund is located and the imposition of such tax would be
avoided by the appointment of a different trustee, then the Depositor or
Countrywide may remove the Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy
VIII-4
of which instrument shall be delivered to the Trustee, one copy of which shall
be delivered to Countrywide 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 Countrywide, one complete set
to the Trustee so removed and one complete set to the successor so appointed.
Notice of any removal of the Trustee shall be given to each Rating Agency by
the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and Countrywide an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The Depositor, Countrywide and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 hereof and its
appointment shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 8.06 hereof without the execution or
filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
VIII-5
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, Countrywide 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
Countrywide and the Trustee may consider necessary or desirable. If
Countrywide shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of each 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 a
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) Countrywide, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to
any such separate trustee or co-trustee.
VIII-6
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 Countrywide and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC election
is to be made, as set forth in the Preliminary Statement, shall constitute,
and that the conduct of matters relating to such assets shall be such as to
qualify such assets as, a "real estate mortgage investment conduit" as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of any such REMIC
and that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to any such REMIC, containing such information and at the times and in
the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make
or cause to be made elections that such assets be treated as a REMIC on the
federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and when required to be 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,
VIII-7
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax); (f) to the extent that they are
under its control conduct matters relating to such assets at all times that
any Certificates are outstanding so as to maintain the status as a REMIC under
the REMIC Provisions; (g) not knowingly or intentionally take any action or
omit to take any action that would cause the termination of the REMIC status;
(h) pay, from the sources specified in the last paragraph of this Section
8.11, the amount of any federal or state tax, including prohibited transaction
taxes as described below, imposed on any such REMIC prior to its termination
when and as the same shall be due and payable (but such obligation shall not
prevent the Trustee or any other appropriate Person from contesting any such
tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to any such REMIC,
including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at such intervals as may be required by the Code, as may be necessary to
prepare the foregoing returns, schedules, statements or information; and (k)
as and when necessary and appropriate, represent any such REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any such REMIC, and otherwise act on behalf of any such REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims or expenses of the Trustee arising from any
errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of any
REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c)
of the Code, on any contribution to any REMIC hereunder after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, without limitation, any minimum tax imposed upon any REMIC
hereunder pursuant to Sections 23153 and 24874 of the California Revenue and
Taxation Code, if not paid as otherwise provided for herein, such tax shall be
paid by (i) the Trustee, if any such other tax arises out of or results from a
breach by the Trustee of any of its obligations under this Agreement, (ii) any
Servicer, in the case of any such minimum tax, or if such tax arises out of or
VIII-8
results from a breach by that Servicer of any of their obligations under this
Agreement, (iii) the Seller or the Transferor, if any such tax arises out of
or results from the Seller's or the Transferor's respective obligations 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, each Servicer, the Seller or
the Transferor 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. Periodic Filings.
Pursuant to written instructions from the Depositor, the Trustee shall
prepare, execute and file all periodic reports required under the Securities
Exchange Act of 1934 in conformity with the terms of the relief granted to the
Depositor in CWMBS, Inc. (February 3, 1994), a copy of which has been supplied
to the Trustee by the Depositor. In connection with the preparation and filing
of such periodic reports, the Depositor and each Servicer shall timely provide
to the Trustee all material information available to them which is required to
be included in such reports and not known to them to be in the possession of
the Trustee and such other information as the Trustee reasonably may request
from either of them and otherwise reasonably shall cooperate with the Trustee.
The Trustee shall have no liability with respect to any failure to properly
prepare or file such periodic reports resulting from or relating to the
Trustee's inability or failure to obtain any information not resulting from
its own negligence or willful misconduct.
VIII-9
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, each Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase by Countrywide
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 and (ii) the lesser of (x) the appraised value of any
REO Property as determined by the higher of two appraisals completed by two
independent appraisers selected by Countrywide at the expense of Countrywide
and (y) the Stated Principal Balance of each Mortgage Loan related to any REO
Property, in each case 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 hereof and (ii) the Latest Possible Maturity Date.
Countrywide 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 Countrywide determines
that the customary and reasonable costs and expenses incurred in the
performance of Countrywide of its servicing obligations hereunder exceed the
benefits accruing to Countrywide; provided, however, that in no event shall
Countrywide exercise its 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 before 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 sum of the aggregate Initial Cut-off Date Principal
Balance of the Initial Mortgage Loans and the Supplemental Loan Amount on the
Closing Date.
SECTION 9.02. Final Distribution on the Certificates.
If on any Determination Date, Countrywide determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the related Certificate Account, Countrywide shall
direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If Countrywide 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, Countrywide shall notify the
Depositor and the Trustee of the date Countrywide intends to terminate the
Trust Fund and of the applicable repurchase price of the Mortgage Loans and
REO Properties.
IX-1
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 15th day
and no later than the 10th day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. Countrywide will give such
notice to each Rating Agency at the time such notice is given to
Certificateholders.
In the event such notice is given, each Servicer shall cause all funds
in the related Certificate Account to be remitted to the Trustee for deposit
in the Distribution Account on 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 Countrywide the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case
on the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, the Certificate Balance thereof plus (a) accrued
interest thereon (or on their Notional Amount, if applicable) in the case of
an interest bearing Certificate and (b) any Class PO Deferred Amounts in the
case of Class PO Certificates, and (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account (other
than the amounts retained to meet claims) after application pursuant to clause
(i) above.
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
hereto.
SECTION 9.03. Additional Termination Requirements.
(a) In the event Countrywide 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
IX-2
Countrywide, to the effect that the failure to comply with the requirements of
this Section 9.03 will not (i) result in the imposition of taxes on
"prohibited transactions" on any REMIC as defined in section 860F of the Code,
or (ii) cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by Countrywide under Section 9.02, Countrywide
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 Countrywide for cash in accordance with Section 9.01.
(b) The Trustee as agent for any REMIC hereby agrees to adopt and
sign such a plan of complete liquidation upon the written request of
Countrywide, 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 Countrywide.
(c) By their acceptance of the Certificates, the Holders thereof
hereby authorize Countrywide to prepare and the Trustee to adopt and sign a
plan of complete liquidation.
IX-3
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicers and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective provision
herein or to supplement any provision herein which may be inconsistent with
any other provision herein, (iii) to add to the duties of the Depositor, the
Seller, the Transferor or any Servicer, (iv) to add any other provisions with
respect to matters or questions arising hereunder or (v) 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 (iv) or (v) above
shall not, as evidenced by an Opinion of Counsel (which Opinion of Counsel
shall not be an expense of the Trustee or the Trust Fund), adversely affect in
any material respect the interests of any Certificateholder; provided,
however, that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating.
Notwithstanding the foregoing, no amendment that significantly changes the
permitted activities of the trust created by this Agreement may be made
without the consent of a Majority in Interest of each Class of Certificates
affected by such amendment. The Trustee, the Depositor and each 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 Servicer and the Trustee with the consent of the Holders of a Majority in
Interest of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required
to be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner
X-1
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%, 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 Countrywide at its expense, but
only upon direction by the Trustee accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE
X-2
OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND
THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance of
the (i) of the Mortgage Loans by the Seller 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 the Seller or Depositor, as the case may be, or if for any other
reason this Agreement or any Supplemental Transfer Agreement is held or deemed
to create a security interest in either such assets, then (i) this Agreement
shall be deemed to be a security agreement (within the meaning of the Uniform
Commercial Code of the State of New York) with respect to all such assets and
security interests and (ii) the conveyances provided for in this Agreement or
any Supplemental Transfer Agreement shall be deemed to be an assignment and a
grant pursuant to the terms of this Agreement (i) by the Seller to the
Depositor or (ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets that
constitute the Trust Fund, whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Trust Fund, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. The Depositor
shall arrange for filing any Uniform Commercial Code continuation statements
in connection with any security interest granted or assigned to the Trustee
for the benefit of the Certificateholders.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of a Servicer or the Trustee and
the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final payment to Certificateholders; and
6. Any rating action involving the long-term credit rating of a Servicer
, which notice shall be made by first-class mail within two Business Days
after the Trustee gains actual knowledge thereof.
