CWALT, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
PARK GRANADA LLC,
Seller
PARK MONACO INC.,
Seller
PARK SIENNA LLC,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
ALTERNATIVE LOAN TRUST
2005-IM1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-IM1
TABLE OF CONTENTS
|
ARTICLE II
|
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES
|
|
SECTION 2.01.
|
Conveyance of Mortgage Loans
|
|
SECTION 2.02.
|
Acceptance by Trustee of the Mortgage
Loans.
|
|
SECTION 2.03.
|
Representations, Warranties and Covenants of the
Sellers and Master Servicer.
|
|
SECTION 2.04.
|
Representations and Warranties of the Depositor
as to the Mortgage Loans.
|
|
SECTION 2.05.
|
Delivery of Opinion of Counsel in Connection
with Substitutions.
|
|
SECTION 2.06.
|
Execution and Delivery of
Certificates.
|
|
SECTION 2.07.
|
REMIC Matters.
|
|
SECTION 2.08.
|
Covenants of the Master Servicer.
|
|
ARTICLE III
|
ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS
|
|
SECTION 3.01.
|
Master Servicer to Service Mortgage
Loans.
|
|
SECTION 3.02.
|
Subservicing; Enforcement of the Obligations of
Servicers.
|
|
SECTION 3.03.
|
Rights of the Depositor, the NIM Insurer and the
Trustee in Respect of the Master Servicer.
|
|
SECTION 3.04.
|
Trustee to Act as Master Servicer.
|
|
SECTION 3.05.
|
Collection of Mortgage Loan Payments;
Certificate Account; Distribution Account; Carryover Reserve Fund;
Principal Reserve Fund.
|
|
SECTION 3.06.
|
Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.
|
|
SECTION 3.07.
|
Access to Certain Documentation and Information
Regarding the Mortgage Loans.
|
|
SECTION 3.08.
|
Permitted Withdrawals from the Certificate
Account, the Distribution Account, the Carryover Reserve Fund and
the Principal Reserve Fund.
|
|
SECTION 3.09.
|
Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies.
|
|
SECTION 3.10.
|
Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
|
|
SECTION 3.11.
|
Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.
|
|
SECTION 3.12.
|
Trustee to Cooperate; Release of Mortgage
Files.
|
|
SECTION 3.13.
|
Documents, Records and Funds in Possession of
Master Servicer to be Held for the Trustee.
|
|
SECTION 3.14.
|
Servicing Compensation.
|
|
SECTION 3.15.
|
Access to Certain Documentation.
|
|
SECTION 3.16.
|
Annual Statement as to Compliance.
|
|
SECTION 3.17.
|
Annual Independent Public Accountants’
Servicing Statement; Financial Statements.
|
|
SECTION 3.18.
|
Errors and Omissions Insurance; Fidelity
Bonds.
|
|
SECTION 3.19.
|
Notification of Adjustments.
|
|
SECTION 3.20.
|
[reserved].
|
|
SECTION 3.21.
|
Prepayment Charges.
|
|
ARTICLE IV
|
DISTRIBUTIONS AND ADVANCES BY THE MASTER
SERVICER
|
|
SECTION 4.01.
|
Advances.
|
|
SECTION 4.02.
|
Priorities of Distribution.
|
|
SECTION 4.03.
|
[Reserved].
|
|
SECTION 4.04.
|
[Reserved].
|
|
SECTION 4.05.
|
[Reserved].
|
|
SECTION 4.06.
|
Monthly Statements to
Certificateholders.
|
|
SECTION 4.07.
|
Determination of Pass-Through Rates for COFI
Certificates.
|
|
SECTION 4.08.
|
Determination of Pass-Through Rates for LIBOR
Certificates.
|
|
SECTION 4.09.
|
[reserved].
|
|
ARTICLE V
|
THE CERTIFICATES
|
|
SECTION 5.01.
|
The Certificates.
|
|
SECTION 5.02.
|
Certificate Register; Registration of Transfer
and Exchange of Certificates.
|
|
SECTION 5.03.
|
Mutilated, Destroyed, Lost or Stolen
Certificates.
|
|
SECTION 5.04.
|
Persons Deemed Owners.
|
|
SECTION 5.05.
|
Access to List of Certificateholders’
Names and Addresses.
|
|
SECTION 5.06.
|
Maintenance of Office or Agency.
|
|
ARTICLE VI
|
THE DEPOSITOR AND THE MASTER SERVICER
|
|
SECTION 6.01.
|
Respective Liabilities of the Depositor and the
Master Servicer.
|
|
SECTION 6.02.
|
Merger or Consolidation of the Depositor or the
Master Servicer.
|
|
SECTION 6.03.
|
Limitation on Liability of the Depositor, the
Sellers, the Master Servicer, the NIM Insurer and
Others.
|
|
SECTION 6.04.
|
Limitation on Resignation of Master
Servicer.
|
|
SECTION 7.01.
|
Events of Default.
|
|
SECTION 7.02.
|
Trustee to Act; Appointment of
Successor.
|
|
SECTION 7.03.
|
Notification to Certificateholders.
|
|
ARTICLE VIII
|
CONCERNING THE TRUSTEE
|
|
SECTION 8.01.
|
Duties of Trustee.
|
|
SECTION 8.02.
|
Certain Matters Affecting the
Trustee.
|
|
SECTION 8.03.
|
Trustee Not Liable for Certificates or Mortgage
Loans.
|
|
SECTION 8.04.
|
Trustee May Own Certificates.
|
|
SECTION 8.05.
|
Trustee’s Fees and Expenses.
|
|
SECTION 8.06.
|
Eligibility Requirements for Trustee.
|
|
SECTION 8.07.
|
Resignation and Removal of Trustee.
|
|
SECTION 8.08.
|
Successor Trustee.
|
|
SECTION 8.09.
|
Merger or Consolidation of Trustee.
|
|
SECTION 8.10.
|
Appointment of Co-Trustee or Separate
Trustee.
|
|
SECTION 8.11.
|
Tax Matters.
|
|
SECTION 9.01.
|
Termination upon Liquidation or Purchase of all
Mortgage Loans.
|
|
SECTION 9.02.
|
Final Distribution on the
Certificates.
|
|
SECTION 9.03.
|
Additional Termination Requirements.
|
|
ARTICLE X
|
MISCELLANEOUS PROVISIONS
|
|
SECTION 10.01.
|
Amendment.
|
|
SECTION 10.02.
|
Recordation of Agreement;
Counterparts.
|
|
SECTION 10.03.
|
Governing Law.
|
|
SECTION 10.04.
|
Intention of Parties.
|
|
SECTION 10.05.
|
Notices.
|
|
SECTION 10.06.
|
Severability of Provisions.
|
|
SECTION 10.07.
|
Assignment.
|
|
SECTION 10.08.
|
Limitation on Rights of
Certificateholders.
|
|
SECTION 10.09.
|
Inspection and Audit Rights.
|
|
SECTION 10.10.
|
Certificates Nonassessable and Fully
Paid.
|
|
SECTION 10.11.
|
[Reserved].
|
|
SECTION 10.12.
|
Protection of Assets.
|
SCHEDULES
|
Schedule I:
|
Mortgage Loan Schedule
|
|
Schedule II-A:
|
Representations and Warranties of
Countrywide
|
|
Schedule II-B:
|
Representations and Warranties of Park
Granada
|
|
Schedule II-C:
|
Representations and Warranties of Park
Monaco
|
|
Schedule III-A:
|
Representations and Warranties of Countrywide as
to all of the Mortgage Loans
|
|
Schedule III-B:
|
Representations and Warranties of Countrywide as
to the Countrywide Mortgage Loans
|
|
Schedule III-C:
|
Representations and Warranties of Park Granada
as to the Park Granada Mortgage Loans
|
|
Schedule III-D:
|
Representations and Warranties of Park Monaco as
to the Park Monaco Mortgage Loans
|
|
Schedule III-E:
|
Representations and Warranties of Park Sienna as
to the Park Sienna Mortgage Loans
|
|
Schedule IV:
|
Representations and Warranties of the Master
Servicer
|
|
Schedule V:
|
Principal Balance Schedules [if
applicable]
|
|
Schedule VI:
|
Form of Monthly Master Servicer
Report
|
|
Schedule VII:
|
Prepayment Charge Schedule
|
EXHIBITS
|
Exhibit A:
|
Form of Senior Certificate
|
|
Exhibit B:
|
Form of Subordinated Certificate
|
|
Exhibit C-1:
|
Form of Class A-R Certificate
|
|
Exhibit C-2:
|
Form of Class C Certificate
|
|
Exhibit C-3:
|
Form of Class P Certificate
|
|
Exhibit D:
|
[Reserved]
|
|
Exhibit E:
|
Form of Reverse of Certificates
|
|
Exhibit F:
|
Form of Initial Certification of
Trustee
|
|
Exhibit G:
|
Form of Delay Delivery Certification of
Trustee
|
|
Exhibit H:
|
Form of Final Certification of
Trustee
|
|
Exhibit I:
|
Form of Transfer Affidavit
|
|
Exhibit J-1:
|
Form of Transferor Certificate
(Residual)
|
|
Exhibit J-2:
|
Form of Transferor Certificate
(Private)
|
|
Exhibit K:
|
Form of Investment Letter [Non-Rule
144A]
|
|
Exhibit L:
|
Form of Rule 144A Letter
|
|
Exhibit M:
|
Form of Request for Release (for
Trustee)
|
|
Exhibit N:
|
Form of Request for Release of Documents
(Mortgage Loan) Paid in Full, Repurchased and Replaced)
|
|
Exhibit O:
|
[Reserved]
|
|
Exhibit P:
|
[Reserved]
|
|
Exhibit Q-1:
|
[Reserved]
|
|
Exhibit Q-2:
|
[Reserved]
|
|
Exhibit R:
|
[Reserved]
|
|
Exhibit S-1:
|
[Reserved]
|
|
Exhibit S-2:
|
[Reserved]
|
|
Exhibit T:
|
Officer’s Certificate with respect to
Prepayments
|
THIS POOLING AND SERVICING
AGREEMENT, dated as of December 1, 2005, among CWALT, INC., a
Delaware corporation, as depositor (the “Depositor”),
COUNTRYWIDE HOME LOANS, INC. (“ Countrywide
”), a New York corporation, as a seller (a “
Seller ”), PARK GRANADA LLC (“ Park
Granada ”), a Delaware limited liability company, as
a seller (a “ Seller ”), PARK MONACO INC.
(“ Park Monaco ”), a Delaware
corporation, as a seller (a “ Seller ”),
PARK SIENNA LLC (“ Park Sienna ”), a
Delaware limited liability company, as a seller (a “
Seller ”), COUNTRYWIDE HOME LOANS SERVICING LP,
a Texas limited partnership, as master servicer (the “
Master Servicer ”), and THE BANK OF NEW YORK, a
banking corporation organized under the laws of the State of New
York, as trustee (the “ Trustee
”).
WITNESSETH THAT
In consideration of the mutual
agreements contained in this Agreement, the parties to this
Agreement agree as follows:
PRELIMINARY STATEMENT:
The Depositor intends to sell
mortgage asset-backed pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in seventeen
classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans (as defined
herein).
REMIC I
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the Mortgage Loans and certain other related assets (exclusive
of the Carryover Reserve Fund) subject to this Agreement as a real
estate mortgage investment conduit (a “REMIC”) for
federal income tax purposes, and such segregated pool of assets
will be designated as “REMIC I.” The Class R-I Interest
will represent the sole class of “residual interests”
in REMIC I for purposes of the REMIC Provisions (as defined herein)
under federal income tax law. The following table irrevocably sets
forth the designation, remittance rate (the “Uncertificated
REMIC I Pass-Through Rate”) and initial Uncertificated
Principal Balance for each of the “regular interests”
in REMIC I (the “REMIC I Regular Interests”). The
“latest possible maturity date” (determined for
purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii)) for each REMIC I Regular Interest shall be the
360th Distribution Date. None of the REMIC I Regular Interests will
be certificated.
|
|
Uncertificated
REMIC I Pass-
Through Rate
|
Uncertificated Principal
Balance
|
Latest Possible
Maturity Date
(1)
|
|
LT-AA
|
Variable (2)
|
$
|
372,312,129.66
|
November 25, 2035
|
|
LT-A-1
|
Variable (2)
|
$
|
2,017,320.00
|
November 25, 2035
|
|
LT-A-2
|
Variable (2)
|
$
|
840,550.00
|
November 25, 2035
|
|
LT-A-3
|
Variable (2)
|
$
|
504,330.00
|
November 25, 2035
|
|
LT-A-IO
|
2.700% (3)
|
|
N/A (4)
|
November 25, 2035
|
|
LT-M-1
|
Variable (2)
|
$
|
169,060.00
|
November 25, 2035
|
|
LT-M-2
|
Variable (2)
|
$
|
119,670.00
|
November 25, 2035
|
|
LT-M-3
|
Variable (2)
|
$
|
68,380.00
|
November 25, 2035
|
|
LT-M-4
|
Variable (2)
|
$
|
11,390.00
|
November 25, 2035
|
|
LT-M-5
|
Variable (2)
|
$
|
18,990.00
|
November 25, 2035
|
|
LT-ZZ
|
Variable (2)
|
$
|
3,848,516.73
|
November 25, 2035
|
|
LT-P
|
Variable (2)
|
$
|
100.00
|
November 25, 2035
|
|
LT-R
|
N/A
|
$
|
100.00
|
November 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the Distribution Date in the month
following the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the “latest possible
maturity date” for each REMIC I Regular Interest.
|
|
(2)
|
Calculated in accordance with the definition of
“Uncertificated REMIC I Pass-Through Rate”
herein.
|
|
(3)
|
REMIC I Regular Interest LT-A-IO will accrue
interest at a rate of (i) for the first Distribution Date, 2.700%
and (ii) thereafter, 0.00%.
|
|
(4)
|
REMIC I Regular Interest LT-A-IO will not have an
Uncertificated Principal Balance, but will accrue interest on its
Uncertificated Notional Amount, as defined herein.
|
REMIC II
As provided herein, the Trustee will
elect to treat the segregated pool of assets consisting of the
REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
REMIC II. The Class R-II Interest will represent the sole class of
“residual interests” in REMIC II for purposes of the
REMIC Provisions under federal income tax law. The following table
irrevocably sets forth the designation, Pass-Through Rate,
aggregate Initial Certificate Principal Balance and Final Scheduled
Distribution Date for each Class of Certificates comprising the
interests representing “regular interests” in REMIC II.