X-3
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.16;
3. Each annual independent public accountants' servicing report
described in Section 3.17; and
4. Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered by first
class mail, by courier or by facsimile transmission to (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 the Trustee, The
Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Mortgage-Backed Securities Group, CWMBS,
Inc. Series 2001-19, or such other address as the Trustee may hereafter
furnish to the Depositor or Servicer, (d) in the case of Fifth Third Bank,
Fifth Third Bank, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, (e) in the case of the Transferor, Fifth Third Mortgage
Company, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn:
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President, and (f) in the case of the Rating Agencies,
the address specified therefor in the definition corresponding to the name of
such Rating Agency. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid, to their respective addresses appearing
in the Certificate Register.
SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by any Servicer
without the prior written consent of the other Servicer, the Trustee and
Depositor, which shall not be unreasonably withheld.
X-4
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 10.08, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 10.09. Inspection and Audit Rights.
Each 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 that Servicer's normal business hours, to examine all
the books of account, records, reports and other papers of that Servicer
relating to the Mortgage Loans serviced by it, 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
each 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
X-5
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
related Servicer or the related Subservicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificate-holders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof
by the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 10.11. [Reserved].
SECTION 10.12. Protection of Assets.
(a) Except for transactions and activities entered into in
connection with the securitization that is the subject of this Agreement, the
Trust Fund created by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
* * * * * *
X-6
IN WITNESS WHEREOF, the Depositor, the Trustee, the Seller, the
Transferor and the Servicers 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.
Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIFTH THIRD MORTGAGE COMPANY
Transferor
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
Seller and a Servicer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
FIFTH THIRD BANK
a Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-IV-1
SCHEDULE II-A
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2001-19
Representations and Warranties of Countrywide as Seller/Servicer
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor
and the Trustee, 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 II 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 Seller and a Servicer, CWMBS,
Inc., as depositor, Fifth Third Bank, as a Servicer, Fifth Third Mortgage
Company, as Transferor, and The Bank of New York, as trustee.
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 ensure its
ability to enforce each Countrywide Mortgage Loan, to service the
Countrywide Mortgage Loans in accordance with the terms of the Pooling
and Servicing Agreement and to perform any of its other obligations
under the Pooling and Servicing Agreement in accordance with the terms
thereof.
Countrywide has the full corporate power and authority to
sell and service 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.
The execution and delivery of the Pooling and Servicing
Agreement by Countrywide, the sale and servicing of the Countrywide
Mortgage Loans by Countrywide under the Pooling and Servicing Agreement,
the consummation of any other of the transactions contemplated by the
Pooling and Servicing Agreement, and the fulfillment of or compliance
with the terms thereof are in the ordinary course of business of
Countrywide and will not (A) result in a material breach of any term or
provision of the charter or by-laws of Countrywide or (B) materially
conflict with, result in a material breach, violation or acceleration
of, or result in a material default under, the terms of any
S-II-1
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.
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.
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 or
service the Countrywide Mortgage Loans or to perform any of its other
obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
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.
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.
The Servicer 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 Countrywide Mortgage Loans for
as long as such Countrywide Mortgage Loans are registered with MERS.
S-II-2
SCHEDULE II-B-1
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2001-19
Representations and Warranties of Fifth Third Mortgage Company as Transferor
Fifth Third Mortgage Company (the "Company") hereby makes the
representations and warranties set forth in this Schedule II-B-1 to the
Depositor and the Trustee, as of the Closing Date, or if so specified herein,
as of the Cut-off Date. For the purposes of this Schedule II-B-1 only, the
term "Purchaser" shall mean Countrywide Home Loans, Inc., in its capacity as
purchaser pursuant to that certain Mortgage Loan Purchase and Servicing
Agreement, dated as of August 20, 2001, among Fifth Third Bank, as servicer,
Fifth Third Mortgage Company, as seller, and Countrywide Home Loans, Inc., as
purchaser. Capitalized terms used but not otherwise defined in this Schedule
II-B-1 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 Seller and a
Servicer, CWMBS, Inc., as depositor, Fifth Third Bank, as a Servicer, Fifth
Third Mortgage Company, as Transferor, and The Bank of New York, as trustee.
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and is
qualified to transact business in and is in good standing under the laws of
each state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification, and no demand for such
qualification has been made upon the Company by any state having jurisdiction
and in any event the Company is or will be in compliance with the laws of any
such state to the extent necessary to insure the enforceability of each
Mortgage Note and the sale of the Mortgage Loan as contemplated by this
Agreement;
(b) The Company has the full power and authority to perform, and
to enter into and consummate, all transactions contemplated by this Agreement.
The Company has the full power and authority to hold each Mortgage Loan and to
sell each Mortgage Loan;
(c) Neither the acquisition or origination of the Mortgage Loans
by the Company, the sale of the Mortgage Loans to the Purchaser, the
consummation of the transactions contemplated hereby, nor the fulfillment of
or compliance with the terms and conditions of this Agreement, will conflict
with or result in a breach of any of the terms, conditions or provisions of
the Company's certificate of incorporation or bylaws or result in a material
breach of any legal restriction or any agreement or instrument to which the
Company is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any law, rule, regulation, order, judgment or decree to which
the Company or its property is subject;
(d) The Company is an approved seller and servicer for the
agencies, and is in good standing with each such agency, and the Company is a
mortgagee approved by the Secretary of HUD. No event has occurred, including
but not limited to, a change in insurance coverage, which would make the
Company unable to comply with ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or
S-II-3
HUD eligibility requirements or which would require notification to the
agencies or HUD. To the extent any Mortgage Loan is registered with the MERS
System as of the Closing Date, the Company is a member of MERS in good
standing and has complied with the rules and procedures of MERS in connection
with the Servicing of such Mortgage Loans;
(e) The Company does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Agreement;
(f) There is no action, suit, proceeding, claim, investigation or
litigation pending or, to the best of the Company's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely
to the Company, would adversely affect the sale of the Mortgage Loans to the
Purchaser, or the Company's ability to perform its obligations under this
Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with this Agreement
or the terms of the Mortgage Loans, the delivery of the Mortgage Files to the
Trustee, the sale of the Mortgage Loans to the Trustee or the consummation of
the transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the Closing Date;
and
(h) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Company, and the
transfer, assignment [and conveyance of the Mortgage Notes and the Mortgages
by the Company pursuant to this Agreement are not subject to the bulk transfer
or any similar statutory provisions in effect and applicable to this
transaction.
S-II-4
SCHEDULE II-B-2
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2001-19
Representations and Warranties of Fifth Third Bank as Servicer
Fifth Third Bank ("Fifth Third") hereby makes the representations and
warranties set forth in this Schedule II-B-2 in the Depositor and the Trustee,
as of the Closing Date, if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-B-2 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 Seller and a Servicer, CWMBS, Inc., as
depositor, Fifth Third Bank, as a Servicer, Fifth Third Mortgage Company, as
Transferor, and the Bank of New York, as Trustee.
(1) Fifth Third is duly organized as an Ohio banking
corporation and is validly existing and in good standing under the laws
of the State of Ohio and is duly authorized and qualified to transact
any and all business contemplated by the Pooling and Servicing Agreement
to be conducted by fifth Third 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 ensure
its ability to enforce each Fifth Third Mortgage Loan to service the
Fifth Third Mortgage Loans in accordance with the terms of the Pooling
and Servicing Agreement, and to perform any of its other obligations
under the Pooling and Servicing Agreement in accordance with the terms
thereof.
(2) Fifth Third has the full corporate power and authority
to sell and service each Fifth Third 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 Fifth Third
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 Fifth
Third, enforceable against Fifth Third 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 Fifth Third, the servicing of the Fifth Third Mortgage Loan
by Fifth Third 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 Fifth
Third and will not (A) result in a material breach of any term or
provision of the charter or by-laws of Fifth Third and 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
S-II-1
material agreement or instrument to which Fifth Third is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to Fifth Third of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Fifth Third of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Fifth Third; and Fifth Third 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 Fifth Third's
ability to perform or meet any of its obligations under the Pooling and
Servicing Agreement.
(4) Fifth Third 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 Fifth
Third's knowledge, threatened, against Fifth Third that would materially
and adversely affect the execution, delivery or enforceability of the
Pooling and Servicing Agreement or the ability of Fifth Third to sell or
service the Fifth Third 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 Fifth Third of, or compliance by Fifth Third
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, Fifth Third has obtained the same.
(7) Fifth Third 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 Fifth Third Mortgage
Loans for as long as such Fifth Third Mortgage Loans are registered with
MERS.
S-II-2
SCHEDULE III-A
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2001-19
Representations and Warranties as to the Countrywide Mortgage Loans
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III-A with respect
to the Countrywide Mortgage Loans to the Depositor and the Trustee, as of the
Closing Date, or if so specified herein, with respect to the Initial Mortgage
Loans as of the Initial Cut-off Date and with respect to the Supplemental
Mortgage Loans, as of the Supplemental Transfer 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, Countrywide, as
Seller and a Servicer, CWMBS, Inc., as depositor, Fifth Third Bank, as a
Servicer, Fifth Third Mortgage Company, as Transferor, and The Bank of New
York, as trustee.
(1) The information set forth on Schedule I-A to the
Pooling and Servicing Agreement with respect to each Countrywide
Mortgage Loan is true and correct in all material respects as of
the Closing Date.
(2) As of the Closing Date, all payments due with
respect to each Initial Mortgage Loan prior to the Initial Cut-off
Date have been made; and as of the Initial Cut-off Date, no
Initial Mortgage Loan has been contractually delinquent for 30 or
more days during the twelve months prior to the Initial Cut-off
Date. As of each Supplemental Transfer Date, all payments due with
respect to each related Supplemental Countrywide Mortgage Loan
prior to the related Supplemental Cut-off Date will have been
made; and as of each Supplemental Cut-off Date, no related
Supplemental Countrywide Mortgage Loan will have been
contractually delinquent for 30 or more days during the twelve
months prior to that Supplemental Cut-off Date.
(3) No Countrywide Mortgage Loan had a Loan-to-Value
Ratio at origination in excess of 95%.
(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 Countrywide 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.
S-III-1
(5) Immediately prior to the assignment of each
Countrywide Mortgage Loan to the Depositor, Countrywide, as
Seller, 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.
(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.
(9) As of the Closing Date with respect to the Initial
Mortgage Loans and as of the Supplemental Transfer Date with
respect to the Supplemental Countrywide Mortgage Loans, to the
best of Countrywide, as Seller's knowledge, each Mortgaged
Property is free of material damage and in good repair.
(10) Each Countrywide Mortgage Loan at origination
complied in all material respects with applicable state and
federal laws, including, without limitation, usury, equal credit
opportunity, 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 in the case of the Initial
Mortgage Loans and as of the related Supplemental Transfer Date
with respect to the Supplemental Countrywide Mortgage Loans,
neither Countrywide, as Seller, nor any prior holder of any
Mortgage has modified the Mortgage in any material respect (except
that a Countrywide Mortgage Loan may have been modified by a
written instrument which has been recorded or submitted for
recordation, if necessary, to protect the interests of the
Certificateholders and the original or a copy of which has been
delivered to the Trustee); satisfied, cancelled or subordinated
such Mortgage in whole or in part; released the related Mortgaged
Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(12) A lender's policy of title insurance together
with a condominium endorsement and extended coverage endorsement,
if applicable, in an amount at least equal to the Cut-off Date
Stated Principal Balance of each such Countrywide Mortgage Loan or
a commitment (binder) to issue the same was effective on the date
of the origination of each Countrywide Mortgage Loan, each such
policy is valid and remains in
S-III-2
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, as Seller, and successor owners of indebtedness
secured by the insured Mortgage, as to the first priority lien of
the Mortgage subject to the exceptions set forth in paragraph (4)
above; to the best of Countrywide, as Seller's knowledge, no
claims have been made under such mortgage title insurance policy
and no prior holder of the related Mortgage, including
Countrywide, as Seller,, has done, by act or omission, anything
which would impair the coverage of such mortgage title insurance
policy.
(13) Each Countrywide 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, as Seller'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, as Seller'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, as Seller's knowledge, all
inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate authorities, unless the lack thereof would not have a
material adverse effect on the value of such Mortgaged Property,
and the Mortgaged Property is lawfully occupied under applicable
law.
(16) The Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of
the maker thereof, enforceable in accordance with its terms and
under applicable law. To the best of Countrywide, as Seller'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 Countrywide Mortgage Loan
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
Countrywide 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
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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, as Seller, have been capitalized under the
Mortgage or the related Mortgage Note.
(22) The origination, underwriting and collection
practices used by Countrywide, as Seller, with respect to each
Countrywide 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 Countrywide Mortgage Loan has a shared
appreciation feature, or other contingent interest feature.
(25) Each Countrywide Mortgage Loan contains a
customary "due on sale" clause.
(26) None of the Countrywide Mortgage Loans provide
for a prepayment penalty.
(27) Each Countrywide Mortgage Loan which had a
Loan-to-Value Ratio at origination in excess of 80% is the subject
of a Primary Insurance Policy that insures that portion of the
principal balance equal to a specified percentage times the sum of
the remaining principal balance of the related Countrywide
Mortgage Loan, the accrued interest thereon and the related
foreclosure expenses. The specified percentage is either 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 97.00% and 35% for
Loan-to-Value Ratios between 97.01% and 100%. 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
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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(c) of the Pooling and
Servicing Agreement. The Mortgage Rate for each Countrywide
Mortgage Loan is net of any such insurance premium.
(28) At the related Cut-off 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 Countrywide Mortgage Loan or (ii) the greater of (a)
the outstanding principal balance of the Countrywide 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, as Seller,
or the original mortgagee, and its successors in interest, as
mortgagee, and Countrywide, as Seller, has received no notice that
any premiums due and payable thereon have not been paid; the
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
(29) If the Mortgaged Property is in an area
identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, a flood
insurance policy in a form meeting the requirements of the current
guidelines of the Flood Insurance Administration is in effect with
respect to such Mortgaged Property with a generally acceptable
carrier in an amount representing coverage not less than the least
of (A) the original outstanding principal balance of the
Countrywide 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, as Seller'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, as Seller'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, as Seller, has not waived
any default, breach, violation or event of acceleration.
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(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 Seller's knowledge,
does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(33) Each Countrywide Mortgage Loan is being serviced
by Countrywide, as 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 Countrywide Mortgage Loan Schedule. The
consolidated principal amount does not exceed the original
principal amount of the Countrywide Mortgage Loan. The Mortgage
Note does not permit or obligate Countrywide, as 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, Countrywide, as
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 Countrywide Mortgage Loan was underwritten
in all material respects in accordance with Countrywide, as
Seller's underwriting guidelines as set forth in the Prospectus
Supplement.
(37) Other than with respect to any Streamlined
Documentation Countrywide Mortgage Loan as to which the
loan-to-value ratio of the related Original Countrywide Mortgage
Loan was less than 90% at the time of the origination of such
Original Countrywide Mortgage Loan, prior to the approval of the
Countrywide Mortgage Loan application, an appraisal of the related
Mortgaged Property was obtained from a qualified appraiser, duly
appointed by the originator, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the
approval or disapproval of the Countrywide Mortgage Loan; such
appraisal is in a form acceptable to FNMA and FHLMC.