The “latest possible maturity date” (determined for
purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii)) for each Class of REMIC II Regular
Certificates shall be the 360th Distribution Date.
|
|
|
Aggregate Initial
Certificate
Principal Balance
|
Latest Possible
Maturity Date
(1)
|
|
Class A-1
|
Variable (2)
|
$
|
201,732,000.00
|
November 25, 2035
|
|
Class A-2
|
Variable (2)
|
$
|
84,055,000.00
|
November 25, 2035
|
|
Class A-3
|
Variable (2)
|
$
|
50,433,000.00
|
November 25, 2035
|
|
Class A-IO
|
Variable (2)
|
|
N/A (3)
|
November 25, 2035
|
|
Class M-1
|
Variable (2)
|
$
|
16,906,000.00
|
November 25, 2035
|
|
Class M-2
|
Variable (2)
|
$
|
11,967,000.00
|
November 25, 2035
|
|
Class M-3
|
Variable (2)
|
$
|
6,838,000.00
|
November 25, 2035
|
|
Class M-4
|
Variable (2)
|
$
|
1,139,000.00
|
November 25, 2035
|
|
Class M-5
|
Variable (2)
|
$
|
1,899,000.00
|
November 25, 2035
|
|
Class C
|
(4)
|
$
|
(4)
|
November 25, 2035
|
|
Class P
|
0.00%
|
$
|
100.00
|
November 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the Distribution Date in the month
following the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the “latest possible
maturity date” for each Class of Certificates.
|
|
(2)
|
Calculated in accordance with the definition of
“Pass-Through Rate” herein.
|
|
(3)
|
The Class A-IO Certificates will not have a
Certificate Principal Balance, but will accrue interest on their
“Notional Amount” as described herein. For federal
income tax purposes, the Class A-IO Certificates will be entitled
to 100% of amounts distributed in respect of REMIC I Regular
Interest LT-A-IO.
|
|
(4)
|
The Class C Interest will accrue interest at its
variable Pass-Through Rate on the Notional Amount of the Class C
Interest outstanding from time to time which shall equal the
Uncertificated Principal Balance of the REMIC I Regular Interests
(other than REMIC I Regular Interest LT-P and REMIC I Regular
Interest LT-R). The Class C Certificates will not accrue interest
on their Certificate Principal Balance initially equal to
$4,941,336.39.
|
Set forth below are designations of
Classes or Components of Certificates and other defined terms to
the categories used in this Agreement:
Accretion Directed
Accretion Directed
|
Components.
|
None.
|
|
Accrual Certificates
|
None.
|
|
Accrual Components
|
None.
|
|
Book-Entry Certificates.
|
All Classes of Certificates other
than the Physical Certificates.
|
|
COFI Certificates.
|
None.
|
|
Component Certificates
|
None.
|
|
Components
|
None.
|
|
Delay Certificates.
|
All interest-bearing Classes of
Certificates other than the Non-Delay Certificates, if
any.
|
ERISA-Restricted
|
Certificates.
|
The Residual Certificates and the
Private Certificates (except for any Class A-IO Certificate that
has been the subject of any ERISA-Qualifying Underwriting); and any
Certificate of a Class that does not or no longer satisfies the
applicable rating requirement under the Underwriter’s
Exemption.
|
|
Certificates
|
The Senior, Private and Subordinated
Certificates.
|
Inverse Floating Rate
|
Certificates.
|
None.
|
|
|
LIBOR Certificates
|
The Class A-1, Class A-2, Class A-3,
Class
|
M-1, Class M-2, Class M-3, Class M-4
and Class M-5 Certificates.
|
Non-Delay Certificates
|
The LIBOR Certificates and the Class
A-IO Certificates.
|
Notional Amount
|
Certificates.
|
The Class A-IO Certificates and the
Class C Certificates.
|
|
Offered Certificates..
|
All Classes of Certificates other
than the Private Certificates.
|
|
Physical Certificates..
|
The Private Certificates and the
Residual Certificates.
|
|
Planned Principal Classes
|
None.
|
|
Planned Principal
|
Components
|
None.
|
|
|
Principal Only
Certificates.
|
None.
|
|
|
Private Certificates..
|
The Class C, Class A-IO and Class P
Certificates.
|
|
Rating Agencies.
|
S&P and
Moody’s.
|
|
|
|
|
|
|
|
Regular Certificates.
|
All Classes of Certificates, other
than the Residual Certificates.
|
|
Residual Certificates..
|
The Class A-R and Class R-X
Certificates.
|
Scheduled Principal
|
Senior Certificates.
|
The Class A-1, Class A-2, Class A-3, Class
A-IO and Class A-R Certificates.
|
|
Subordinated Certificates .
|
The Class M-1, Class M-2, Class M-3,
Class M-4 and Class M-5 Certificates.
|
Targeted Principal
|
Classes.
|
None.
|
|
|
Underwriter
|
Countrywide Securities
Corporation.
|
With respect to any of the foregoing
designations as to which the corresponding reference is
“None,” all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force
or effect, and any calculations in this Agreement incorporating
references to such designations shall be interpreted without
reference to such designations and amounts. Defined terms and
provisions in this Agreement relating to statistical rating
agencies not designated above as Rating Agencies shall be of no
force or effect.
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
Classes : As specified in
the Preliminary Statement.
Adjusted Mortgage Rate
: As to each Mortgage Loan, and at
any time, the per annum rate equal to the Mortgage Rate less the
Master Servicing Fee Rate.
Adjusted Net Mortgage
Rate : As to each
Mortgage Loan, and at any time, the per annum rate equal to the
Mortgage Rate less the related Expense Fee Rate.
Adjusted Cap Rate
: For the offered certificates for
any Distribution Date, the excess, if any, of the Net WAC Cap for
such Distribution Date, over a fraction expressed as a percentage,
the numerator of which is equal to the product of (i) a fraction,
the numerator of which is 360 and the denominator of which is the
actual number of days in the related Accrual Period and (ii) the
amount of Net Deferred Interest for the Mortgage Loans for that
Distribution Date, and the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans at the end of the
Prepayment Period related to the immediately preceding Distribution
Date or, in the case of the first Distribution Date, the Cut-off
Date.
Adjustment Date
: A date specified in each Mortgage
Note as a date on which the Mortgage Rate on the related Mortgage
Loan will be adjusted.
Advance : The payment required to be made by the Master
Servicer with respect to any Distribution Date pursuant to Section
4.01, the amount of any such payment being equal to the aggregate
of payments of principal and interest (net of the Master Servicing
Fee and net of any net income in the case of any REO Property) on
the Mortgage Loans that were due on the related Due Date and not
received by the Master Servicer as of the close of business on the
related Determination Date, together with an amount equivalent to
interest on each Mortgage Loan as to which the related Mortgaged
Property is an REO Property, less the aggregate amount of any such
delinquent payments that the Master Servicer has determined would
constitute a Nonrecoverable Advance if advanced.
Agreement : This Pooling and Servicing Agreement and all
amendments or supplements this Pooling and Servicing
Agreement.
Amount Held for Future
Distribution : As to any
Distribution Date, the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date
on account of (i) Principal Prepayments received after the related
Prepayment Period and Liquidation Proceeds and Subsequent
Recoveries received in the month of such Distribution Date and (ii)
all Scheduled Payments due after the related Due Date.
Applied Realized Loss
Amount : With respect to
any Distribution Date, the amount, if any, by which, the aggregate
Class Certificate Balance of the Certificates (after all
distributions
of principal on such Distribution
Date) exceeds the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date.
Appraised Value
: With respect to any Mortgage Loan,
the Appraised Value of the related Mortgaged Property shall be: (i)
with respect to a Mortgage Loan other than a Refinancing Mortgage
Loan, the lesser of (a) the value of the Mortgaged Property based
upon the appraisal made at the time of the origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at
the time of the origination of such Mortgage Loan; (ii) with
respect to a Refinancing Mortgage Loan other than a Streamlined
Documentation Mortgage Loan, the value of the Mortgaged Property
based upon the appraisal made-at the time of the origination of
such Refinancing Mortgage Loan; and (iii) with respect to a
Streamlined Documentation Mortgage Loan, (a) if the loan-to-value
ratio with respect to the Original Mortgage Loan at the time of the
origination thereof was 80% or less and the loan amount of the new
mortgage loan is $650,000 or less, the value of the Mortgaged
Property based upon the appraisal made at the time of the
origination of the Original Mortgage Loan and (b) if the
loan-to-value ratio with respect to the Original Mortgage Loan at
the time of the origination thereof was greater than 80% or the
loan amount of the new mortgage loan being originated is greater
than $650,000, the value of the 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.
Available Funds
: As to any Distribution Date, the
sum of (a) the aggregate amount held in the Certificate Account at
the close of business on the related Determination Date, including
any Subsequent Recoveries, in respect of such Mortgage Loans net of
the related Amount Held for Future Distribution and net of
Prepayment Charges and amounts permitted to be withdrawn from the
Certificate Account pursuant to clauses (i) - (viii) of Section
3.08(a) in respect of such Mortgage Loans and amounts permitted to
be withdrawn from the Distribution Account pursuant to clauses (i)
- (iii) of Section 3.08(b) in respect of such Mortgage Loans, (b)
the amount of the related Advance and (c) in connection with
Defective Mortgage Loans, as applicable, the aggregate of the
Purchase Prices and Substitution Adjustment Amounts deposited on
the related Distribution Account Deposit Date.
Bankruptcy Code
: The United States Bankruptcy
Reform Act of 1978, as amended.
Book-Entry
Certificates : As
specified in the Preliminary Statement.
Business Day
: Any day other than (i) a
Saturday or a Sunday or (ii) a day on which banking
institutions in the City of New York, New York, or the States of
California or Texas or the city in which the Corporate Trust Office
of the Trustee is located are authorized or obligated by law or
executive order to be closed.
Carryover Reserve Fund
: The separate Eligible Account
created and initially maintained by the Trustee pursuant to Section
3.05(g) in the name of the Trustee for the benefit of the Holders
of the Offered Certificates and designated “The Bank of New
York in trust for registered holders of CWALT, Inc., Alternative
Loan Trust 2005-IM1, Mortgage Pass-Through Certificates, Series
2005-IM1.” Funds in the Carryover Reserve Fund shall be held
in trust for the Holders of the Offered Certificates for the uses
and purposes set forth in this Agreement.
Certificate
: Any one of the Certificates
executed by the Trustee in substantially the forms attached this
Agreement as exhibits.
Certificate Account
: The separate Eligible Account
created and initially maintained by the Master Servicer pursuant to
Section 3.05 with Treasury Bank, a division of Countrywide Bank,
N.A. in the name of the Master Servicer for the benefit of the
Trustee on behalf of Certificateholders and designated
“Countrywide Home Loans Servicing LP in trust for the
registered holders of Alternative Loan Trust 2005-IM1, Mortgage
Pass-Through Certificates Series 2005-IM1.”
Certificate Owner
: With respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such
Book-Entry Certificate. For the purposes of this Agreement, in
order for a Certificate Owner to enforce any of its rights under
this Agreement, it shall first have to provide evidence of its
beneficial ownership interest in a Certificate that is reasonably
satisfactory to the Trustee, the Depositor, and/or the Master
Servicer, as applicable.
Certificate Principal
Balance : With respect to
any Certificate (other than the Class C Certificates) at any date,
the maximum dollar amount of principal to which the Holder thereof
is then entitled under this Agreement, such amount being equal to
the Denomination of that Certificate (A) plus, (i) with respect to
the Offered Certificates (other than the Class A-R Certificates),
any increase to the Certificate Balance of such Certificate
pursuant to Section 4.02 due to the receipt of Subsequent
Recoveries and (ii) the amount of Net Deferred Interest incurred by
the Mortgage Loans in the related Due Period and allocated to such
Class of Certificates pursuant to Section 4.02(j) and (B)
minus the sum of (i) all distributions of principal
previously made with respect to that Certificate and (ii) with
respect to the Offered Certificates (other than the Class A-R
Certificates), any Applied Realized Loss Amounts allocated to such
Certificate on previous Distribution Dates pursuant to Section 4.02
without duplication. With respect to the Class C Certificates and
any Distribution Date, the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the
prior calendar month (after giving effect to Principal Prepayments,
the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the Prepayment Period related to
that prior Due Date) over the aggregate Class Certificate Balance
of the Offered Certificates and the Class P Certificates
immediately prior to that Distribution Date.
Certificate Register
: The register maintained pursuant
to Section 5.02.
Certificateholder or
Holder : The person in
whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant
to this Agreement, any Certificate registered in the name of the
Depositor or any affiliate of the Depositor shall be deemed not to
be Outstanding and the Percentage Interest evidenced thereby shall
not be taken into account in determining whether the requisite
amount of Percentage Interests necessary to effect such consent has
been obtained; provided, however, that if any such Person
(including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision of this
Agreement (other than the second sentence of Section 10.01) that
requires the consent of the Holders of Certificates of a particular
Class as a condition to the taking of any action under this
Agreement. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any
affiliate of the Depositor in
determining which Certificates are registered in the name of an
affiliate of the Depositor.
Class : All Certificates bearing the same class
designation as set forth in the Preliminary Statement.
Class C Distributable
Amount : As defined in
the Preliminary Statement.
Class P Certificate
: The Class P Certificate, in the
form of Exhibit C-3 hereto, representing the right to distributions
as set forth herein.
Class P Principal Distribution
Date : The first
Distribution Date that occurs after the end of the latest
Prepayment Charge Period for the Mortgage Loans that have a
Prepayment Charge.
Class R-I Interest
: The uncertificated Residual
Interest in REMIC I.
Class R-II Interest
: The uncertificated Residual
Interest in REMIC II.
Closing Date
: December 9, 2005.
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.
Compensating Interest
: As to any Distribution Date, an
amount equal to the product of 50% and the aggregate Master
Servicing Fee payable to the Master Servicer for that Distribution
Date.
Component : As specified in the Preliminary
Statement.
Component Balance
: Not applicable.
Component Certificates
: As specified in the Preliminary
Statement.
Component Notional
Amount : Not
applicable.
Coop Shares
: Shares issued by a Cooperative
Corporation.
Cooperative
Corporation : The entity
that holds title (fee or an acceptable leasehold estate) to the
real property and improvements constituting the Cooperative
Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan
: Any Mortgage Loan secured by Coop
Shares and a Proprietary Lease.
Cooperative Property
: The real property and improvements
owned by the Cooperative Corporation, including the allocation of
individual dwelling units to the holders of the Coop Shares of the
Cooperative Corporation.
Cooperative Unit
: A single family dwelling located
in a Cooperative Property.
Corporate Trust Office
: The designated office of the
Trustee in the State of New York at which at any particular time
its corporate trust business with respect to this Agreement shall
be administered, which office at the date of the execution of this
Agreement is located at 101 Barclay Street, 8W, New York, New York
10286 (Attn: Mortgage-Backed Securities Group, CWALT, Inc. Series
2005-IM1, facsimile no. (212) 815-3986), and which is the address
to which notices to and correspondence with the Trustee should be
directed.
Corresponding
Certificate : With
respect to each REMIC I Regular Interest set forth below, the
Certificate set forth in the table below:
|
REMIC I Regular
Interest
|
REMIC II
Certificate
|
|
LT-A-1
|
Class A-1 Certificate
|
|
LT-A-2
|
Class A-2 Certificate
|
|
LT-A-3
|
Class A-3 Certificate
|
|
LT-A-IO
|
Class A-IO Certificate
|
|
LT-M-1
|
Class M-1 Certificate
|
|
LT-M-2
|
Class M-2 Certificate
|
|
LT-M-3
|
Class M-3 Certificate
|
|
LT-M-4
|
Class M-4 Certificate
|
|
LT-M-5
|
Class M-5 Certificate
|
|
LT-ZZ
|
Class C Certificate
|
|
LT-P
|
Class P Certificate
|
|
LT-R
|
Class A-R Certificate
|
|
|
|
Countrywide
: Countrywide Home Loans, Inc., a
New York corporation and its successors and assigns, in its
capacity as the seller of the Mortgage Loans to the
Depositor.
Countrywide Servicing
: Countrywide Home Loans Servicing
LP, a Texas limited partnership and its successors and
assigns.
Cumulative Loss Trigger
Event : With respect to a
Distribution Date on or after the Stepdown Date, the aggregate
amount of Realized Losses on the Mortgage Loans from (and
including) the Cut-off Date to the related Due Date (reduced by the
aggregate amount of Subsequent Recoveries received from the Cut-off
Date through the Prepayment Period related to that Due Date)
exceeds the applicable percentage, for such Distribution Date, of
the aggregate State Principal Balance of the Mortgage Loans as set
forth below:
|
Distribution Date
|
Percentage
|
|
December 2008 – November 2009
|
0.75% with respect to December 2008,
plus an additional 1/12 th of 0.55% for each month
thereafter through November 2009
|
|
December 2009 – November 2010
|
1.30 with respect to December 2009,
plus an additional 1/12 th of 0.60% for each month
thereafter through November 2010
|
|
December 2010 – November 2011
|
1.90% with respect to December 2010,
plus an additional 1/12 th of 0.75% for each month
thereafter through November 2011
|
|
December 2011 – November 2012
|
2.65% with respect to December 2011,
plus an additional 1/12 th of 0.25% for each month
thereafter through November 2012
|
|
December 2012 and thereafter
|
2.90%
|
|
|
|
Current Interest
: With respect to each Class of
Offered Certificates and the Class A-IO Certificates and each
Distribution Date, the interest accrued at the applicable
Pass-Through Rate for the applicable Interest Accrual Period on the
Certificate Principal Balance or Notional Amount of such Class
immediately prior to such Distribution Date less any Net Deferred
Interest for that Distribution Date allocated to such Class of
Certificates as described in Section 4.02(j) below.
Cut-off Date
: As to any Mortgage Loan, the later
of the date of origination of that Mortgage Loan and December 1,
2005.
Cut-off Date Pool Principal
Balance :
$379,910,436.
Cut-off Date Principal
Balance : As to any
Mortgage Loan, the Stated Principal Balance thereof as of the close
of business on the Cut-off Date.
Debt Service Reduction
: With respect to any Mortgage Loan,
a reduction by a court of competent jurisdiction in a proceeding
under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a
reduction resulting from a Deficient Valuation or any reduction
that results in a permanent forgiveness of principal.
Defective Mortgage
Loan : Any Mortgage Loan
that is required to be repurchased pursuant to Section 2.02 or
2.03.
Deferred Interest
: With respect to each Mortgage Loan
and each related Due Date, the excess if any, of the amount of
interest accrued on such Mortgage Loan from the preceding Due Date
to such Due Date over the monthly interest payment due for such Due
Date.
Deficient Valuation
: With respect to any Mortgage Loan,
a valuation by a court of competent jurisdiction of the Mortgaged
Property in an amount less than the then-outstanding indebtedness
under the Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal,
which valuation or reduction results
from an order of such court which is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive
Certificates : Any
Certificate evidenced by a Physical Certificate and any Certificate
issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Delay Certificates
: As specified in the Preliminary
Statement.
Delay Delivery
Certification : As
defined in Section 2.02(a).
Delay Delivery Mortgage
Loans : The Mortgage
Loans for which all or a portion of a related Mortgage File is not
delivered to Trustee on the Closing Date. With respect to up to 50%
of the Mortgage Loans, the Depositor may deliver all or a portion
of each related Mortgage File to the Trustee not later than thirty
days after the Closing Date. To the extent that Countrywide
Servicing shall be in possession of any Mortgage Files with respect
to any Delay Delivery Mortgage Loan, until delivery of such
Mortgage File to the Trustee as provided in Section 2.01,
Countrywide Servicing shall hold such files as Master Servicer
hereunder, as agent and in trust for the Trustee.
Deleted Mortgage Loan
: As defined in
Section 2.03(C).
Delinquency Trigger
Event : With respect to a
Distribution Date on or after the Stepdown Date, the Rolling
Sixty-Day Delinquency Rate for the outstanding Mortgage Loans
equals or exceeds the product of (i) (a) on any Distribution Date
prior to the Distribution Date in December 2011, 20.00% and (b) on
any Distribution Date on or after the Distribution Date in December
2011, 26.00% and (ii) the Senior Enhancement Percentage for such
Distribution Date
Delinquent
: A Mortgage Loan is
“delinquent” if any payment due thereon is not made
pursuant to the terms of such Mortgage Loan by the close of
business on the day such payment is scheduled to be due. A Mortgage
Loan is “30 days delinquent” if such payment has not
been received by the close of business on the corresponding day of
the month immediately succeeding the month in which such payment
was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on
the 31 st day of such month), then on the last day of
such immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so
on.
Denomination
: With respect to each Certificate,
the amount set forth on the face of that Certificate as the
“Initial Certificate Balance of this Certificate” or
the “Initial Notional Amount of this Certificate” or,
if neither of the foregoing, the Percentage Interest appearing on
the face thereof.
Depositor : CWALT, Inc., a Delaware corporation, or its
successor in interest.
Depository
: The initial Depository shall be
The Depository Trust Company, the nominee of which is CEDE &
Co., as the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York.
Depository Participant
: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
Determination Date
: As to any Distribution Date, the
22 nd day of each month or, if such 22 nd day
is not a Business Day, the next preceding Business Day; provided,
however, that if such 22 nd day or such Business Day,
whichever is applicable, is less than two Business Days prior to
the related Distribution Date, the Determination Date shall be the
first Business Day that is two Business Days preceding such
Distribution Date.
Distribution Account
: The separate Eligible Account
created and maintained by the Trustee pursuant to
Section 3.05(d) in the name of the Trustee for the benefit of
the Certificateholders and designated “The Bank of New York
in trust for registered holders of Alternative Loan Trust 2005-IM1,
Mortgage Pass-Through Certificates, Series 2005-IM1.” 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 25 th day of each
calendar month after the initial issuance of the Certificates, or
if such 25 th day is not a Business Day, the next
succeeding Business Day, commencing in December 2005.
Due Date : With respect to a Mortgage Loan, the date on
which Scheduled Payments are due on that Mortgage Loan. With
respect to any Distribution Date, the related Due Date is the first
day of the calendar month in which that Distribution Date
occurs.
Due Period
: With respect to any Distribution
Date, the period beginning on the second day of the calendar month
preceding the calendar month in which such Distribution Date occurs
and ending on the first day of the month in which such 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 Moody’s and one of the two
highest short-term ratings of S&P, if S&P is a Rating
Agency at the time any amounts are held on deposit therein, or
(ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to
the limits established by the FDIC) and the uninsured deposits in
which accounts are otherwise secured such that, as evidenced by an
Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the
funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to
Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained,
or (iii) a trust account or accounts maintained with
(a) the trust department of a federal or state chartered
depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other
account acceptable to each Rating
Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with
the Trustee.
Eligible Repurchase
Month : As defined in
Section 3.11.
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
ERISA-Qualifying
Underwriting : A best
efforts or firm commitment underwriting or private placement that
meets the requirements of the Underwriter’s
Exemption.
ERISA-Restricted
Certificate : As
specified in the Preliminary Statement.
Escrow Account
: The Eligible Account or Accounts
established and maintained pursuant to
Section 3.06(a).
Event of Default
: As defined in
Section 7.01.
Excess Proceeds
: With respect to any Liquidated
Mortgage Loan, the amount, if any, by which the sum of any
Liquidation Proceeds received with respect to such Mortgage Loan
during the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan plus any Subsequent Recoveries received
with respect to such Mortgage Loan, net of any amounts previously
reimbursed to the Master Servicer as Nonrecoverable Advance(s) with
respect to such Mortgage Loan pursuant to Section 3.08(a)(iii),
exceeds (i) the unpaid principal balance of such Liquidated
Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued
interest at the Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date applicable to the
Distribution Date immediately following the calendar month during
which such liquidation occurred.
Expense Fee
: As to each Mortgage Loan and any
Distribution Date, the product of the Expense Fee Rate and its
Stated Principal Balance as of that Distribution Date.
Expense Fee Rate
: As to each Mortgage Loan and any
date of determination, the sum of (a) the Master Servicing Fee
Rate, (b) the Trustee Fee Rate and (c) the Lender-Paid PMI Fee
Rate, if applicable.
FDIC : The Federal Deposit Insurance Corporation, or
any successor thereto.
FHLMC : The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created and existing
under Title III of the Emergency Home Finance Act of 1970, as
amended, or any successor to the Federal Home Loan Mortgage
Corporation.
Final Certification
: As defined in Section
2.02(a).
FIRREA : The Financial Institutions Reform, Recovery,
and Enforcement Act of 1989.
Fitch : Fitch, Inc., or any successor thereto. If
Fitch is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for
notices to Fitch shall be Fitch, Inc., One State Street Plaza, New
York, New York 10004, Attention: Residential
Mortgage Surveillance Group, or such
other address as Fitch may hereafter furnish to the Depositor and
the Master Servicer.
FNMA : The Federal National Mortgage Association, a
federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter
Act, or any successor to the Federal National Mortgage
Association.
Gross Margin
: The percentage set forth in the
related Mortgage Note for the Mortgage Loans to be added to
One-Year LIBOR for use in determining the Mortgage Rate on each
Adjustment Date, and which is set forth in the Mortgage Loan
Schedule.
Index : With respect to any Interest Accrual Period
for the COFI Certificates, if any, the then-applicable index used
by the Trustee pursuant to Section 4.07 to determine the applicable
Pass-Through Rate for such Interest Accrual Period for the COFI
Certificates.
Indirect Participant
: A broker, dealer, bank or other
financial institution or other Person that clears through or
maintains a custodial relationship with a Depository
Participant.
Initial Certification
: As defined in Section
2.02(a).
Initial Component
Balance : As specified in
the Preliminary Statement.
Insurance Policy
: With respect to any Mortgage Loan
included in the Trust Fund, any insurance policy, including all
riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance
Policies.
Insurance Proceeds
: Proceeds paid by an insurer
pursuant to any Insurance Policy, in each case other than any
amount included in such Insurance Proceeds in respect of Insured
Expenses.
Insured Expenses
: Expenses covered by an Insurance
Policy or any other insurance policy with respect to the Mortgage
Loans.
Interest Accrual
Period : With respect to
each Class of Delay Certificates, its corresponding Subsidiary
REMIC Regular Interest and any Distribution Date, the calendar
month prior to the month of such Distribution Date. With respect to
any Class of Non-Delay Certificates, its corresponding Subsidiary
REMIC Regular Interest and any Distribution Date, the period
commencing on the Distribution Date in the month preceding the
month in which such Distribution Date occurs (other than the first
Distribution Date, for which it is the Closing Date) and ending on
the day preceding such Distribution Date. All calculations of
interest on the Delay Certificates will be made on the basis of a
360-day year consisting of twelve 30-day months. All calculations
of interest on the Non-Delay Certificates will be made on the basis
of the actual number of days elapsed in the related Accrual Period
and on a 360-day year. The Class A-R Certificates and Class P
Certificates will not accrue any interest and therefore have no
Interest Accrual Period.
Interest Carry Forward
Amount : With respect to
each Class of Offered Certificates (other than the Class A-R
Certificates) and the Class A-IO Certificates and each Distribution
Date, the excess of (i) the Current Interest for such Class with
respect to prior Distribution Dates
over (ii) the amount actually
distributed to such Class with respect to interest on such prior
Distribution Dates.
Interest Determination
Date : With respect to
(a) any Interest Accrual Period for any LIBOR Certificates and
(b) any Interest Accrual Period for the COFI Certificates for
which the applicable Index is LIBOR, the second Business Day prior
to the first day of such Interest Accrual Period.
Interest Funds
: With respect to any Distribution
Date, the excess of the Interest Remittance Amount over the portion
of the Trustee Fee for such Distribution Date.
Interest Remittance
Amount : With respect to
the Mortgage Loans and any Distribution Date, (x) the sum, without
duplication, of (i) all scheduled interest on the Mortgage Loans
due on the related Due Date and received on or prior to the related
Determination Date, less the related Master Servicing Fees and any
payments made in respect of premiums on Lender PMI Mortgage Loans,
(ii) all interest on Principal Prepayments on the Mortgage Loans,
other than Prepayment Interest Excess, (iii) all Advances relating
to interest with respect to the Mortgage Loans, (iv) all
Compensating Interest with respect to such Mortgage Loans and (v)
Liquidation Proceeds with respect to the Mortgage Loans during the
related Prepayment Period (to the extent such Liquidation Proceeds
relate to interest), less (y) all reimbursements to the Master
Servicer since the immediately preceding Due Date for Advances of
interest previously made allocable.
Investment Letter
: As defined in Section
5.02(b).
Latest Possible Maturity
Date : The Distribution
Date following the third anniversary of the scheduled maturity date
of the Mortgage Loan having the latest scheduled maturity date as
of the Cut-off Date.
Lender PMI Mortgage
Loan : Certain Mortgage
Loans as to which the lender (rather than the Mortgagor) acquires
the Primary Insurance Policy and charges the related Mortgagor an
interest premium.
Lender-Paid PMI Fee
: The fee paid in connection with
any lender-paid primary mortgage insurance policy paid to any
primary mortgage insurance provider for any Mortgage
Loan.
Lender-Paid PMI Fee
Rate : With respect to
each Mortgage Loan with any lender-paid primary mortgage insurance
policy, 0% per annum.
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) that was liquidated in the calendar month preceding the
month of such Distribution Date and as to which the Master Servicer
has determined (in accordance with this Agreement) that it has
received all amounts it expects to receive in
connection with the liquidation of
such Mortgage Loan, including the final disposition of an REO
Property.
Liquidation Proceeds
: Amounts, including Insurance
Proceeds, received in connection with the partial or complete
liquidation of defaulted Mortgage Loans, whether through
trustee’s sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of
a Mortgaged Property and any other proceeds received in connection
with an REO Property, less the sum of related unreimbursed Master
Servicing Fees, Servicing Advances and Advances.
Loan-to-Value Ratio
: With respect to any Mortgage Loan
and as to any date of determination, the fraction (expressed as a
percentage) the numerator of which is the principal balance of the
related Mortgage Loan at that date of determination and the
denominator of which is the Appraised Value of the related
Mortgaged Property.
Lost Mortgage Note
: Any Mortgage Note the original of
which was permanently lost or destroyed and has not been
replaced.
Maintenance
: With respect to any Cooperative
Unit, the rent paid by the Mortgagor to the Cooperative Corporation
pursuant to the Proprietary Lease.
Majority in Interest
: As to any Class of Regular
Certificates, the Holders of Certificates of such Class evidencing,
in the aggregate, at least 51% of the Percentage Interests
evidenced by all Certificates of such Class.
Marker Rate
: With respect to the Class C
Certificates and any Distribution Date, a per annum rate equal to
two (2) multiplied by the weighted average of the Pass Through
Rates for each REMIC I Regular Interest (other than REMIC I Regular
Interest LT-A-IO, REMIC I Regular Interest LT-P and REMIC I Regular
Interest LT-R), with the rates on each such REMIC I Regular
Interest subject to a cap equal to the Pass Through Rate for the
Corresponding Class for such REMIC I Regular Interest, and the rate
on REMIC I Regular Interest LT-ZZ subject to a cap of zero for
purposes of this calculation; provided, however, for purposes of
this calculation each such rate shall be multiplied by a fraction.,
the numerator of which is the actual number of days in the accrual
period and the denominator of which is 30.
Master Servicer
: Countrywide Home Loans Servicing
LP, a Texas limited partnership, and its successors and assigns, in
its capacity as master servicer hereunder.
Master Servicer Advance
Date : As to any
Distribution Date, 12:30 p.m. Pacific time on the Business Day
immediately preceding such Distribution Date.
Master Servicing Fee
: As to each Mortgage Loan and any
Distribution Date, an amount payable out of each full payment of
interest received on such Mortgage Loan and equal to one-twelfth of
the Master Servicing Fee Rate multiplied by the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the month
preceding the month of such Distribution Date, subject to reduction
as provided in Section 3.14.
Master Servicing Fee
Rate : With respect to
each Mortgage Loan, the per annum rate set forth on the Mortgage
Loan Schedule for such Mortgage Loan.
Maximum Mortgage Rate
: With respect to each Mortgage
Loan, the maximum rate of interest set forth as such in the related
Mortgage Note.
Maximum Negative
Amortization : With
respect to each Mortgage Loan, the percentage set forth in the
related Mortgage Note as the percentage of the original principal
balance of Mortgage Note, that if exceeded due to Deferred
Interest, will result in a recalculation of the Scheduled Payment
so that the then unpaid principal balance of the Mortgage Note will
be fully amortized over the Mortgage Loan’s remaining term to
maturity.
Maximum Rate
: 9.50% per annum.
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor to Mortgage Electronic
Registration Systems, Inc.
MERS Mortgage Loan
: Any Mortgage Loan registered with
MERS on the MERS® System.
MERS® System
: The system of recording transfers
of mortgages electronically maintained by MERS.
MIN : The mortgage identification number for any
MERS Mortgage Loan.