(38) None of the Initial Mortgage Loans is a graduated
payment mortgage loan or a growing equity mortgage loan, and none
of the Initial Mortgage Loans are subject to a buydown or similar
arrangement.
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(39) Any leasehold estate securing a Countrywide
Mortgage Loan has a term of not less than five years in excess of
the term of the related Countrywide Mortgage Loan.
(40) The Countrywide Mortgage Loans were selected from
among the outstanding fixed-rate one- to four-family mortgage
loans in Countrywide's portfolio at the Closing Date as to which
the representations and warranties made as to the Countrywide
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 643 Countrywide Mortgage Loans, each
Countrywide Mortgage Loan has a payment date on or before the Due
Date in the month of the first Distribution Date.
(42) With respect to any Countrywide 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
Countrywide Mortgage Loan is subsequently in default, the
enforcement of such Countrywide 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.
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SCHEDULE III-B
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2001-19
Representations and Warranties as to the Fifth Third Mortgage Loans
Fifth Third Mortgage Company and Countrywide Home Loans, Inc. (with
respect to this Schedule III-B, each, a "Representing party") each hereby
makes the representations and warranties et forth in this Schedule III-B with
respect to the Fifth Third Mortgage Loans to the Depositor and the Trustee,
(i) in the case of Fifth Third Mortgage Company, as of August 20, 2001, or if
so specified herein, as of the Cut-off Date or (ii) in the case of Countrywide
Home Loans, Inc., as of August 30, 2001, or of so specified herein, as of
August 21, 2001. For purposes of this Schedule III-B only, the term "Closing
Date" shall mean, with respect to Fifth third Mortgage company, August 20,
2001 and, with respect to countrywide Home Loans, Inc, August 30, 2001.
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,
Countrywide Home Loans, Inc., as Seller and a Servicer, CWMBS, Inc., as
depositor, Fifth Third Bank, as a Servicer, Fifth third Mortgage Company, as
Transferor, and The Bank of New York, as trustee.
(a) The information set forth in Schedule I-B of the Mortgage Loan
Schedule and in each Mortgage File relating to a Fifth Third Mortgage Loan is
complete, true and correct;
(b) All payments required under the terms of the Mortgage Note to be
made on or prior to the Closing Date have been made; the Representing Party
has not advanced funds, or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required under the Mortgage Loan; and there has been no delinquency of thirty
(30) days or more in any payment by the Mortgagor thereunder during the last
twelve 912) months. To the best of the Representing Party's knowledge, no
Mortgage Loan is subject to any pending foreclosure, bankruptcy, insolvency,
or reorganization proceeding and none of the Mortgagors is deceased;
(c) To the best of the Representing Party's knowledge, there are no
delinquent taxes, water charges, sewer rents, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments, or
other outstanding charges affecting the related Mortgaged Property;
(d) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which are in the Mortgage File and have been or will be recorded,
if necessary to protect the interests of the Trustee, and which have been
delivered to the Trustee, all in accordance with the Pooling and Servicing
Agreement. The substance of any such waiver, alteration or modification has
been approved by the primary mortgage guaranty insurer, if any, and by the
title insurer, to the extent
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required by the related policy, and its terms are reflected on the Mortgage
Loan Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage
insurer, if any, and title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage File and the terms of which
are reflected in the Mortgage Loan Schedule, fi executed prior to the Closing
Date;
(e) The Mortgage Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(f) All buildings upon, or comprising part of, the Mortgaged Property
are insured by an insurer acceptable to the Agencies against loss by fire,
hazards of extended coverage and such other hazards as are customary in the
area where the Mortgaged Property is located, and such insurer is licensed to
do business in the state where the Mortgaged Property is located. All such
insurance policies (collectively, the "hazard insurance policy") contain a
standard mortgagee clause naming Fifth Third Mortgage Company, its successors
and assigns as mortgagee and all premiums thereon have been paid. If upon
origination of the Mortgage Loan, the Mortgaged Property was, or was
subsequently deemed to be, in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available), which require under applicable
law that a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration (or any successor thereto)
be obtained, such flood insurance policy is in effect which policy conforms to
the requirements of the Agencies. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at Mortgagor's cost and expense and,
on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at Mortgagor's cost and expense and to obtain
reimbursement therefor from the Mortgagor. Each Mortgage Loan has in place a
fully-paid life of loan flood certification from a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
approved vendor, assigned in case of the Representing Party, which provides
for notification to the Representing Party of changes in designated flood
areas which would affect such Mortgage Loan, and each Mortgage Loan is covered
by a flood map tracking system which identifies changes in designated flood
areas;
(g) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate settlement
procedures including, without limitation, the Real Estate Settlement
Procedures Act of 1974, as amended, consumer credit and privacy protection,
equal credit opportunity or disclosure laws applicable to the Mortgage Loan
have been complied with in all material respects;
(h) The Mortgage has not been satisfied, canceled, subordinated, or
rescinded, in whole or in part, and the Mortgaged Property, in whole or part,
has not been released from the lien of the Mortgage, nor has any instrument
been executed that would effect any such release, cancellation, subordination
or rescission;
S-III-9
(i) The Mortgage is a valid, existing and enforceable first lien on the
Mortgaged Property, including all improvements on the Mortgaged Property, if
any, subject only to (a) the lien of current real property taxes and
assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record
as of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and which do not adversely
affect the Appraised Value (as defined in clause (i) of such definition) of
the Mortgaged Property, 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 the Mortgage or the use, enjoyment, value
or marketability of the related Mortgaged Property, Fifth third Mortgage
Company has full right to sell and assign the Mortgage to the Trustee;
(j) The Mortgage note and the related Mortgage are genuine and each is
the legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or reorganization;
(k) All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan transaction and to execute and
deliver the Mortgage note and the Mortgage, and the Mortgage Note and the
Mortgage have been duly and properly executed by such parties;
(l) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage;
(m) The Representing Party is the sole owner and holder of the Mortgage
Loan and the related Servicing rights and is the custodian of the related
Escrow Account, if applicable. the Mortgage Loan has neither been assigned nor
pledged, and the Representing Party has good and marketable title thereto, and
has full right to transfer and sell the Mortgage Loan to the Trustee free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan to the Trustee pursuant to the terms of this Agreement;
(n) [Intentionally left blank];
(o) The Mortgage Loan is insured by an ALTA lender's title insurance
policy or title opinion acceptable to the Agencies, issued by a title insurer
or other entity acceptable to the Agencies and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in (i)(a) and (b) above) Fifth Third Mortgage Company,
its successors and assigns as to the first priority lien of the Mortgage in
the original principal amount of the Mortgage Loan and against any loss by
reason of the invalidity or unenforceability of the lien resulting from the
provisions of the Mortgage Note and/or
S-III-10
Mortgage providing for adjustment in the Mortgage Interest Rate and Monthly
Payment. Additionally, such lender's title insurance policy or title opinion
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Representing Party is the
sole insured of such lender's title insurance policy or title opinion, and
such lender's title insurance policy or title opinion is in full force and
effect and will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under
such lender's title insurance policy or title opinion, and no prior holder of
the related Mortgage, including the Representing Party, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy or title opinion;
(p) There is no default, breach, violation or event of acceleration
existing under the Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, and
the Representing Party has not waived any default, breach, violation or event
of acceleration;
(q) As of the date of origination, there were no mechanics' or similar
liens or claims which have been filed for work, labor or material (and no
rights are outstanding that under law could give rise to such lien) affecting
the related Mortgaged Property which were or may be liens prior to or equal
with, the lien of the related Mortgage, and, as of the Closing Date, to the
best of the Representing party's knowledge, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and no
rights are outstanding that under law could give rise to such lien) affecting
the related Mortgaged Property which are or may be liens prior to or equal
with, the lien of the related Mortgage;
(r) As of the date of the origination, all improvements which were
considered in determining the Appraised Value (as defined in clause (i) of
said definition) of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged Property;
(s) The Mortgage Loan was originated (within the meaning of Section
3(a)(41) of the Securities Exchange Act of 1934) by Fifth Third Mortgage
Company or by a ▇▇▇▇▇▇ ▇▇▇ approved or ▇▇▇▇▇▇▇ Mac approved mortgage banker
(which mortgage banker is a mortgagee approved by HUD), or savings and loan
association, a savings bank, a commercial bank or similar institution which is
supervised and examined by a federal or state authority, or by another
mortgagee approved by the Secretary of HUD;
(t) The origination, servicing and collection practices with respect to
each Mortgage Note and Mortgage including, without limitation, the
establishment, maintenance and servicing of the Escrow Accounts and Escrow
Payments, if any, since origination, have been conducted in all respects in
accordance with the terms of the Mortgage note and in compliance with all
applicable laws and regulations and, unless otherwise required by law or
▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ Mac standard, in accordance with the proper, prudent and
customary practices in the mortgage origination and servicing business. With
respect to the Escrow Accounts and Escrow Payments, if any, all such payments
are in the possession or under the control of fifth Third Mortgage
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Company and there exists no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. No escrow
deposits or Escrow Payments or other charges or payments due the representing
Party have been capitalized under any Mortgage or the related Mortgage Note.
any interest required to be paid pursuant to state and local law has been
properly paid and credited. All Mortgage Interest Rate adjustments have been
made in strict compliance with state and federal law and the terms of the
related Mortgage Note;
(u) As of the date of origination, the Mortgaged Property was free of
material damage and waste and there was no proceeding pending for the total or
partial condemnation thereof, and, as of the Closing Date, to the best of the
Representing Party's knowledge, the Mortgaged Property is free of material
damage and waste and there is not proceeding pending for the total or partial
condemnation thereof;
(v) The Mortgage and the Mortgage Note contain customary and enforceable
provisions to render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security intended to be provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise
by judicial foreclosure. There is no other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged Property
at a trustee's sale or the right to foreclose the Mortgage. The Mortgagor has
not notified the Representing Party and the Representing Party has no
knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers and Sailors Civil Relief Act of 1940;
(w) The Mortgage Note is not and has not been secured by any collateral
except the lien of the applicable Mortgage on the Mortgaged Property;
(x) The Mortgage File contains an appraisal of the related Mortgaged
Property signed prior to the approval of the Mortgage Loan application by an
appraiser who (i) meets the minimum requisite qualifications of the Agencies
for appraisers, (ii) was duly appointed by the originator, (iii) had no
interest, direct or indirect, in the Mortgaged Property or in any loan made on
the security thereof, and (iv) whose compensation is not affected by the
approval of disapproval of the Mortgage Loan; the appraisal is in a form
acceptable to the Agencies, with such riders as are acceptable to the
Agencies; such appraisal was conducted in compliance with all applicable laws
and regulations and in accordance with the proper, prudent and customary
practices in the appraisal business and represents the fair market value of
the Mortgaged Property at the time of origination of the related Mortgage
Loan;
(y) In the event the Mortgage constitutes a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or expenses are or will become payable by the Trustee to the trustee under the
deed of trust, except in connection with a trustee's sale after default by the
Mortgagor;
(z) No Mortgage Loan contains a permanent or temporary "buydown"
provision;
S-III-12
(aa) the Mortgagor has executed one or more statements to the effect
that the Mortgagor has received all disclosure materials required by
applicable law with respect to the making of the Mortgage Loan. The
Representing Party shall maintain all such statements in the Mortgage File;
(bb) No Mortgage Loan was made in connection with facilitating the
trade-in or exchange of a Mortgaged Property; to the extent any Mortgage Loan
was made in connection with the construction or rehabilitation of a Mortgaged
Property, such construction or rehabilitation is complete;
(cc) Each Mortgage Loan with an LTV at origination greater than 80.00%
is and will be subject to a Primary Mortgage Insurance Policy which provides
coverage in an amount at least equal to that which would be required by the
Agencies if such Mortgage Loan was being delivered for sale to, and
securitization by, each Agency. All provisions of such Primary Mortgage
Insurance Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. Any Mortgage
subject to any such Primary Mortgage Insurance Policy obligates the Mortgagor
thereunder to maintain such insurance and to pay all premiums and charges in
connection therewith. The Mortgage Interest Rate for the Mortgage Loan is
exclusive of any such insurance premium;
(dd) The Mortgaged Property is lawfully occupied under applicable law
and all inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy, have been made or obtained from the appropriate
authorities;
(ee) No action has been taken or failed to be taken, no event has
occurred and no state of facts exists or has existed on or prior to the
Closing Date (whether or not known to the Representing Party on or prior to
such date) which ahs resulted or will result in an exclusion from, denial of,
or defense to coverage under nay Primary Mortgage Insurance Policy (including,
without limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence or fraud of the Representing
Party, the related Mortgagor or any party involved in the application for such
coverage, including the appraisal, plans and specifications and other exhibits
or documents submitted therewith to the insurer under such insurance policy,
or for any other reason under such coverage, but not including the failure of
such insurer to pay by reason of such insurer's breach of such insurance
policy or such insurer's financial inability to pay;
(ff) The Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged
Property is located; with respect to any Mortgage Loan registered with the
MERS System, such registration complies with the rules and procedures of MERS;
(gg) Any future advances made to the Mortgagor prior to the Closing Date
have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The
S-III-13
lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to the Agencies. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan;
(hh) If the Mortgaged Property is a condominium unit or a planned unit
development, such condominium or planned unit development project meets the
eligibility requirements of the Agencies;
(ii) The Mortgage Note and Mortgage are on forms acceptable to either of
the Agencies;
(jj) The Mortgaged Property is located in the state indicated on the
Mortgage Loan Schedule, and consists of a single parcel of real property with
a detached single family residence erected thereon, or a condominium unit, or
a 204 family dwelling or an individual unit in a planned unit development as
defined by ▇▇▇▇▇▇ ▇▇▇, or a manufactured dwelling which meets the requirements
of ▇▇▇▇▇▇ Mae, none of which is a mobile home;
(kk) There are no circumstances or conditions with respect to the
Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage File or the
Mortgagor's credit standing that can reasonably be expected to cause private
institutional investors to regard the Mortgage Loan as an unacceptable
investment, cause the Mortgage Loan to become delinquent, or adversely affect
the value or marketability of the Mortgage Loan;
(ll) The Mortgage contains an enforceable provision for the acceleration
of the payment of the unpaid principal balance of the Mortgage Loan in the
event that the Mortgaged Property is sold or transferred without the prior
written consent of the mortgagee thereunder;
(mm) [Intentionally left blank];
(nn) Each Mortgage Loan is covered by a valid and transferable tax
service contract with a vendor as may be reasonably acceptable to the Trustee;
(oo) Each Mortgage Loan is a fixed rate mortgage loan requiring monthly
payments sufficient to amortize the original principal balance over the
original term set forth in the Mortgage Loan Schedule. No Mortgage Loan has
negatively amortized nor shall any Mortgage Loan have any negative
amortization after the Closing Date. The principal and interest due on each
Mortgage Loan is calculated pursuant to the standard amortization (30/360 day
interest accrual) method;
(pp) Each Mortgage Loan at the time of origination was underwritten to
guidelines which are consistent with an investor-quality mortgage loan and
each such Mortgage Loan is an "A"-type investor quality loan;
(qq) As of the Closing Date, the Representing Party shall have received
neither actual nor constructive notice that a Mortgage Loan will be paid in
full (whether by virtue of a demand statement or otherwise);
S-III-14
(rr) No Mortgage Loan is subject to the Home Ownership and Equity
Protection Act of 1994, as amended;
(ss) No Mortgage Loan contains a provision which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage
loan and the Mortgage Loan does not have a shared appreciation or other
contingent interest feature;
(tt) No Mortgage Loan is an "equity loan" within the meaning of Section
50(a)(6), Article XVI of the Texas Constitution; and
(uu) No error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Representing Party, and, to the best of the Representing Party's knowledge,
any third party, including, without limitation, the Mortgagor, any appraiser,
any builder or developer, or any other third party involved in the origination
of the Mortgage Loan or in the application of any insurance in relation to
such Mortgage Loan; no predatory or deceptive lending practices, including,
without limitation, the extension of credit without regard to the ability of
the borrower to repay and the extension of credit which has no apparent
benefit to the borrower, were employed in the origination of the Mortgage
Loan.