Minimum Mortgage Rate
: With respect to each Mortgage
Loan, the minimum rate of interest set forth as such in the related
Mortgage Note, which, with respect to certain Mortgage Loans is
equal to the related Gross Margin.
MOM Loan : Any Mortgage Loan as to which MERS is acting
as mortgagee, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns.
Monthly Statement
: The statement delivered to the
Certificateholders pursuant to Section 4.06.
Moody’s
: Moody’s Investors Service,
Inc., or any successor thereto. If Moody’s 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 Moody’s Investors Service, Inc., 99 Church Street,
New York, New York 10007, Attention: Residential Pass-Through
Monitoring, or such other address as Moody’s may hereafter
furnish to the Depositor or the Master Servicer.
Mortgage : The mortgage, deed of trust or other
instrument creating a first lien on an estate in fee simple or
leasehold interest in real property securing a Mortgage
Note.
Mortgage File
: The mortgage documents listed in
Section 2.01 pertaining to a particular Mortgage Loan and any
additional documents delivered to the Trustee to be added to the
Mortgage File pursuant to this Agreement.
Mortgage Loan Schedule
: The list of Mortgage Loans (as
from time to time amended by the Master Servicer to reflect the
addition of Substitute Mortgage Loans and the deletion of Deleted
Mortgage Loans pursuant to the provisions of this Agreement)
transferred to the Trustee as part of the Trust Fund and from time
to time subject to this Agreement, attached to this Agreement as
Schedule I, setting forth the following information with respect to
each Mortgage Loan:
|
|
(i)
|
the loan number;
|
|
|
(ii)
|
[reserved];
|
|
(iii) the
Mortgagor’s name and the street address of the Mortgaged
Property, including the zip code;
|
|
(iv)
|
the maturity date;
|
|
|
|
(v)
|
the original principal balance;
|
|
|
|
(vi)
|
the Cut-off Date Principal Balance;
|
|
|
|
(vii)
|
the first payment date of the Mortgage
Loan;
|
|
|
|
(viii)
|
the Scheduled Payment in effect as of the
Cut-off Date;
|
|
|
(ix)
|
the Loan-to-Value Ratio at
origination;
|
|
|
|
|
|
|
|
|
|
|
(x) a
code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
(xi) a
code indicating whether the residential dwelling is either
(a) a detached or attached single family dwelling, (b) a
dwelling in a de minimis PUD, (c) a condominium unit or PUD
(other than a de minimis PUD) or (d) a two- to four-unit
residential property or (e) a Cooperative Unit;
|
|
(xii)
|
the Mortgage Rate as of the Cut-off
Date;
|
|
|
|
(xiii)
|
the initial Payment Adjustment Date for each
Mortgage Loan;
|
(xiv) a code
indicating whether the Mortgage Loan is a Lender PMI Mortgage Loan
and, in the case of any Lender PMI Mortgage Loan, a percentage
representing the amount of the related interest premium charged to
the borrower;
|
|
(xv)
|
the purpose for the Mortgage Loan;
|
(xvi) the
type of documentation program pursuant to which the Mortgage Loan
was originated;
(xvii) a code
indicating whether the Mortgage Loan is a Countrywide Mortgage Loan
or a Park Granada Mortgage Loan;
|
|
(xviii)
|
[reserved];
|
|
|
|
(xix)
|
the direct servicer of such Mortgage Loan as of
the Cut-off Date;
|
(xx) a
code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
and
(xxi) with
respect to each Mortgage Loan, the Gross Margin, the Mortgage
Index, the Maximum Mortgage Rate, the Minimum Mortgage Rate, the
first Adjustment Date, the Payment Adjustment Date and, if
applicable, the Maximum Negative Amortization for such Mortgage
Loan.
Such schedule shall also set forth
the total of the amounts described under (iv) and (v) above for all
of the Mortgage Loans.
Mortgage Loans
: Such of the mortgage loans as from
time to time are transferred and assigned to the Trustee pursuant
to the provisions of this Agreement and that are held as a part of
the Trust Fund (including any REO Property), the mortgage loans so
held being identified in the Mortgage Loan Schedule,
notwithstanding foreclosure or other acquisition of title of the
related Mortgaged Property.
Mortgage Note
: The original executed note or
other evidence of indebtedness evidencing the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Pool
: The aggregate of the Mortgage
Loans identified in the Mortgage Loan Schedule.
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 Deferred Interest
: With respect to each Distribution
Date, the greater of (a) the excess of Deferred Interest on the
Mortgage Loans for the related Due Period over all Principal
Prepayments on the Mortgage Loans during the Prepayment Period
related to such Distribution Date and Subsequent Recoveries on the
Mortgage Loans during the prior calendar month and (b)
zero.
Net Prepayment Interest
Shortfalls : As to any
Distribution Date, the excess of the amount of the aggregate
Prepayment Interest Shortfalls during the related Prepayment Period
over the Compensating Interest and Distribution Date.
Net Rate Carryover
: For any Class of Offered
Certificates (other than the Class A-R Certificates) and any
Distribution Date, the sum of (A) the excess of (i) the amount of
interest that such Class would otherwise have accrued for such
Distribution Date had the applicable Pass-Through Rate for such
Class not been determined based on the applicable Net WAC Cap (up
to the Maximum Rate), over (ii) the amount of interest such Class
accrued on such Distribution Date based on the lesser of the Net
WAC Cap (up to the Maximum Rate)and (B) the Net Rate Carryover for
such Class for all previous Distribution Dates not previously paid
pursuant to Section 4.02(d), together with interest thereon at the
then applicable Pass-Through Rate for such Class, without giving
effect to the applicable Net WAC Cap or the Maximum
Rate.
Net WAC Cap
: For each Distribution Date, the
Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans,
adjusted for the related Accrual Period minus, for the first
Distribution Date only, the product of (i) the Pass-Through Rate on
the Class A-IO Certificates and (b) a fraction, the numerator of
which is the Notional Balance of the Class A-IO Certificates and
the denominator of which is the Stated Principal Balance of the
Mortgage Loans as of the first day of the related Due Period,
adjusted to an effective rate reflecting the calculation of
interest on the basis of the actual number of days elapsed during
the related interest Accrual Period and a 360-day year. For federal
income tax purposes, the foregoing shall be expressed as the
weighted average of the Uncertificated REMIC I Pass-Through Rate on
the REMIC I Regular Interests (other than REMIC I Regular Interest
LT-A-IO, weighted on the basis of the Uncertificated Principal
Balance of each such REMIC I Regular Interest.
NIM Insurer:
Any insurer guarantying at the
request of CHL certain payments under notes backed or secured by
the Class C or Class P Certificates.
Non-Delay Certificates
: As specified in the Preliminary
Statement.
Nonrecoverable Advance
: Any portion of an Advance
previously made or proposed to be made by the Master Servicer that,
in the good faith judgment of the Master Servicer, will not be
ultimately recoverable by the Master Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final
Distribution : The notice
to be provided pursuant to Section 9.02 to the effect that
final distribution on any of the Certificates shall be made only
upon presentation and surrender thereof.
Notional Amount
: With respect to the Class A-IO
Certificates and the Accrual Period related to each Distribution
Date, an amount equal to the lesser of (a) the related notional
amount set forth in the table below and (b) the outstanding
principal balance of the Mortgage Loans as of the Due Date in the
month preceding the month of such Distribution Date (after giving
effect to unscheduled receipts of principal in the Prepayment
Period related to that prior Due Date). On each Distribution Date
after the December 2005 Distribution Date, the Notional Balance
will be zero.
Month of Distribution
Date
|
|
|
December 2005
|
$379,910,436
|
|
January 2006 and thereafter
|
$0
|
For federal income tax purposes, the
Class A-IO Certificates will not have a Notional Balance, but will
be entitled to 100% of amounts distributed on REMIC I Regular
Interest LT-A-IO.
With respect to the Class C
Certificates and the Accrual Period related to each Distribution
Date, the aggregate amount of the Uncertificated Principal Balance
of the REMIC I Regular Interests other than REMIC I Regular
Interest LT-P, REMIC I Regular Interest LT-R and REMIC I Regular
Interest LT-A-IO.
Notional Amount
Certificates : As
specified in the Preliminary Statement.
OC Floor : An amount equal to 0.50% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
Offered Certificates
: As specified in the Preliminary
Statement.
Officer’s
Certificate : A
certificate (i) in the case of the Depositor, signed by the
Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor, (ii) in the case of the Master
Servicer, signed by the President, an Executive Vice President, a
Vice President, an Assistant Vice President, the Treasurer, or one
of the Assistant Treasurers or Assistant Secretaries of Countrywide
GP, Inc., its general partner or (iii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as
required by this Agreement.
One-Year LIBOR
: As of any date of determination,
the per annum rate equal to the average of the London interbank
offered rates for one-year U.S. dollar deposits in the London
market, generally as set forth in either The Wall Street
Journal or some other source generally accepted in the
residential mortgage loan origination business and specified in the
related Mortgage Note, or, if such rate ceases to be published in
The Wall Street Journal or becomes unavailable for any
reason, then based upon a new index selected by the Master
Servicer, based on comparable information, in each case, as most
recently announced as of either 45 days prior to, or the first
business day of the month immediately preceding the month of, such
Adjustment Date.
Opinion of Counsel
: A written opinion of counsel, who
may be counsel for a Seller, the Depositor or the Master Servicer,
including, in-house counsel, reasonably acceptable to the Trustee;
provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact
be independent of a Seller, the Depositor and the Master Servicer,
(ii) not have any direct financial interest in a Seller, the
Depositor or the Master Servicer or in any affiliate thereof, and
(iii) not be connected with a Seller, the Depositor or the Master
Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar
functions.
Optional Termination
Date : The first
Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than or equal to 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
Original Mortgage Loan
: The mortgage loan refinanced in
connection with the origination of a Refinancing Mortgage
Loan.
Originator
: Impac Funding
Corporation.
OTS : The Office of Thrift Supervision.
Outside Reference Date
: As to any Interest Accrual Period
for the COFI Certificates, the close of business on the tenth day
thereof.
Outstanding
: With respect to the Certificates
as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have
been executed and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage
Loan : As of any Due
Date, a Mortgage Loan with a Stated Principal Balance greater than
zero, which was not the subject of a Principal Prepayment in Full
prior to the end of the related Prepayment Period and which did not
become a Liquidated Mortgage Loan prior to the end of the related
Prepayment Period.
Overcollateralization Target
Amount : With respect to
any Distribution Date (a) prior to the Stepdown Date, an amount
equal to 1.30% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date and (b) on or after the
Stepdown Date, the greater of (i) (x) for any Distribution Date on
or after the Stepdown Date but prior to the Distribution Date in
December 2011, an amount equal to 3.25% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the
month of that Distribution Date (after giving effect to principal
prepayments received in the related Prepayment Period) and (y) for
any Distribution Date on or after the Stepdown Date and on or after
the Distribution Date in December 2011, an amount equal to 2.60% of
the aggregate Stated Principal Balance of the Mortgage Loans as of
the Due Date in the month of that Distribution Date (after giving
effect to principal prepayments received in the related Prepayment
Period) and (ii) the OC Floor; provided, however, that if a Trigger
Event is in effect on any Distribution Date, the
Overcollateralization Target Amount will be the
Overcollateralization Target Amount as in effect for the prior
Distribution Date. Notwithstanding the foregoing, on and after any
Distribution Date following the reduction of the aggregate
Certificate Principal Balance of the Offered Certificates (other
than the Class A-R Certificates) to zero, the Overcollateralization
Target Amount shall be zero.
Ownership Interest
: As to any Residual Certificate,
any ownership interest in such Certificate including any interest
in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or
beneficial.
Park Granada
: Park Granada LLC, a Delaware
limited liability company, and its successors and assigns, in its
capacity as the seller of the Park Granada Mortgage Loans to the
Depositor.
Park Granada Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule for which
Park Granada is the applicable Seller.
Park Monaco
: Park Monaco Inc., a Delaware
corporation, and its successors and assigns, in its capacity as the
seller of the Park Monaco Mortgage Loans to the
Depositor.
Park Monaco Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule for which
Park Monaco is the applicable Seller.
Park Sienna
: Park Sienna LLC, a Delaware
limited liability company, and its successors and assigns, in its
capacity as the seller of the Park Sienna Mortgage Loans to the
Depositor.
Park Sienna Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule for which
Park Sienna is the applicable Seller.
Pass-Through Margin
: With respect to the Interest
Accrual Period for any Distribution Date and Class of LIBOR
Certificates, the per annum rate indicated in the following
table:
|
Class
|
Pass-Through Margin
(1)
|
Pass-Through Margin
(2)
|
|
Class A-1
|
0.300%
|
0.600%
|
|
Class A-2
|
0.350%
|
0.700%
|
|
Class A-3
|
0.440%
|
0.880%
|
|
Class M-1
|
0.800%
|
1.200%
|
|
Class M-2
|
1.650%
|
2.475%
|
|
Class M-3
|
2.000%
|
3.000%
|
|
Class M-4
|
2.000%
|
3.000%
|
|
Class M-5
|
2.000%
|
3.000%
|
|
|
|
|
|
(1)
|
For the Interest Accrual Period
related to any Distribution Date occurring on or prior to the
related Optional Termination Date.
|
|
(2)
|
For the Interest Accrual Period
related to any Distribution Date occurring after the related
Optional Termination Date.
|
Pass-Through Rate
: With respect to any Interest
Accrual Period and each Class of LIBOR Certificates the least of
(x) LIBOR for such Interest Accrual Period plus the Pass-Through
Margin for such Class and Interest Accrual Period, (y) the
applicable Net WAC Cap for such Class and (z) the Maximum Rate.
With respect to the Class A-IO Certificates and each Accrual Period
to and including the Accrual Period related to the Distribution
Date in December 2005, a per annum rate equal to 2.70% and with
respect to the Accrual Period related to the Distribution Date in
January 2006 and thereafter, 0%. For federal income tax purposes,
the Class A-IO Certificates will not have Pass-Through Rate, but
will be entitled to 100% of amounts distributed on REMIC I Regular
Interest LT-A-IO. With respect to the Class C Certificates, a rate
per annum equal to the percentage equivalent of a fraction, the
numerator of which is the sum of the amounts calculated pursuant to
clauses (A) through (L) below, and the denominator of which is the
Uncertificated Principal Balance of the REMIC I Regular Interests
(other than REMIC I Regular Interest LT-A-IO, REMIC I Regular
Interest LT-R and REMIC I Regular
Interest LT-P). For purposes of
calculating the Pass Through Rate for the Class C Certificates, the
numerator is equal to the sum of the following
components:
(A) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-AA minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC I Regular Interest
LT-AA;
(B) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-A-1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-A-1;
(C) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-A-2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-A-2;
(D) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-A-3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-A-3;
(E) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-M-1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-M-1;
(F) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-M-2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-M-2;
(G) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-M-3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-M-3;
(H) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-M-4 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-M-4;
(I) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-M-5 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LT-M-5;
(J) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-ZZ minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC I Regular Interest
LT-ZZ;
|
|
(K)
|
100% of amounts distributed on REMIC I Regular
Interest LT-P; and
|
|
|
(L)
|
100% of amounts distributed on REMIC I Regular
Interest LT-R.
|
|
Payment Adjustment
Date : For each Mortgage
Loan, the date specified in the related Mortgage Note as the annual
date on which the related Scheduled Payment will be
adjusted.
Percentage Interest
: As to any Certificate, the
percentage interest evidenced thereby in distributions required to
be made on the related Class, such percentage interest being set
forth on the face thereof or equal to the percentage obtained by
dividing the Denomination of such Certificate by the aggregate of
the Denominations of all Certificates of the same Class. With
respect to the Class C, Class P and Class A-R Certificates, the
portion of the Class evidenced thereby, expressed as a percentage,
as stated on the face of such Certificate.