S-III-15
SCHEDULE IV
Principal Balances Schedule
[if applicable]
S-IV-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").]
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates of
this Class : $
CUSIP :
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
A-1
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 Seller, the Servicers, the Transferor 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 Balances
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 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 seller (in such capacity, the "Seller") and as servicer (in
such capacity, a "Servicer"), The Bank of New York, as trustee (the
"Trustee"), Fifth Third Mortgage Company, as transferor (the "Transferor") and
Fifth Third Bank, as servicer (a "Servicer" and together with Countrywide, the
"Servicers"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
A-1
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-2
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.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES UNDER THE CODE
TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _____, 200 . THE
INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS __%. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT OF __% PER ANNUM
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH $_______
OF OID PER $1,000 OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE; THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING THE
ACCRUAL OF OID IS APPROXIMATELY __% (COMPOUNDED MONTHLY); THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD IS $______ PER $1,000 OF THE
ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE COMPUTED USING THE MONTHLY YIELD
AND DAILY COMPOUNDING DURING THE SHORT ACCRUAL PERIOD. NO REPRESENTATION IS
MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE. THE ACTUAL YIELD TO MATURITY MAY DIFFER FROM
THAT SET FORTH ABOVE, AND THE ACCRUAL OF OID WILL BE ADJUSTED, IN ACCORDANCE
WITH SECTION 1272(a)(6) OF THE CODE, TO TAKE INTO ACCOUNT EVENTS WHICH HAVE
OCCURRED DURING ANY ACCRUAL PERIOD. THE PREPAYMENT ASSUMPTION IS INTENDED TO
BE THE PREPAYMENT ASSUMPTION REFERRED TO IN SECTION 1272(a)(6)(B)(iii) OF THE
CODE.]
[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.]
B-1
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE TRUSTEE 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 DELIVERS TO THE
TRUSTEE AN ALTERNATIVE REPRESENTATION 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, 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 Balances
of all Certificates of
this Class : $
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 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 Seller, the Servicers, the Transferor 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 Balances
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 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 seller (in such capacity, the "Seller") and as servicer (in
such capacity, a "Servicer"), The Bank of New York, as trustee (the
"Trustee"), Fifth Third Mortgage Company, as transferor (the "Transferor") and
Fifth Third Bank, as servicer (a "Servicer" and together with Countrywide, the
"Servicers"). 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.
B-3
[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
Seller, the Servicers, the Transferor 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 any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicers, (ii) if 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
Trustee and the Servicers 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 Servicers.
[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, 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.
B-4
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By_____________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
B-6
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[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 SERVICERs UNDER SUCH AGREEMENT.]
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 AN ALTERNATIVE REPRESENTATION 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.
C-1
Certificate No. :
Cut-off Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates of
this Class : $
CUSIP :
CWMBS, INC.
Mortgage Pass-Through Certificates, Series 200____-____
evidencing the distributions allocable to the Class A-R Certificates
with respect to a Trust Fund consisting primarily of a pool of
conventional 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 Seller, the Servicers, the Transferor 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 Balances
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 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 seller (in such capacity, the "Seller") and as servicer (in
such capacity, a "Servicer"), The Bank of New York, as trustee (the
"Trustee"), Fifth Third Mortgage Company, as transferor (the "Transferor") and
Fifth Third Bank, as servicer (a "Servicer" and together with Countrywide, the
"Servicers"). 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.
C-2
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 any such plan, which representation letter
shall not be an expense of the Trustee or the Servicers, or (ii) in the case
of any such Class A-R 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 Servicers to the effect that the
purchase or holding of such Class A-R 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 or the Servicers 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 Servicers. 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
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-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
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES UNDER THE CODE
TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS _____, 200_. THE
INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS __%. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT OF __% PER ANNUM
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH $____ OF
OID ON THE INITIAL POOL STATED PRINCIPAL BALANCE; THE ANNUAL YIELD TO MATURITY
OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING THE ACCRUAL OF OID IS
APPROXIMATELY __% (COMPOUNDED MONTHLY); THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD IS $_____ ON THE INITIAL POOL STATED PRINCIPAL
BALANCE; AND THE METHOD USED TO CALCULATE THE ANNUAL YIELD TO MATURITY AND THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD IS THE EXACT METHOD
AS DEFINED IN PROPOSED TREASURY REGULATIONS. NO REPRESENTATION IS MADE THAT
THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR
AT ANY OTHER RATE. THE ACTUAL YIELD TO MATURITY MAY DIFFER FROM THAT SET FORTH
ABOVE, AND THE ACCRUAL OF OID WILL BE ADJUSTED, IN ACCORDANCE WITH SECTION
1272(a)(6) OF THE CODE, TO TAKE INTO ACCOUNT EVENTS WHICH HAVE OCCURRED DURING
ANY ACCRUAL PERIOD. THE PREPAYMENT ASSUMPTION IS INTENDED TO BE THE PREPAYMENT
ASSUMPTION REFERRED TO IN SECTION 1272(a)(6)(B)(iii) OF THE CODE.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE REPRESENTS TO THE TRUSTEE 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 DELIVERS TO THE
TRUSTEE AN ALTERNATIVE REPRESENTATION 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, 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
D-1
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
D-2
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 :
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 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 Seller, the Servicers, the Transferor 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 Balances
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 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 seller (in such capacity, the "Seller") and as servicer (in
such capacity, a "Servicer"), The Bank of New York, as trustee (the
"Trustee"), Fifth Third Mortgage Company, as transferor (the "Transferor") and
Fifth Third Bank, as servicer (a "Servicer" and together with Countrywide, the
"Servicers"). 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,
D-3
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
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 [Reserved]
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 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Transferor and the Trustee with the
consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of 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.
E-1
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 Seller, the Servicers, the Transferor 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 10% of the aggregate Cut-off Date Principal Balances of the Mortgage
Loans, the Servicers 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.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, ______________________________________________
_____________________________________________________________________________
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number ________________________, or, if mailed by check, to__________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________
_____________________________________________________________________________.
This information is provided by________________________________________,
the assignee named above, or_________________________________________________,
as its agent.
E-3
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary public
in and for said State, personally appeared ___________________________, known
to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
________________________________________
Notary Public
[Notarial Seal]
E-4
EXHIBIT F-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Servicer(s)]
[Seller]
___________________
___________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Servicer,
Fifth Third Mortgage Company as Transferor,
Fifth Third Bank, as Servicer (together with
Countrywide Home Loans, Inc., the "Servicers")
and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached schedule) it has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay
to the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
F-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Initial
Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Initial
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 F-2
FORM OF INITIAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Servicer(s)]
[Seller]
___________________
___________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Servicer,
Fifth Third Mortgage Company as Transferor,
Fifth Third Bank, as Servicer (together with
Countrywide Home Loans, Inc., the "Servicers")
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") and the
Supplemental Transfer Agreement, dated as of [month] ____, 2001, the
undersigned, as Trustee, hereby certifies that, as to each Supplemental
Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Supplemental Mortgage Loan paid in full or listed on the attached schedule) it
has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay
to the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
F-2-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Supplemental
Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Supplemental Mortgage Loan.