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 Moody’s is not a Rating Agency) are then rated one of
the two highest long-term and the highest short-term ratings of
each Rating Agency for such securities, or such lower ratings as
will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency;
(v) repurchase
obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (iv) above;
(vi) units
of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by
Moody’s) and restricted to obligations issued or guaranteed
by the United States of America or entities whose obligations are
backed by the full faith and credit of the United States of America
and repurchase agreements collateralized by such obligations;
and
(vii) such
other relatively risk free investments bearing interest or sold at
a discount acceptable to each Rating Agency as will not result in
the downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency, and reasonably acceptable
to the NIM Insurer, as evidenced by a signed writing delivered by
the NIM Insurer;
provided, that no such instrument
shall be a Permitted Investment if such instrument evidences the
right to receive interest only payments with respect to the
obligations underlying such instrument.
Permitted Transferee
: Any person other than (i) the
United States, any State or political subdivision thereof, or any
agency or instrumentality of any of the foregoing, (ii) a foreign
government, International Organization or any agency or
instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section
521 of the Code) which is exempt from tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income) on any excess inclusions (as
defined in Section 860E(c)(1) of the Code) with respect to any
Residual Certificate, (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an
“electing large partnership” as defined in Section 775
of the Code, (vi) a Person that is not a citizen or resident of the
United States, a corporation, partnership, or other entity created
or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate or trust whose
income from sources without the United States is includible in
gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or
business within the United States or a trust if a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons
have the authority to control all substantial decisions of the
trust unless such Person has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form W-8ECI
or any applicable successor form, and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that
the Transfer of an Ownership Interest in a Residual Certificate to
such Person may cause any REMIC created under this Agreement to
fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms “United States,”
“State” and “International Organization”
shall have the meanings set forth in Section 7701 of the Code or
successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not
selected by such government unit.
Person : Any individual, corporation, partnership,
joint venture, association, limited liability company, joint-stock
company, trust, unincorporated organization or government, or any
agency or political subdivision thereof.
Physical Certificate
: As specified in the Preliminary
Statement.
Pool Stated Principal
Balance : The aggregate
of the Stated Principal Balances of the Outstanding Mortgage
Loans.
Prepayment Charge
: With respect to any Mortgage Loan,
the charges or premiums, if any, due in connection with a full or
partial prepayment of such Mortgage Loan within the related
Prepayment Charge Period in accordance with the terms
thereof.
Prepayment Charge
Period : With respect to
any Mortgage Loan, the period of time during which a Prepayment
Charge may be imposed.
Prepayment Charge
Schedule : As of the Cut
off Date with respect to each Mortgage Loan, a list attached hereto
as Schedule VII (including the prepayment charge summary attached
thereto), setting forth the following information with respect to
each Prepayment Charge:
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(i)
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the Mortgage Loan identifying number;
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(ii)
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a code indicating the type of Prepayment
Charge;
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(iii)
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the state of origination of the related Mortgage
Loan;
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(iv) the
date on which the first monthly payment was due on the related
Mortgage Loan;
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(v)
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the term of the related Prepayment Charge;
and
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(vi)
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the principal balance of the related Mortgage
Loan as of the Cut off Date.
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As of the Closing Date, the
Prepayment Charge Schedule shall contain the necessary information
for each Mortgage Loan. The Prepayment Charge Schedule shall be
amended from time to time by the Master Servicer in accordance with
the provisions of this Agreement and a copy of each related
amendment shall be furnished by the Master Servicer to the Class P
and Class C Certificateholders and the NIM Insurer.
Prepayment Interest
Excess : As to any
Principal Prepayment received by the Master Servicer from the first
day through the fifteenth day of any calendar month (other than the
calendar month in which the Cut-off Date occurs), all amounts paid
by the related Mortgagor in respect of interest on such Principal
Prepayment. All Prepayment Interest Excess shall be paid to the
Master Servicer as additional master servicing
compensation.
Prepayment Interest
Shortfall : As to any
Distribution Date, Mortgage Loan and Principal Prepayment received
on or after the sixteenth day of the month preceding the month of
such Distribution Date (or, in the case of the first Distribution
Date, on or after December 1, 2005) and on or before the last day
of the month preceding the month of such Distribution Date, the
amount, if any, by which one month’s interest at the related
Mortgage Rate, net of the related Master Servicing Fee Rate, on
such Principal Prepayment exceeds the amount of interest paid in
connection with such Principal Prepayment.
Prepayment Period
: As to any Distribution Date and
the related Due Date, the period from the 16 th day of
the calendar month immediately preceding the month in which the
Distribution Date occurs (or, in the case of the first Distribution
Date, from December 1, 2005) through the 15 th day of
the calendar month in which the Distribution Date
occurs.
Primary Insurance
Policy : Each policy of
primary mortgage guaranty insurance or any replacement policy
therefor with respect to any Mortgage Loan.
Prime Rate
: The prime commercial lending rate
of The Bank of New York, as publicly announced to be in effect from
time to time. The Prime Rate shall be adjusted automatically,
without notice, on the effective date of any change in such prime
commercial lending rate. The Prime Rate is not necessarily The Bank
of New York’s lowest rate of interest.
Principal Distribution
Amount : With respect to
each Distribution Date, the excess, if any of (1) the aggregate
Class Certificate Balance of the Certificates immediately prior to
such Distribution Date, over (2) the excess, if any, of (a)
the aggregate Stated Principal Balance of the Mortgage Loans as of
the Due Date in the month of that Distribution Date (after giving
effect to Principal Prepayments received in the related Prepayment
Period), over (b) the Overcollateralization Target Amount
for such Distribution Date.
Principal Prepayment
: Any payment of principal by a
Mortgagor on a Mortgage Loan that is received in advance of its
scheduled Due Date and is not accompanied by an amount representing
scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment. Partial Principal
Prepayments shall be applied by the Master Servicer in accordance
with the terms of the related Mortgage Note.
Principal Prepayment in
Full : Any Principal
Prepayment made by a Mortgagor of the entire principal balance of a
Mortgage Loan.
Principal Relocation
Payments : Not
applicable.
Principal Remittance
Amount : As to any
Distribution Date, (x) the sum, without duplication, of (a) the
principal portion of each Scheduled Payment (without giving effect
to any reductions thereof caused by any Debt Service Reductions or
Deficient Valuations) due on each Mortgage Loan (other than a
Liquidated Mortgage Loan) on the related Due Date, (b) the
principal portion of the Purchase Price of each Mortgage Loan that
was repurchased by the applicable Seller or purchased by the Master
Servicer pursuant to this Agreement as of such Distribution Date,
(c) the Substitution Adjustment Amount in connection with any
Deleted Mortgage Loan received with respect to such Distribution
Date, (d) any Insurance Proceeds or Liquidation Proceeds allocable
to recoveries of principal of Mortgage Loans that are not yet
Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to
each Mortgage Loan that became a Liquidated Mortgage Loan during
the related Prepayment Period, the amount of the Liquidation
Proceeds allocable to principal received during such Prepayment
Period with respect to such Mortgage Loan, (f) all Principal
Prepayments on the Mortgage Loans received during the related
Prepayment Period and (g) any Subsequent Recoveries on the Mortgage
Loans received during the related Prepayment Period minus
(y) all non-recoverable Advances on the Mortgage Loans relating to
principal and certain expenses reimbursable pursuant to Section
6.03 and reimbursed since the immediately preceding Due
Date.
Principal Reserve Fund
: The separate Eligible Account
created and initially maintained by the Trustee pursuant to Section
3.05(c) in the name of the Trustee for the benefit of the Holders
of the Class A-R and Class P Certificates and designated “The
Bank of New York in
trust for registered holders of
CWALT, Inc., Alternative Loan Trust 2005-IM1, Mortgage Pass-Through
Certificates, Series 2005-IM1.” Funds in the Principal
Reserve Fund shall be held in trust for the Holders of the Class
A-R and Class P Certificates for the uses and purposes set forth in
this Agreement.
Private Certificate
: As specified in the Preliminary
Statement.
Proprietary Lease
: With respect to any Cooperative
Unit, a lease or occupancy agreement between a Cooperative
Corporation and a holder of related Coop Shares.
Prospectus
: The prospectus dated October 25,
2005 generally relating to mortgage pass-through certificates to be
sold by the Depositor.
Prospectus Supplement
: The prospectus supplement dated
December 8, 2005 relating to the Offered Certificates.
PUD : Planned Unit Development.
Purchase Price
: With respect to any Mortgage Loan
required to be purchased by the applicable Seller pursuant to
Section 2.02 or 2.03 or purchased at the option of the Master
Servicer pursuant to Section 3.11, an amount equal to the sum
of (i) 100% of the unpaid principal balance of the Mortgage
Loan on the date of such purchase, (ii) accrued interest
thereon at the applicable Mortgage Rate (or at the applicable
Adjusted Mortgage Rate if (x) the purchaser is the Master
Servicer or (y) if the purchaser is Countrywide and
Countrywide is an affiliate of the Master Servicer) from the date
through which interest was last paid by the Mortgagor to the Due
Date in the month in which the Purchase Price is to be distributed
to Certificateholders and (iii) costs and damages incurred by the
Trust Fund in connection with a repurchase pursuant to Section 2.03
that arises out of a violation of any predatory or abusive lending
law with respect to the related Mortgage Loan.
Qualified 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 in this Agreement to a given rating category of
a Rating Agency shall mean such rating category without giving
effect to any modifiers.
Realized Loss
: With respect to each Liquidated
Mortgage Loan, an amount (not less than zero or more than the
Stated Principal Balance of the Mortgage Loan) as of the date of
such liquidation, equal to (i) the Stated Principal Balance of
the Liquidated Mortgage Loan as of the date of such liquidation,
plus (ii) interest at the Adjusted Net Mortgage Rate from the
Due Date as to which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date in the month
in which Liquidation Proceeds are required to be distributed on the
Stated Principal Balance of such Liquidated Mortgage Loan from time
to time, minus (iii) the Liquidation Proceeds, if any,
received during the month in which such liquidation occurred, to
the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan.
With respect to each Mortgage Loan which has become the subject of
a Deficient Valuation, if the principal amount due under the
related Mortgage Note has been reduced, the difference between the
principal balance of the Mortgage Loan outstanding immediately
prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. 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.
To the extent the Master Servicer
receives Subsequent Recoveries with respect to any Mortgage Loan,
the amount of Realized Losses with respect to that Mortgage Loan
will be reduced by the amount of such Subsequent
Recoveries.
Recognition Agreement
: With respect to any Cooperative
Loan, an agreement between the Cooperative Corporation and the
originator of such Mortgage Loan which establishes the rights of
such originator in the Cooperative Property.
Record Date
: With respect to any Distribution
Date and the Certificates other than the LIBOR Certificates, the
last Business Day of the month preceding the month of a
Distribution Date. With respect to any Distribution Date and the
LIBOR Certificates, the Business Day immediately preceding such
Distribution Date, or if such Certificates are no longer Book-Entry
Certificates, the last Business Day of the month preceding the
month of such Distribution Date.
Reference Bank
: As defined in Section
4.08(b).
Refinancing Mortgage
Loan : Any Mortgage Loan
originated in connection with the refinancing of an existing
mortgage loan.
Regular Certificates
: As specified in the Preliminary
Statement.
Relief Act
: The Servicemembers Civil Relief
Act and any similar state or local laws.
REMIC : A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
REMIC I : The segregated pool of assets subject hereto,
constituting a portion of the primary trust created hereby and to
be administered hereunder, with respect to which a separate REMIC
election is to be made, consisting of: (i) the Mortgage Loans and
the related Mortgage Files; (ii) all payments on and collections in
respect of the Mortgage Loans due after the Cut-off Date (other
than Monthly Payments due in Novemberr 2005 and reflected in the
Cut-off Date
Principal Balance) as shall be on
deposit in the Certificate Account and identified as belonging to
the Trust Fund; (iii) property which secured a Mortgage Loan and
which has been acquired for the benefit of the Certificateholders
by foreclosure or deed in lieu of foreclosure; (iv) Required
Insurance Policies pertaining to the Mortgage Loans, if any; and
(v) all proceeds of clauses (i) through (iv) above. The Carryover
Reserve Fund will not be an asset of REMIC I.
REMIC I Interest Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
the aggregate Uncertificated Principal Balance of the REMIC I
Regular Interests then outstanding (other than REMIC I Regular
Interest LT-A-IO, REMIC I Regular Interest LT-P and REMIC I Regular
Interest LT-R) and (ii) the Uncertificated Pass-Through Rate for
REMIC I Regular Interest LT-AA minus the Marker Rate, divided by
(b) 12.
REMIC I Overcollateralized
Amount : With respect to
any date of determination, (i) 1.00% of the aggregate
Uncertificated Principal Balances of the REMIC I Regular Interests
(other than REMIC I Regular Interest LT-A-IO) minus (ii) the
Uncertificated Principal Balances of REMIC I Regular Interest
LT-A-1, REMIC I Regular Interest LT-A-2, REMIC I Regular Interest
LT-A-3, REMIC I Regular Interest LT-M-1, REMIC I Regular Interest
LT-M-2, REMIC I Regular Interest LT-M-3, REMIC I Regular Interest
LT-M-4, REMIC I Regular Interest LT-M-5, REMIC I Regular Interest
LT-P and REMIC I Regular Interest LT-R in each case as of such date
of determination.
REMIC I Overcollateralization
Target Amount : 1.00% of
the Overcollateralization Target Amount.
REMIC I Principal Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans then
outstanding and (ii) 1 minus a fraction, the numerator of which is
two times the sum of the Uncertificated Principal Balances of REMIC
I Regular Interest LT-A-1, REMIC I Regular Interest LT-A-2, REMIC I
Regular Interest LT-A-3, REMIC I Regular Interest LT-M-1, REMIC I
Regular Interest LT-M-2, REMIC I Regular Interest LT-M-3, REMIC I
Regular Interest LT-M-4, REMIC I Regular Interest LT-M-5 and the
denominator of which is the sum of the Uncertificated Principal
Balances of REMIC I Regular Interest LT-A-1, REMIC I Regular
Interest LT-A-2, REMIC I Regular Interest LT-A-3, REMIC I Regular
Interest LT-M-1, REMIC I Regular Interest LT-M-2, REMIC I Regular
Interest LT-M-3, REMIC I Regular Interest LT-M-4, REMIC I Regular
Interest LT-M-5 and REMIC I Regular Interest LT-ZZ.
REMIC I Regular
Interests : REMIC I
Regular Interest LT-AA, REMIC I Regular Interest LT-A-1, REMIC I
Regular Interest LT-A-2, REMIC I Regular Interest LT-A-3, REMIC I
Regular Interest LT-A-IO, REMIC I Regular Interest LT-M-1, REMIC I
Regular Interest LT-M-2, REMIC I Regular Interest LT-M-3, REMIC I
Regular Interest LT-M-4, REMIC I Regular Interest LT-M-5, REMIC I
Regular Interest LT-ZZ, REMIC I Regular Interest LT-P and REMIC I
Regular Interest LT-R.
REMIC I Regular Interest
LT-AA : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-A-1 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-A-2 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-A-3 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-A-IO : A regular
interest in REMIC I that is held as an asset of REMIC II, and that
has such other terms as are described herein. REMIC I Regular
Interest A-IO shall accrue interest as provided herein and shall
not be entitled to distributions of principal.
REMIC I Regular Interest
LT-M-1 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-M-2 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-M-3 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-M-4 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-M-5 : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest
LT-ZZ : A regular
interest in REMIC I that is held as an asset of REMIC II, that has
an initial principal balance equal to the related Uncertificated
Principal
Balance, that bears interest at the
related Uncertificated REMIC I Pass-Through Rate, and that has such
other terms as are described herein.
REMIC I Regular Interest
LT-P : A regular interest
in REMIC I that is held as an asset of REMIC II, that has an
initial principal balance equal to the related Uncertificated
Principal Balance, and that has such other terms as are described
herein.
REMIC I Regular Interest
LT-R : A regular interest
in REMIC I that is held as an asset of REMIC II, that has an
initial principal balance equal to the related Uncertificated
Principal Balance, and that has such other terms as are described
herein.
REMIC I Regular Interest LT-ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the sum
of (a) the excess of (i) Uncertificated Accrued Interest calculated
with the Uncertificated Pass-Through Rate for REMIC I Regular
Interest LT-ZZ and an Uncertificated Principal Balance equal to the
excess of (x) the Uncertificated Principal Balance of REMIC I
Regular Interest LT-ZZ over (y) the REMIC I Overcollateralized
Amount, in each case for such Distribution Date, over (ii)
Uncertificated Accrued Interest on REMIC I Regular Interest LT-A-1,
REMIC I Regular Interest LT-A-2, REMIC I Regular Interest LT-A-3,
REMIC I Regular Interest LT-M-1, REMIC I Regular Interest LT-M-2,
REMIC I Regular Interest LT-M-3, REMIC I Regular Interest LT-M-4,
REMIC I Regular Interest LT-M-5, with the rate on each such REMIC I
Regular Interest subject to a cap equal to the Pass-Through Rate on
the Corresponding Certificate for the purpose of this
calculation.
REMIC II : The segregated pool of assets consisting of
all of the REMIC I Regular Interests conveyed in trust to the
Trustee, for the benefit of holders of the REMIC II Regular
Certificates and the Class R-3 Interest, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC II Regular
Certificates : Any of the
Class A-1, Class A-2, Class A-3, Class A-IO, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class C or Class P
Certificates.
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 the Master Servicer to the Trustee, substantially in the form of
Exhibits M and N to this Agreement, as appropriate.
Required Insurance
Policy : With respect to
any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Residual Certificates
: As specified in the Preliminary
Statement.
Responsible Officer
: When used with respect to the
Trustee, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, any Trust Officer or any other
officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also to
whom, with respect to a particular matter, such matter is referred
because of such officer’s knowledge of and familiarity with
the particular subject.
Rolling Sixty-Day Delinquency
Rate : With respect to
any Distribution Date on or after the Stepdown Date, the average of
the Sixty-Day Delinquency Rates and Distribution Date and the two
immediately preceding Distribution Dates.
S&P : Standard & Poor’s, a division of The
McGraw-Hill 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, 55 Water Street, New York, New York 10041, Attention:
Mortgage Surveillance Monitoring, or such other address as S&P
may hereafter furnish to the Depositor and the Master
Servicer.
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 in
this Agreement, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act
: The Securities Act of 1933, as
amended.
Seller : Countrywide, Park Granada, Park Monaco or Park
Sienna, as applicable.
Senior Certificates
: As specified in the Preliminary
Statement.
Senior Enhancement
Percentage : With respect
to a Distribution Date on and after the Stepdown Date, the fraction
(expressed as a percentage) (1) the numerator of which is the
excess of (a) the aggregate Stated Principal Balance of the
Mortgage Loans for the preceding Distribution Date over (b) (i)
before the Class Certificate Balances of the Senior Certificates
have been reduced to zero, the sum of the Class Certificate
Balances of the Senior Certificates, or (ii) after the Class
Certificate Balances of the Senior Certificates have been reduced
to zero, the Class Certificate Balance of the most senior Class of
Subordinated Certificates outstanding as of the preceding Master
Servicer Advance Date and (2) the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans for the
preceding Distribution Date.
Senior Principal Distribution
Amount : For any
Distribution Date, the excess of:
(1) the
aggregate Class Certificate Balance of the Senior Certificates
immediately prior to such Distribution Date, over
(2) the
lesser of (A) the product of (i) (x) 71.25%, on any Distribution
Date on or after the Stepdown Date and prior to the Distribution
Date in December 2011 or (y) 77.00%, on any Distribution Date on or
after the Stepdown Date and on or after the Distribution Date in
December 2011 and (ii) the aggregate Stated Principal Balance of
the Mortgage Loans as of the Due Date in the month of that
Distribution Date (after giving effect to principal prepayments
received in the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date
in the month of that Distribution Date (after giving effect to
principal prepayments received in the related Prepayment Period)
minus the OC Floor.
Servicing Advances
: All customary, reasonable and
necessary “out of pocket” costs and expenses incurred
in the performance by the Master Servicer of its servicing
obligations, including, but not limited to, the cost of
(i) the preservation, restoration and protection of a
Mortgaged Property, (ii) any expenses reimbursable to the
Master Servicer pursuant to Section 3.11 and any enforcement
or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and
(iv) compliance with the obligations under
Section 3.09.
Servicing Officer
: Any officer of the Master Servicer
involved in, or responsible for, the administration and servicing
of the Mortgage Loans whose name and facsimile signature appear on
a list of servicing officers furnished to the Trustee by the Master
Servicer on the Closing Date pursuant to this Agreement, as such
list may from time to time be amended.
Sixty-Day Delinquency
Rate : With respect to
any Distribution Date on or after the Stepdown Date, a fraction,
expressed as a percentage, the numerator of which is the aggregate
Stated Principal Balance for such Distribution Date of all Mortgage
Loans 60 or more days delinquent as of the close of business on the
last day of the calendar month preceding such Distribution Date
(including Mortgage Loans in foreclosure, bankruptcy and REO
Properties) and the denominator of which is the aggregate Stated
Principal Balance for such Distribution Date of the Mortgage Loans
as of the related Due Date (after giving effect to Principal
Prepayments, the principal portion of any Liquidation Proceeds and
any Subsequent Recoveries received in the related Prepayment
Period).
Startup Day
: The Closing Date.
Stated Principal
Balance : As to any
Mortgage Loan and Due Date, the unpaid principal balance of such
Mortgage Loan as of such Due Date, as specified in the amortization
schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar
waiver or grace period) after giving effect to the sum of: (i) any
previous partial Principal Prepayments and the payment of principal
due on such Due Date, irrespective of any delinquency in payment by
the related Mortgagor, and (ii) Liquidation Proceeds allocable to
principal (other than with respect to any Liquidated Mortgage Loan)
received in the prior calendar month and Principal Prepayments
received through the last day of the related Prepayment Period, in
each case, with respect to that Mortgage Loan.
Stepdown Date
: The earlier to occur of: (1) the
Distribution Date on which the aggregate Class Certificate Balance
of the Senior Certificates is reduced to zero, and (2) the later to
occur of (x) the Distribution Date in December 2008 and (y) the
first Distribution Date on which the aggregate Class Certificate
Balance of the Senior Certificates immediately prior to
that
Distribution Date, is less than or
equal to (a) on any Distribution Date prior to the Distribution
Date in December 2011, 71.25% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Due Date in the month of
the current Distribution Date (after giving effect to Principal
Prepayments, the principal portion of any Liquidation Proceeds and
any Subsequent Recoveries received in the Prepayment Period related
to that Due Date) and (b) on any Distribution Date on or after the
Distribution Date in December 2011, 77.00% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the
month of the current Distribution Date (after giving effect to
Principal Prepayments, the principal portion of any Liquidation
Proceeds and any Subsequent Recoveries received in the Prepayment
Period related to that Due Date).
Stepdown Target Subordination
Percentage : With respect
to any Class of Subordinated Certificates, the respective
percentage indicated in the following table:
|
|
Stepdown Target
Subordination
Percentage(1)
|
Stepdown Target
Subordination
Percentage (2)
|
|
Class M-1
|
17.625%
|
14.100%
|
|
Class M-2
|
9.750%
|
7.800%
|
|
Class M-3
|
5.250%
|
4.200%
|
|
Class M-4
|
4.500%
|
3.600%
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Class M-5
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3.250%
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2.600%
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(1) For any Distribution Date on or
after the Distribution Date in December 2008 and prior to the
Distribution Date in December 2011.
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(2) For any Distribution Date on or
after the Distribution Date in December 2011.
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Streamlined Documentation
Mortgage Loan : Any
Mortgage Loan originated pursuant to Countrywide’s
Streamlined Loan Documentation Program then in effect. For the
purposes of this Agreement, a Mortgagor is eligible for a mortgage
pursuant to Countrywide’s Streamlined Loan Documentation
Program if that Mortgagor is refinancing an existing mortgage loan
that was originated or acquired by Countrywide where, among other
things, the mortgage loan has not been more than 30 days delinquent
in payment during the previous twelve month period.
Subordinated
Certificates : As
specified in the Preliminary Statement.
Subordinated Class Principal
Distribution Amount :
With respect to any Class of Subordinated Certificates and
Distribution Date will equal the excess of: (1) the sum of:
(a) the aggregate Class Certificate Balance of the Senior
Certificates (after taking into account the distribution of the
Senior Principal Distribution Amount for such Distribution Date),
(b) the aggregate Class Certificate Balance of any Class(es)
of Subordinated Certificates that are senior to the subject Class
(in each case, after taking into account distribution of the
Subordinated Class Principal Distribution Amount(s) for such more
senior Class(es) of Certificates for such Distribution Date), and
(c) the Class Certificate Balance of the subject Class of
Subordinated Certificates immediately prior to such Distribution
Date over (2) the lesser of (a) the product of
(x) 100% minus the Stepdown Target Subordination Percentage
for the subject Class of Certificates and (y) the aggregate
Stated Principal Balance of the Mortgage for such Distribution Date
and (b) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution
Date minus the OC Floor; provided,
however, that if such Class of Subordinated Certificates is the
only Class of Subordinated Certificates outstanding on such
Distribution Date, that Class will be entitled to receive the
entire remaining Principal Distribution Amount until its Class
Certificate Balance is reduced to zero.
Subsequent Periodic Rate
Cap : As to each Mortgage
Loan and the related Mortgage Note, the provision therein that
limits permissible increases and decreases in the Mortgage Rate on
the each Adjustment Date after the first Adjustment Date for that
Mortgage Loan to not more than the amount set forth
therein.
Subsequent Recoveries
: As to any Distribution Date, with
respect to a Liquidated Mortgage Loan that resulted in a Realized
Loss in a prior calendar month, unexpected amounts received by the
Master Servicer (net of any related expenses permitted to be
reimbursed pursuant to Section 3.08) specifically related to such
Liquidated Mortgage Loan after the classification of such Mortgage
Loan as a Liquidated Mortgage Loan.
Subservicer
: Any person to whom the Master
Servicer has contracted for the servicing of all or a portion of
the Mortgage Loans pursuant to Section 3.02.
Substitute Mortgage
Loan : A Mortgage Loan
substituted by the applicable Seller for a Deleted Mortgage Loan
which must, on the date of such substitution, as confirmed in a
Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of
substitution, not in excess of, and not more than 10% less than the
Stated Principal Balance of the Deleted Mortgage Loan; (ii) be
accruing interest at a rate no lower than and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio no higher than that of the
Deleted Mortgage Loan; (iv) have a remaining term to maturity
no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; (v) have a Maximum Mortgage Rate no lower
than and not more than 1% per annum higher than, that of the
Deleted Mortgage Loan; (vi) have a Minimum Mortgage Rate specified
in its related mortgage note not more than 1% per annum higher or
lower than the Minimum Mortgage Rate of the Deleted Mortgage Loan;
(vii) have the same Mortgage Index and Mortgage Index reset period
as the Deleted Mortgage Loan and a Gross Margin not more than 1%
per annum higher or lower than that of the Deleted Mortgage Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage
Loan was a Cooperative Loan; (ix) if applicable, have the same
Maximum Negative Amortization, payment cap and recast provisions as
the Deleted Mortgage Loan; and (x) comply with each
representation and warranty set forth in
Section 2.03.
Substitution Adjustment
Amount : The meaning
ascribed to such term pursuant to Section 2.03.
Tax Matters Person
: The person designated as
“tax matters person” in the manner provided under
Treasury regulation § 1.860F-4(d) and Treasury regulation
§ 301.6231(a)(7)1. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person
Certificate : The
Class A-R Certificate with a Denomination of $0.01.
Terminator
: As defined in Section
9.01.
Transfer : Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Trigger Event
: With respect to a Distribution
Date on or after the Stepdown Date, the existence of either a
Delinquency Trigger Event or a Cumulative Loss Trigger Event with
respect to that Distribution Date.
Trust Fund
: The corpus of the trust created
under this Agreement consisting of (i) the Mortgage Loans and
all interest and principal received on or with respect thereto
after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance of the Mortgage Loans; (ii) the
Certificate Account, the Distribution Account, the Carryover
Reserve Fund; (iii) property that secured a Mortgage Loan and
has been acquired by foreclosure, deed-in-lieu of foreclosure or
otherwise; and (iv) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing.
Trustee : The Bank of New York and its successors and,
if a successor trustee is appointed under this Agreement, such
successor.
Trustee Advance Rate
: With respect to any Advance made
by the Trustee pursuant to Section 4.01(b), a per annum rate of
interest determined as of the date of such Advance equal to the
Prime Rate in effect on such date plus 5.00%.
Trustee Fee
: As to any Distribution Date, an
amount equal to one-twelfth of the Trustee Fee Rate multiplied by
the Pool Stated Principal Balance with respect to such Distribution
Date.
Trustee Fee Rate
: With respect to each Mortgage
Loan, 0.009% per annum.
Uncertificated Accrued
Interest : With respect
to each Uncertificated REMIC Regular Interest on each Distribution
Date, an amount equal to one month’s interest at the related
Uncertificated REMIC I Pass-Through Rate, on the Uncertificated
Principal Balance or Uncertificated Notional Amount, as applicable,
of such Uncertificated REMIC Regular Interest.
Uncertificated Notional
Amount : With respect to
REMIC I Regular Interest LT-A-IO and (i) the 1 st
Distribution Date, the aggregate Scheduled Principal Balance of the
Mortgage Loans and (ii) each Distribution Date thereafter,
$0.
Uncertificated Principal
Balance : With respect to
each REMIC Regular Interest (other than REMIC I Regular Interest
LT-A-IO), the principal amount of such REMIC Regular Interest
outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC regular
Interest (other than REMIC I Regular Interest LT-A-IO) shall equal
the amount set forth in the Preliminary Statement hereto as its
initial Uncertificated Principal Balance. On each Distribution
Date, the Uncertificated Principal Balance of each REMIC Regular
Interest shall be reduced by all distributions of principal made on
such REMIC Regular Interest on such Distribution Date and, if and
to the extent necessary and appropriate, shall be further reduced
on such Distribution Date by Realized Losses. The
Uncertificated
Principal Balance of each REMIC
Regular Interest shall never be less than zero. REMIC I Regular
Interest LT-A-IO will not have an Uncertificated Principal
Balance.
Uncertificated REMIC I
Pass-Through Rate : With
respect to REMIC I Regular Interest LT-AA, REMIC I Regular Interest
LT-A-1, REMIC I Regular Interest LT-A-2, REMIC I Regular Interest
LT-A-3, REMIC I Regular Interest LT-M-1, REMIC I Regular Interest
LT-M-2, REMIC I Regular Interest LT-M-3, REMIC I Regular Interest
LT-M-4, REMIC I Regular Interest LT-M-5, REMIC I Regular Interest
LT-ZZ, REMIC I Regular Interest LT-R and REMIC I Regular Interest
LT-P, and (i) the first Distribution Date, a per annum rate equal
to the excess of (a) the weighted average of the Net Mortgage Rates
of the Mortgage Loans as of the first day of the related Due
Period, weighted on the basis of the Stated Principal Balances as
of the first day of the related Due Period over (b) 2.700% and (ii)
thereafter, the weighted average of the Net Mortgage Rates of the
Mortgage Loans as of the first day of the related Due Period,
weighted on the basis of the Stated Principal Balances as of the
first day of the related Due Period. With respect to REMIC I
Regular Interest LT-A-IO, (i) for the first Distribution Date,
2.700% and (ii) thereafter, 0.00%.
Uncertificated REMIC Regular
Interests : The REMIC I
Regular Interests.
Underwriters
: As specified in the Preliminary
Statement.