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-2-2
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION (INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Servicer(s)]
[Seller]
___________________
___________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Servicer,
Fifth Third Mortgage Company as Transferor,
Fifth Third Bank, as Servicer (together with
Countrywide Home Loans, Inc., the "Servicers")
and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Initial Mortgage Loan listed
on Schedule A attached hereto (other than any Initial Mortgage Loan paid in
full or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if the
original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from the Seller, stating
that the original Mortgage Note was lost or destroyed, together
with a copy of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Initial Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of the MIN of the
Initial Mortgage Loan and language indicating that the Initial
Mortgage Loan is a MOM Loan if the Initial Mortgage Loan is a MOM
Loan,
G-1
with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such
Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2001, without recourse", or, in
the case of each Initial Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage in blank (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from
the insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a
copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or
all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv), as applicable, the Trustee has received, in
lieu thereof, a true and complete copy of such Mortgage and/or such assignment
or assignments of the Mortgage, as applicable, each certified by the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such Initial Mortgage Loan, as the case may be, to be a true and complete copy
of the original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage
G-2
File of any of the Initial Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any
such Mortgage Loan.
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 G-2
FORM OF DELAY DELIVERY CERTIFICATION (SUPPLEMENTAL MORTGAGE
LOANS)
[date]
[Depositor]
[Servicer(s)]
[Seller]
---------------------
---------------------
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Servicer,
Fifth Third Mortgage Company as Transferor,
Fifth Third Bank, as Servicer (together with
Countrywide Home Loans, Inc., the "Servicers")
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 [month] __, 2001
(such date being the related "Supplemental Transfer Date" in accordance with
Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"). The undersigned hereby certifies that, as
to each Delay Delivery Supplemental Mortgage Loan listed on Schedule A
attached hereto (other than any Supplemental Mortgage Loan paid in full or
listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the originator
of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _______________ without recourse", with all
intervening endorsements that show a complete chain of endorsement
from the originator to the Seller, or, if the original Mortgage Note
has been lost or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original Mortgage Note
was lost or destroyed, together with a copy of the related Mortgage
Note;
(ii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Supplemental
G-4
Mortgage Loan that is a MERS Mortgage Loan, the original Mortgage,
noting thereon the presence of the MIN of the Supplemental Mortgage
Loan and language indicating that the Supplemental Mortgage Loan is
a MOM Loan if the Supplemental Mortgage Loan is a MOM Loan, with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2001, without recourse", or, in the
case of each Supplemental Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage Loan,
a duly executed assignment of the Mortgage in blank (each such
assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by the Seller, the
applicable title company, escrow agent or attorney, or the originator of such
Supplemental Mortgage Loan, as the case may be, to be a true and complete copy
of the original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Supplemental Mortgage Loan, and (ii) the information set forth in items (i),
(iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage
Loan Schedule" in Section 1.01 of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
G-5
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Supplemental Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any
such Mortgage Loan.
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-6
EXHIBIT H-1
FORM OF FINAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Servicer(s)]
[Seller]
---------------------
---------------------
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Servicer,
Fifth Third Mortgage Company as Transferor,
Fifth Third Bank, as Servicer (together with
Countrywide Home Loans, Inc., the "Servicers")
and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
--------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the originator
of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _______________ without recourse", with all
intervening endorsements that show a complete chain of endorsement
from the originator to the Seller, or, if the original Mortgage Note
has been lost or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original Mortgage Note
was lost or destroyed, together with a copy of the related Mortgage
Note;
H-1-1
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Initial Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of the MIN of the
Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of
recording indicated thereon, or a copy of the Mortgage certified
by the public recording office in which such Mortgage has been
recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2001, without recourse", or, in
the case of each Initial Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage in blank (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each Initial
Mortgage Loan that is a MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from
the insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a
copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Initial Mortgage Loan that is
not a MERS Mortgage Loan the Seller cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by the Seller, the applicable title company, escrow agent or attorney, or the
originator of such Initial Mortgage Loan, as the case may be, to be a true and
complete copy of the original Mortgage or assignment of Mortgage submitted for
recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the
H-1-2
information set forth in items (i), (iv), (v), (vi), (viii), (xi) and (xiv) of
the definition of the "Mortgage Loan Schedule" in Section 1.01 of the Pooling
and Servicing Agreement accurately reflects information set forth in the
Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
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:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF FINAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Servicer(s)]
[Seller]
---------------------
---------------------
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Servicer,
Fifth Third Mortgage Company as Transferor,
Fifth Third Bank, as Servicer (together with
Countrywide Home Loans, Inc., the "Servicers")
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 Supplemental Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid
in full or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if the
original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from the Seller, stating
that the original Mortgage Note was lost or destroyed, together
with a copy of the related Mortgage Note;
H-2-1
(ii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Supplemental Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of the MIN of the
Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of
recording indicated thereon, or a copy of the Mortgage certified
by the public recording office in which such Mortgage has been
recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2001, without recourse", or, in
the case of each Supplemental Mortgage Loan with respect to
property located in the State of California that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage in blank
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each Supplemental
Mortgage Loan that is a MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from
the insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a
copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Supplemental Mortgage Loan that
is not a MERS Mortgage Loan the Seller cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by the Seller, the applicable title company, escrow agent or attorney, or the
originator of such Supplemental Mortgage Loan, as the case may be, to be a
true and complete copy of the original Mortgage or assignment of Mortgage
submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Supplemental Mortgage Loan, and
H-2-2
(ii) the information set forth in items (i), (iv), (v), (vi), (viii), (xi) and
(xiv) of the definition of the "Mortgage Loan Schedule" in Section 1.01 of the
Pooling and Servicing Agreement accurately reflects information set forth in
the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Supplemental Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any
such Supplemental Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By :
--------------------------
Name:
Title:
H-2-3
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., as seller (in such capacity, the
"Seller") and as servicer (in such capacity, "Servicer"), The Bank of New
York, as Trustee (the "Trustee"), Fifth Third Mortgage Company, transferor
(the "Transferor") and Fifth Third Bank, as servicer (a "Servicer" and
together with Countrywide Homes Loans, Inc., the "Servicers"). Capitalized
terms used, but not defined herein or in Exhibit 1 hereto, shall have the
meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
I-1
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by the provisions of Section 5.02(c) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is . ------------
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee anticipates that it will, so long as it holders the
Class A-R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class A-R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class A-R Certificates that
the Transferee intends to pay taxes associated with holding such Class A-R
Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class A-R
Certificates. The Transferee has provided financial statements or other
financial information requested by
I-2
the Transferor in connection with the transfer of the Class A-R Certificates
to permit the Transferor to assess the financial capability of the Transferee
to pay such taxes. The Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of such a plan.
12. The Transferee is either(i) not an employee benefit plan subject to
Section 406 of ERISA or Section 4975 of the Code, nor a person acting on
behalf of any such plan or using the assets of such plan to effect such
acquisition, or, (ii) the source of funds for the purchase of such Class A-R
Certificate is an "insurance company general account" within the meaning of
Prohibited Transaction Class Exemption 95-60 (PTCE 95-60"), 60 Fed. Reg. 35925
(July 12, 1995), and the terms and conditions of Sections I and III of PTCE
95-60 are applicable to the acquisition and holding of such Class A-R
Certificate.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ___ day of _______________, 20__.