Underwriter’s
Exemption : Prohibited
Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as
amended (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of
Labor.
Unpaid Realized Loss
Amount : For any Class of
Offered Certificates (other than the Class A-R Certificates), (x)
the portion of the aggregate Applied Realized Loss Amount
previously allocated to that Class remaining unpaid from prior
Distribution Dates minus (y) any increase in the Class Certificate
Balance of that Class due to the receipt of Subsequent Recoveries
to the Class Certificate Balance of that Class pursuant to Section
4.02(i).
Voting Rights
: The portion of the voting rights
of all of the Certificates which is allocated to any Certificate.
As of any date of determination, (a) 1% of all Voting Rights
shall be allocated to each Class of Notional Amount Certificates,
if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective
Percentage Interests), (b) 1% of all Voting Rights shall be
allocated to each of the Class A-R, Class C, and Class P
Certificates, and (c) the remaining Voting Rights (or 100% of the
Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of the remaining Classes of
Certificates in proportion to the Certificate Balances of their
respective Certificates on such date.
Weighted Average Adjusted Net
Mortgage Rate : As to any
Distribution Date, the weighted average of the Adjusted Net
Mortgage Rates of the Mortgage Loans, weighted on the basis of the
respective Stated Principal Balances of the Mortgage Loans as of
the first day of the related Due Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND
WARRANTIES
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SECTION 2.01.
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Conveyance of Mortgage Loans
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(a) Each
Seller concurrently with the execution and delivery hereof, hereby
sells, transfers, assigns, sets over and otherwise conveys to the
Depositor, without recourse, all its respective right, title and
interest in and to the related Mortgage Loans, including all
interest and principal received or receivable by such Seller, on or
with respect to the Mortgage Loans after the Cut-off Date and all
interest and principal payments on the related Mortgage Loans
received prior to the Cut-off Date in respect of installments of
interest and principal due thereafter, but not including payments
of principal and interest due and payable on such Mortgage Loans,
on or before the Cut-off Date. On or prior to the Closing Date,
Countrywide shall deliver to the Depositor or, at the
Depositor’s direction, to the Trustee or other designee of
the Depositor, the Mortgage File for each Mortgage Loan listed in
the Mortgage Loan Schedule (except that, in the case of the Delay
Delivery Mortgage Loans, (which may include Countrywide Mortgage
Loans, Park Granada Mortgage Loans, Park Monaco Mortgage Loans and
Park Sienna Mortgage Loans), such delivery may take place within
thirty (30) days following the Closing Date). Such delivery of the
Mortgage Files shall be made against payment by the Depositor of
the purchase price, previously agreed to by the Sellers and
Depositor, for the Mortgage Loans. With respect to any Mortgage
Loan that does not have a first payment date on or before the Due
Date in the month of the first Distribution Date, Countrywide shall
deposit into the Distribution Account on or before the Distribution
Account Deposit Date relating to the first applicable Distribution
Date, an amount equal to one month’s interest at the related
Adjusted Mortgage Rate on the Cut-off Date Principal Balance of
such Mortgage Loan.
(b) Immediately
upon the conveyance of the Mortgage Loans referred to in clause
(a), the Depositor sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund together with
the Depositor’s right to require each Seller to cure any
breach of a representation or warranty made herein by such Seller,
or to repurchase or substitute for any affected Mortgage Loan, in
accordance herewith.
(c) In
connection with the transfer and assignment set forth in clause (b)
above, the Depositor has delivered or caused to be delivered to the
Trustee (or, in the case of the Delay Delivery Mortgage Loans, will
deliver or cause to be delivered to the Trustee within thirty (30)
days following the Closing Date) for the benefit of the
Certificateholders the following documents or instruments with
respect to each Mortgage Loan so assigned:
(i) (A) the
original Mortgage Note endorsed by manual or facsimile signature in
blank in the following form: “Pay to the order of
____________ without recourse,” with all intervening
endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such
endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note); or
(B) with
respect to any Lost Mortgage Note, a lost note affidavit from
Countrywide stating that the original Mortgage Note was lost or
destroyed, together with a copy of such Mortgage Note;
(ii) except
as provided below and for each Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage or a copy of such
Mortgage, with recording information, (or, in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a true copy of the Mortgage certified
as such by the applicable notary) and in the case of each MERS
Mortgage Loan, the original Mortgage or a copy of such mortgage,
with recording information, noting the presence of the MIN of the
Mortgage Loans and either language indicating that the Mortgage
Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the
Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by
the public recording office in which such Mortgage has been
recorded;
(iii) in
the case of each Mortgage Loan that is not a MERS Mortgage Loan, a
duly executed assignment of the Mortgage or a copy of such
assignment, with recording information, (which may be included in a
blanket assignment or assignments), together with, except as
provided below, all interim recorded assignments of such mortgage
or a copy of such assignment, with recording information, (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the
assignment relates); provided that, if the related Mortgage has not
been returned from the applicable public recording office, such
assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such
assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico;
(iv) the
original or copies of each assumption, modification, written
assurance or substitution agreement, if any;
(v) except
as provided below, the original or a copy of lender’s title
policy or a printout of the electronic equivalent and all riders
thereto; and
(vi) in
the case of a Cooperative Loan, the originals of the following
documents or instruments:
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(A)
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The Coop Shares, together with a stock power in
blank;
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(B)
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The executed Security Agreement;
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(C)
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The executed Proprietary Lease;
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(D)
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The executed Recognition Agreement;
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(E) The
executed UCC-1 financing statement with evidence of recording
thereon which have been filed in all places required to perfect the
Seller’s interest in the Coop Shares and the Proprietary
Lease; and
(F) The
executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete
and unbroken line from the mortgagee to the Trustee with evidence
of recording thereon (or in a form suitable for
recordation).
In addition, in connection with the
assignment of any MERS Mortgage Loan, each Seller agrees that it
will cause, at the Trustee’s expense, the MERS® System
to indicate that the Mortgage Loans sold by such Seller to the
Depositor have been assigned by that Seller to the Trustee in
accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files the information required by the
MERS® System to identify the series of the Certificates issued
in connection with such Mortgage Loans. Each Seller further agrees
that it will not, and will not permit the Master Servicer to, and
the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold
by such Seller to the Depositor during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance
with the terms of this Agreement.
In the event that in connection with
any Mortgage Loan that is not a MERS Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage or a copy of such
mortgage, with recording information, or (b) all interim recorded
assignments or a copy of such assignments, with recording
information, or (c) the lender’s title policy or a copy of
lender’s title policy (together with all riders thereto)
satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery of this
Agreement because such document or documents have not been returned
from the applicable public recording office in the case of clause
(ii) or (iii) above, or because the title policy has not been
delivered to either the Master Servicer or the Depositor by the
applicable title insurer in the case of clause (v) above, the
Depositor shall promptly deliver to the Trustee, in the case of
clause (ii) or (iii) above, such original Mortgage or a copy of
such mortgage, with recording information, or such interim
assignment or a copy of such assignments, with recording
information, as the case may be, with evidence of recording
indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the
relevant recording office, but in no event shall any such delivery
of the original Mortgage and each such interim assignment or a copy
thereof, certified, if appropriate, by the relevant recording
office, be made later than one year following the Closing Date, or,
in the case of clause (v) above, no later than 120 days following
the Closing Date; provided, however, in the event the Depositor is
unable to deliver by such date each Mortgage and each such interim
assignment by reason of the fact that any such documents have not
been returned by the appropriate recording office, or, in the case
of each such interim assignment, because the related Mortgage has
not been returned by the appropriate recording office, the
Depositor shall deliver such documents to the Trustee as promptly
as possible upon receipt thereof and, in any event, within 720 days
following the Closing Date. The Depositor shall forward or cause to
be forwarded to the Trustee (a) from time to time additional
original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered
by the Depositor or the Master Servicer to the Trustee. In the
event that the original Mortgage is not delivered and in connection
with the payment in full of
the related Mortgage Loan and the
public recording office requires the presentation of a “lost
instruments affidavit and indemnity” or any equivalent
document, because only a copy of the Mortgage can be delivered with
the instrument of satisfaction or reconveyance, the Master Servicer
shall execute and deliver or cause to be executed and delivered
such a document to the public recording office. In the case where a
public recording office retains the original recorded Mortgage or
in the case where a Mortgage is lost after recordation in a public
recording office, Countrywide shall deliver to the Trustee a copy
of such Mortgage certified by such public recording office to be a
true and complete copy of the original recorded
Mortgage.
As promptly as practicable
subsequent to such transfer and assignment, and in any event,
within thirty (30) days after such transfer and assignment, the
Trustee shall (i) as the assignee thereof, affix the following
language to each assignment of Mortgage: “CWALT Series
2005-IM1, 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 Certificate Account the portion of such payment that is
required to be deposited in the Certificate Account pursuant to
Section 3.05.
Notwithstanding anything to the
contrary in this Agreement, within thirty (30) days after the
Closing Date with respect to the Mortgage Loans, Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park
Sienna) shall either (i) deliver to the Depositor, or at the
Depositor’s direction, to the Trustee or other designee of
the Depositor the Mortgage File as required pursuant to this
Section 2.01 for each Delay Delivery Mortgage Loan or
(ii) either (A) substitute a Substitute Mortgage Loan for
the Delay Delivery Mortgage Loan or (B) repurchase the Delay
Delivery Mortgage Loan, which substitution or repurchase shall be
accomplished in the manner and subject to the conditions set forth
in Section 2.03 (treating each Delay Delivery Mortgage Loan as
a Deleted Mortgage Loan for purposes of such Section 2.03);
provided, however , that if Countrywide fails to deliver a
Mortgage File for any Delay Delivery Mortgage Loan within the
thirty (30)-day period provided in the prior sentence, Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) shall use its best reasonable efforts to effect a
substitution, rather than a repurchase of, such Deleted Mortgage
Loan and provided further that the cure period provided for in
Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery
Mortgage Loan, but rather Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) shall have
five (5) Business Days to cure such failure to deliver. At the end
of such thirty (30)-day period the Trustee shall send a Delay
Delivery Certification for the Delay
Delivery Mortgage Loans delivered
during such thirty (30)-day period in accordance with the
provisions of Section 2.02.
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SECTION 2.02.
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Acceptance by Trustee of the Mortgage
Loans .
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(a) The
Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form annexed hereto as Exhibit F
(an “ Initial Certification ”) and
declares that it holds and will hold such documents and the other
documents delivered to it constituting the Mortgage Files, and that
it holds or will hold such other assets as are included in the
Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders. The Trustee acknowledges
that it will maintain possession of the Mortgage Notes in the State
of California, unless otherwise permitted by the Rating
Agencies.
The Trustee agrees to execute and
deliver on the Closing Date to the Depositor, the Master Servicer
and Countrywide (on its own behalf and on behalf of Park Granada,
Park Monaco and Park Sienna) an Initial Certification in the form
annexed to this Agreement as Exhibit F. Based on its review and
examination, and only as to the documents identified in such
Initial Certification, the Trustee acknowledges that such documents
appear regular on their face and relate to the Mortgage Loans. The
Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers
to determine that the same are genuine, enforceable or appropriate
for the represented purpose or that they have actually been
recorded in the real estate records or that they are other than
what they purport to be on their face.
On or about the thirtieth (30
th ) day after the Closing Date, the Trustee shall
deliver to the Depositor, the Master Servicer and Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park
Sienna) a Delay Delivery Certification with respect to the Mortgage
Loans in the form annexed hereto as Exhibit G (a “
Delay Delivery Certification ”), with any
applicable exceptions noted thereon.
Not later than 90 days after the
Closing Date, the Trustee shall deliver to the Depositor, the
Master Servicer and Countrywide (on its own behalf and on behalf of
Park Granada, Park Monaco and Park Sienna) a Final Certification
with respect to the Mortgage Loans in the form annexed hereto as
Exhibit H (a “ Final Certification
”), with any applicable exceptions noted thereon.
If, in the course of such review,
the Trustee finds any document constituting a part of a Mortgage
File that does not meet the requirements of Section 2.01, the
Trustee shall list such as an exception in the Final Certification;
provided , however that the Trustee shall not make
any determination as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party
so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note or (ii) any assignment is in recordable form or
is sufficient to effect the assignment of and transfer to the
assignee thereof under the mortgage to which the assignment
relates. Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall promptly correct or
cure such defect within 90 days from the date it was so notified of
such defect and, if Countrywide does not correct or cure such
defect within such period, Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) shall either
(a) substitute for the related Mortgage Loan a Substitute
Mortgage Loan, which substitution shall be
accomplished in the manner and
subject to the conditions set forth in Section 2.03, or
(b) purchase such Mortgage Loan from the Trustee within 90
days from the date Countrywide (on its own behalf and on behalf of
Park Granada, Park Monaco and Park Sienna) was notified of such
defect in writing at the Purchase Price of such Mortgage Loan;
provided , however , that in no event shall such
substitution or purchase occur more than 540 days from the Closing
Date, except that if the substitution or purchase of a Mortgage
Loan pursuant to this provision is required by reason of a delay in
delivery of any documents by the appropriate recording office, and
there is a dispute between either the Master Servicer or
Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) and the Trustee over the location or status
of the recorded document, then such substitution or purchase shall
occur within 720 days from the Closing Date. The Trustee shall
deliver written notice to each Rating Agency within 270 days from
the Closing Date indicating each Mortgage Loan (a) that has
not been returned by the appropriate recording office or
(b) as to which there is a dispute as to location or status of
such Mortgage Loan. Such notice shall be delivered every 90 days
thereafter until the related Mortgage Loan is returned to the
Trustee. Any such substitution pursuant to (a) above or
purchase pursuant to (b) above shall not be effected prior to
the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05, if any, and any substitution pursuant to (a)
above shall not be effected prior to the additional delivery to the
Trustee of a Request for Release substantially in the form of
Exhibit N. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. The
Purchase Price for any such Mortgage Loan shall be deposited by
Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) in the Certificate Account on or prior to
the Distribution Account Deposit Date for the Distribution Date in
the month following the month of repurchase and, upon receipt of
such deposit and certification with respect thereto in the form of
Exhibit N hereto, the Trustee shall release the related
Mortgage File to Countrywide (on its own behalf and on behalf of
Park Granada, Park Monaco and Park Sienna) and shall execute and
deliver at Countrywide’s (on its own behalf and on behalf of
Park Granada, Park Monaco and Park Sienna) request such instruments
of transfer or assignment prepared by Countrywide, in each case
without recourse, as shall be necessary to vest in Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park
Sienna), or its designee, the Trustee’s interest in any
Mortgage Loan released pursuant hereto. If pursuant to the
foregoing provisions Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) repurchases a
Mortgage Loan that is a MERS Mortgage Loan, the Master Servicer
shall either (i) cause MERS to execute and deliver an assignment of
the Mortgage in recordable form to transfer the Mortgage from MERS
to Countrywide (on its own behalf and on behalf of Park Granada,
Park Monaco and Park Sienna) or its designee and shall cause such
Mortgage to be removed from registration on the MERS® System
in accordance with MERS’ rules and regulations or (ii) cause
MERS to designate on the MERS® System Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
or its designee as the beneficial holder of such Mortgage
Loan.
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(b)
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[Reserved].
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(c)
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[Reserved].
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(d) The
Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set
forth in this Agreement. The Master Servicer shall promptly deliver
to the Trustee, upon the execution or receipt thereof, the
originals
of such other documents or
instruments constituting the Mortgage File as come into the
possession of the Master Servicer from time to time.
(e) It
is understood and agreed that the respective obligations of each
Seller to substitute for or to purchase any Mortgage Loan sold to
the Depositor by it which does not meet the requirements of
Section 2.01 above shall constitute the sole remedy respecting
such defect available to the Trustee, the Depositor and any
Certificateholder against that Seller.
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SECTION 2.03.
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Representations, Warranties and Covenants of the
Sellers and Master Servicer .