-----------------------------------
PRINT NAME OF TRANSFEREE
By:
--------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
------------------------------
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me to
be the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged that he executed the same as his free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
----- --------- --
-----------------------------------
NOTARY PUBLIC
My Commission expires the
___ day of , 20__
---------
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, an estate whose income from sources without the
United States is includible in gross income for United States federal income
tax purposes regardless of its connection with the conduct of a trade or
business within the United States, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vii) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class A-R Certificate to such Person may cause
the Trust Fund to fail to qualify as a REMIC at any time that certain
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture, bank,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
--------------------------------
(c) Each Person who has or who acquires any Ownership Interest in a
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class A-R Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class A-R Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Class A-R Certificate and (C)
not to Transfer its Ownership Interest in a Class A-R Certificate or to
cause the Transfer of an Ownership Interest in a Class A-R Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Class A-R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Class A-R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Class A-R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class A-R
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter.
I-6
The Trustee shall be entitled but not obligated to recover from any
Holder of a Class A-R Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as
it became other than a Permitted Transferee, all payments made on such
Class A-R Certificate at and after either such time. Any such payments so
recovered by the Trustee shall be paid and delivered by the Trustee to
the last preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Class A-R Certificate to any
Holder who is not a Permitted Transferee.
I-7
EXHIBIT J-1
FORM OF TRANSFEROR CERTIFICATE
---------------------
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
---------------------
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, a representation that 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 that the purchase and holding of
such Certificates are
K-1
covered under Sections I and III of PTCE 95-60, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with
clause (g) below), (f) we have not offered or sold any Certificates to, or
solicited offers to buy any Certificates from, any person, or 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, a representation that 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 that the purchase and holding of
such
L-1
Certificates are covered under Sections I and III of PTCE 95-60, (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold
or otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Securities Act or that would render the disposition of
the Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(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.
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.
L-4
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan 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 under-stands 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 Servicers 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
Seller and Servicers 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 Servicers hereby acknowledges and agrees as follows:
(1) The Servicers 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 Servicers 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 Servicers 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 Servicers
shall at all times be earmarked for the account of the Trustee, and the
Servicers shall keep the Documents and any proceeds separate and
distinct from all other property in the Servicers' possession, custody
or control.
COUNTRYWIDE HOME LOANS, INC.
M-2
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,
2001 among CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Servicer, Fifth Third
Mortgage Company as Transferor, Fifth Third Bank, as
Servicer (together with Countrywide Home Loans, Inc.,
the "Servicers") and The Bank of New York, as
Trustee, Mortgage Pass-Through Certificates, Series
200_-_
-----------------------------------------------------
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.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
N-2
EXHIBIT O
[RESERVED]
O-1
EXHIBIT P
FORM OF SUPPLEMENTAL TRANSFER AGREEMENT
THIS SUPPLEMENTAL TRANSFER AGREEMENT, dated as of ____________, 2001
(this "Supplemental Transfer Agreement"), among CWMBS, INC., a Delaware
corporation, as depositor (the "Depositor"), COUNTRYWIDE HOME LOANS, INC., a
New York corporation, in its capacity as seller under the Pooling and
Servicing Agreement referred to below ( the "Seller"), and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee");
WHEREAS, the Depositor, the Seller, the Trustee and CHL, as a
Servicer, Fifth Third Mortgage Company, as Transferor and Fifth Third Bank, as
a Servicer (together with CHL, the "Services"), have entered in the Pooling
and Servicing Agreement, dated as of [month] 1, 2001 (the "Pooling and
Servicing Agreement"), in relation to the CHL Mortgage Pass-Through Trust
200_-_, Mortgage Pass-Through Certificates, Series 200_-_;
WHEREAS, Section 2.01(e) of the Pooling and Servicing Agreement
provides for the parties hereto to enter into this Supplemental Transfer
Agreement in accordance with the terms and conditions of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and adequacy of which are hereby
acknowledged the parties hereto agree as follows:
(a) The "Supplemental Transfer Date" with respect to this Supplemental
Transfer Agreement shall be ________, 2001
(b) The "Aggregate Supplemental Purchase Amount" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Supplemental Loan
Account.
(c) The "Capitalized Interest Requirement" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Capitalized Interest
Account.
(d) The Supplemental Mortgage Loans conveyed on the Supplemental Transfer
Date shall be determined by the Seller as follows:
(i) The Seller shall list all funded mortgage loans then owned by it
that qualify for inclusion in the Trust Fund by the date on which they
were funded, and for each date, the Mortgagors shall be listed
alphabetically. Beginning with the earliest date, sequentially by date
and within a date alphabetically, the listed loans shall be included in
the Trust Fund until either their aggregate Stated Principal Balance is
less than or equal to the Supplemental Purchase Amount without exceeding
it or all of the listed loans have been transferred.
(ii) Once the potential Supplemental Mortgage Loans are identified
in this manner, the total potential Trust Fund shall be tested for
compliance with the characteristics identified in
P-1
Section 2.01(e) after taking into account the addition of such potential
Supplemental Mortgage Loans. If any group characteristic is outside any
permitted parameter by more than 5% of the parameter (or 10% of such
parameter, with respect to the Average Stated Principal Balance, or 10
basis points of such parameter, with respect to the weighted average
mortgage rate, or two months of such parameter, with respect to the
weighted average remaining term to maturity) then beginning with the last
mortgage loan initially added as a potential Supplemental Mortgage Loan
and progressing in reverse order, any potential Supplemental Mortgage
Loan having a characteristic that is outside of the permitted parameters
of a parameter violated by the potential Supplemental Mortgage Loans in
the aggregate shall be removed. Then additional mortgage loans shall be
added as provided in the preceding paragraph except that no mortgage loan
shall be added if it has a characteristic that is outside of the
permitted parameters of a parameter violated by the potential
Supplemental Mortgage Loans in the aggregate. This procedure shall be
repeated until the pool characteristics for the Trust Fund identified in
Section 2.01(e) are satisfied within 5% of each parameter (other than
with respect to the Average Stated Principal Balance for which it must be
within 10%, the weighted average mortgage rate for which it must be
within 10 basis points, and the weighted average remaining term to
maturity for which it must be within two months) of each parameter
specified in those representations and warranties after taking into
account the addition of the potential Supplemental Mortgage Loans.
(e) In case any provision of this Supplemental Transfer Agreement shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions or obligations shall not in any way
be affected or impaired thereby.
(f) In the event of any conflict between the provisions of this
Supplemental Transfer Agreement and the Pooling and Servicing Agreement, the
provisions of the Pooling and Servicing Agreement shall prevail.
(g) This Supplemental Transfer Agreement shall be governed by, and shall
be construed and enforced in accordance with the laws of the State of New
York.
(h) The Supplemental Transfer Agreement may be executed in one or more
counterparts, each of which so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
P-2
IN WITNESS WHEREOF, the parties to this Supplemental Transfer
Agreement have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CWMBS, INC.,
as Depositor
By:
------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:
------------------------------------
Name:
Title:
P-3
EXHIBIT Q
FORM OF TRANSFEREE CERTIFICATE
CWMBS, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities Group
Series 200_-_, Class A-R
Re: CWMBS, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class A-R
-----------------------------------------------
Ladies and Gentlemen:
In Connection with our acquisition of the above Certificates, we certify
that we are not an employee benefit plan subject to Section 406 of ERISA or
Section 4975 of the Code, nor a person acting on behalf of any such plan or
using the assets of such plan, or, alternatively, in the case of an insurance
company, the assets of any separate accounts to effect such acquisition, or
alternatively, the source of funds for the purchase of such Transferred
Certificate is an "insurance company general account" within the meaning of
Prohibited Transaction Class Exemption 95-60 (PTCE 95-60"), 60 Fed. Reg. 35925
(July 12, 1995), and the terms and conditions of Section III of PTCE 95-60
applicable to the acquisition and holding of such Transferred Certificate.
Very truly yours,
------------------------------------
Print Name of Transferee
By:
---------------------------------
Authorized Officer
Q-1