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(a) Countrywide
hereby makes the representations and warranties set forth in (i)
Schedule II-A, Schedule II-B, Schedule II-C and Schedule II-D
hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing
Date, (ii) Schedule III-A hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of
the Cut-off Date with respect to the Mortgage Loans, and (iii)
Schedule III-B hereto, and by this reference incorporated herein,
to the Depositor, the Master Servicer and the Trustee, as of the
Closing Date, or if so specified therein, as of the Cut-off Date
with respect to Mortgage Loans that are Countrywide Mortgage Loans.
Park Granada hereby makes the representations and warranties set
forth in (i) Schedule II-B hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date and (ii) Schedule III-C hereto, and
by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date with respect to the
Mortgage Loans that are Park Granada Mortgage Loans. Park Monaco
hereby makes the representations and warranties set forth in
(i) Schedule II-C hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date and (ii) Schedule III-D hereto, and by
this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date with respect to the
Mortgage Loans that are Park Monaco Mortgage Loans. Park Sienna
hereby makes the representations and warranties set forth in
(i) Schedule II-D hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date and (ii) Schedule III-E hereto, and by
this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date with respect to the
Mortgage Loans that are Park Sienna Mortgage Loans.
(b) The
Master Servicer hereby makes the representations and warranties set
forth in Schedule IV hereto, and by this reference incorporated
herein, to the Depositor and the Trustee, as of the Closing
Date.
(c) Upon
discovery by any of the parties hereto of a breach of a
representation or warranty with respect to a Mortgage Loan made
pursuant to Section 2.03(a) that materially and adversely
affects the interests of the Certificateholders in that Mortgage
Loan, the party discovering such breach shall give prompt notice
thereof to the other parties and the NIM Insurer. Each Seller
hereby covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a
breach of any representation or warranty with respect to a Mortgage
Loan sold by it pursuant to Section 2.03(a) that materially
and adversely affects the interests of the Certificateholders in
that Mortgage Loan, it shall cure such breach in
all material respects, and if such
breach is not so cured, shall, (i) if such 90-day period
expires prior to the second anniversary of the Closing Date, remove
such Mortgage Loan (a “ Deleted Mortgage Loan
”) from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the
affected Mortgage Loan or Mortgage Loans from the Trustee at the
Purchase Price in the manner set forth below; provided ,
however , that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05, if any, and any
such substitution pursuant to (i) above shall not be effected prior
to the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit N and the Mortgage File
for any such Substitute Mortgage Loan. The Seller repurchasing a
Mortgage Loan pursuant to this Section 2.03(c) shall promptly
reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in
respect of enforcing the remedies for such breach. With respect to
the representations and warranties described in this
Section which are made to the best of a Seller’s
knowledge, if it is discovered by either the Depositor, a Seller or
the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects
the value of the related Mortgage Loan or the interests of the
Certificateholders therein, notwithstanding that Seller’s
lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a
breach of the applicable representation or warranty.
With respect to any Substitute
Mortgage Loan or Loans sold to the Depositor by a Seller,
Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall deliver to the Trustee for the
benefit of the Certificateholders the Mortgage Note, the Mortgage,
the related assignment of the Mortgage, and such other documents
and agreements as are required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month.
Scheduled Payments due with respect to Substitute Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and
will be retained by the related Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any
Deleted Mortgage Loan for such month and thereafter that Seller
shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage
Loan Schedule for the benefit of the Certificateholders to reflect
the removal of such Deleted Mortgage Loan and the substitution of
the Substitute Mortgage Loan or Loans and the Master Servicer shall
deliver the amended Mortgage Loan Schedule to the Trustee. Upon
such substitution, the Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects, and the
related Seller shall be deemed to have made with respect to such
Substitute Mortgage Loan or Loans, as of the date of substitution,
the representations and warranties made pursuant to
Section 2.03(a) with respect to such Mortgage Loan. Upon any
such substitution and the deposit to the Certificate Account of the
amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Trustee
shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the
related Seller and shall execute and deliver at such Seller’s
direction such instruments of transfer or assignment prepared by
Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna), in each case without recourse, as shall be
necessary to vest title in that Seller, or its designee, the
Trustee’s interest in any Deleted Mortgage Loan substituted
for pursuant to this Section 2.03.
For any month in which a Seller
substitutes one or more Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Master Servicer will determine the
amount (if any) by which the aggregate principal balance of all
Substitute Mortgage Loans sold to the Depositor by that Seller as
of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans repurchased by that
Seller (after application of the scheduled principal portion of the
monthly payments due in the month of substitution). The amount of
such shortage (the “ Substitution Adjustment
Amount ”) plus an amount equal to the aggregate of
any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be deposited in the Certificate Account by Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) on or before the Distribution Account Deposit Date for
the Distribution Date in the month succeeding the calendar month
during which the related Mortgage Loan became required to be
purchased or replaced hereunder.
In the event that a Seller shall
have repurchased a Mortgage Loan, the Purchase Price therefor shall
be deposited in the Certificate Account pursuant to
Section 3.05 on or before the Distribution Account Deposit
Date for the Distribution Date in the month following the month
during which that Seller became obligated hereunder to repurchase
or replace such Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by
Section 2.05 and receipt of a Request for Release in the form
of Exhibit N hereto, the Trustee shall release the related
Mortgage File held for the benefit of the Certificateholders to
such Person, and the Trustee shall execute and deliver at such
Person’s direction such instruments of transfer or assignment
prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to
cure, repurchase or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedy
against such Persons respecting such breach available to
Certificateholders, the Depositor or the Trustee on their
behalf.
The representations and warranties
made pursuant to this Section 2.03 shall survive delivery of
the respective Mortgage Files to the Trustee for the benefit of the
Certificateholders.
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SECTION 2.04.
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Representations and Warranties of the Depositor
as to the Mortgage Loans .
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The Depositor hereby represents and
warrants to the Trustee with respect to each Mortgage Loan as of
the date of this Agreement or such other date set forth in this
Agreement that as of the Closing Date, and following the transfer
of the Mortgage Loans to it by a Seller, the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to
no offsets, defenses or counterclaims.
The Depositor hereby assigns,
transfers and conveys to the Trustee all of its rights with respect
to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to
Section 2.03(a), together with all rights of the Depositor to
require a Seller to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with this
Agreement.
It is understood and agreed that the
representations and warranties set forth in this Section 2.04 shall
survive delivery of the Mortgage Files to the Trustee. Upon
discovery by the
Depositor or the Trustee of a breach
of any of the foregoing representations and warranties set forth in
this Section 2.04 (referred to herein as a “breach”),
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give
prompt written notice to the others and to each Rating Agency and
the NIM Insurer.
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SECTION 2.05.
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Delivery of Opinion of Counsel in Connection
with Substitutions .
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(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant
to Section 2.02 or Section 2.03 shall be made more than
90 days after the Closing Date unless Countrywide delivers to the
Trustee an Opinion of Counsel, which Opinion of Counsel shall not
be at the expense of either the Trustee or the Trust Fund,
addressed to the Trustee, to the effect that such substitution will
not (i) result in the imposition of the tax on
“prohibited transactions” on the Trust Fund or
contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively, or
(ii) cause any REMIC created under this Agreement to fail to
qualify as a REMIC at any time that any Certificates are
outstanding.
(b) Upon
discovery by the Depositor, a Seller, the Master Servicer, or the
Trustee that any Mortgage Loan does not constitute a
“qualified mortgage” within the meaning of
Section 860G(a)(3) of the Code, the party discovering such
fact shall promptly (and in any event within five (5) Business Days
of discovery) give written notice thereof to the other parties and
the NIM Insurer. In connection therewith, the Trustee shall require
Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) at its option, to either
(i) substitute, if the conditions in Section 2.03(c) with
respect to substitutions are satisfied, a Substitute Mortgage Loan
for the affected Mortgage Loan, or (ii) repurchase the
affected Mortgage Loan within 90 days of such discovery in the same
manner as it would a Mortgage Loan for a breach of representation
or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the Mortgage Loan to be released pursuant
to this Section in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty contained in
Section 2.03.
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SECTION 2.06.
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Execution and Delivery of
Certificates .
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The Trustee acknowledges the
transfer and assignment to it of the Trust Fund and, concurrently
with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust
Fund and exercise the rights referred to above for the benefit of
all present and future Holders of the Certificates and to perform
the duties set forth in this Agreement, to the end that the
interests of the Holders of the Certificates may be adequately and
effectively protected.
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SECTION 2.07.
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REMIC Matters .
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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.
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SECTION 2.08.
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Covenants of the Master Servicer
.
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The Master Servicer hereby covenants
to the Depositor and the Trustee as follows:
(a) the
Master Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(b) no
written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by the
Master Servicer pursuant to this Agreement will contain any untrue
statement of a material fact or omit to state a material fact
necessary to make such information, certificate, statement or
report not misleading.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
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SECTION 3.01.
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Master Servicer to Service Mortgage
Loans .
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For and on behalf of the
Certificateholders, the Master Servicer shall service and
administer the Mortgage Loans in accordance with the terms of this
Agreement and customary and usual standards of practice of prudent
mortgage loan servicers. In connection with such servicing and
administration, the Master Servicer shall have full power and
authority, acting alone and/or through Subservicers as provided in
Section 3.02, subject to the terms of this Agreement
(i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers
and other instruments and documents, (ii) to consent to
transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in
this Agreement), (iii) to collect any Insurance Proceeds and
other Liquidation Proceeds (which for the purpose of this Section
3.01 includes any Subsequent Recoveries), and (iv) to
effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan; provided that the
Master Servicer shall not take any action that is inconsistent with
or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests
of the Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its
own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan, and shall not
make or permit any modification, waiver or amendment of any
Mortgage Loan which would cause any REMIC created under this
Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of
the Code. Without limiting the generality of the foregoing, the
Master Servicer, in its own name or in the name of the Depositor
and the Trustee, is hereby authorized and empowered by the
Depositor and the Trustee, when the Master Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Depositor, the Certificateholders or any
of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge and all other comparable
instruments, with respect to the Mortgage Loans, and with respect
to the Mortgaged Properties held for the benefit of the
Certificateholders. The Master Servicer shall prepare and deliver
to the Depositor and/or the Trustee such documents requiring
execution and delivery by either or both of them as are necessary
or appropriate to enable the Master Servicer to service and
administer the Mortgage Loans to the extent that the Master
Servicer is not permitted to execute and deliver such documents
pursuant to the preceding sentence. Upon receipt of such documents,
the Depositor and/or the Trustee shall execute such documents and
deliver them to the Master Servicer. The Master Servicer further is
authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name
of the Subservicer, when the Master Servicer or the Subservicer, as
the case may be, believes it appropriate in its best judgment to
register any Mortgage Loan on the MERS® System, or cause the
removal from the registration of any Mortgage Loan on the
MERS® System, to execute and deliver, on behalf of the Trustee
and the Certificateholders or any of them, any and all instruments
of assignment and other comparable instruments with respect to such
assignment or re-recording of a Mortgage in the name of MERS,
solely as nominee for the Trustee and its successors and
assigns.
In accordance with the standards of
the preceding paragraph, the Master Servicer shall advance or cause
to be advanced funds as necessary for the purpose of effecting the
payment of taxes and assessments on the Mortgaged Properties, which
advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.06, and
further as provided in Section 3.08. The costs incurred by the
Master Servicer, if any, in effecting the timely payments of taxes
and assessments on the Mortgaged Properties and related insurance
premiums shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the Stated
Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
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SECTION 3.02.
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Subservicing; Enforcement of the Obligations of
Servicers .
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(a) The
Master Servicer may arrange for the subservicing of any Mortgage
Loan by a Subservicer pursuant to a subservicing agreement;
provided , however , that such subservicing
arrangement and the terms of the related subservicing agreement
must provide for the servicing of such Mortgage Loans in a manner
consistent with the servicing arrangements contemplated under this
Agreement; provided, however, that the NIM Insurer shall have
consented to such subservicing agreements (which consent shall not
be unreasonably withheld). Unless the context otherwise requires,
references in this Agreement to actions taken or to be taken by the
Master Servicer in servicing the Mortgage Loans include actions
taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing
agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer and a
Subservicer or reference to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to
the Depositor, the Trustee and the Certificateholders for the
servicing and administration of the Mortgage Loans in accordance
with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements
or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and
conditions as if the Master Servicer alone were servicing and
administering the Mortgage Loans. All actions of each Subservicer
performed pursuant to the related subservicing agreement shall be
performed as an agent of the Master Servicer with the same force
and effect as if performed directly by the Master
Servicer.
(b) For
purposes of this Agreement, the Master Servicer shall be deemed to
have received any collections, recoveries or payments with respect
to the Mortgage Loans that are received by a Subservicer regardless
of whether such payments are remitted by the Subservicer to the
Master Servicer.
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SECTION 3.03.
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Rights of the Depositor, the NIM Insurer and the
Trustee in Respect of the Master Servicer .
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The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicer under
this Agreement and may, but is not obligated to, perform, or cause
a designee to perform, any defaulted obligation of the Master
Servicer under this Agreement and in connection with any such
defaulted obligation to exercise the related rights of the Master
Servicer under this Agreement; provided that the Master Servicer
shall not be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its
designee. None of the Trustee, the NIM Insurer or the Depositor
shall have any responsibility or liability for any
action
or failure to act by the Master
Servicer nor shall the Trustee or the Depositor be obligated to
supervise the performance of the Master Servicer under this
Agreement or otherwise.
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SECTION 3.04.
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Trustee to Act as Master Servicer
.
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In the event that the Master
Servicer shall for any reason no longer be the Master Servicer
under this Agreement (including by reason of an Event of Default),
the Trustee or its successor shall then assume all of the rights
and obligations of the Master Servicer under this Agreement arising
thereafter (except that the Trustee shall not be (i) liable
for losses of the Master Servicer pursuant to Section 3.09 or
any acts or omissions of the predecessor Master Servicer under this
Agreement), (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to
effectuate repurchases or substitutions of Mortgage Loans under
this Agreement including, but not limited to, repurchases or
substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03, (iv) responsible for expenses of the Master Servicer
pursuant to Section 2.03 or (v) deemed to have made any
representations and warranties of the Master Servicer under this
Agreement). Any such assumption shall be subject to
Section 7.02. If the Master Servicer shall for any reason no
longer be the Master Servicer (including by reason of any Event of
Default), the Trustee or its successor shall succeed to any rights
and obligations of the Master Servicer under each subservicing
agreement.
The Master Servicer shall, upon
request of the Trustee, but at the expense of the Master Servicer,
deliver to the assuming party all documents and records relating to
each subservicing agreement or substitute subservicing agreement
and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its
best efforts to effect the orderly and efficient transfer of the
substitute subservicing agreement to the assuming party.
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SECTION 3.05.
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Collection of Mortgage Loan Payments;
Certificate Account; Distribution Account; Carryover Reserve Fund;
Principal Reserve Fund .
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(a) The
Master Servicer shall make reasonable efforts in accordance with
the customary and usual standards of practice of prudent mortgage
servicers to collect all payments called for under the terms and
provisions of the Mortgage Loans to the extent such procedures
shall be consistent with this Agreement and the terms and
provisions of any related Required Insurance Policy. Consistent
with the foregoing, the Master Servicer may in its discretion
(i) waive any late payment charge or, subject to Section 3.21,
any Prepayment Charge or penalty interest in connection with the
prepayment of a Mortgage Loan and (ii) extend the due dates
for payments due on a Mortgage Note for a period not greater than
180 days; provided , however , that the Master
Servicer cannot extend the maturity of any such Mortgage Loan past
the date on which the final payment is due on the latest maturing
Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, the Master Servicer shall make Advances on the related
Mortgage Loan in accordance with the provisions of
Section 4.01 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements. In addition,
the NIM Insurer’s prior written consent shall be required for
any waiver of Prepayment Charges or for the extension of the due
dates for payments due on a Mortgage Note, if the aggregate number
of outstanding Mortgage Loans that have been granted such waivers
or extensions exceeds 5% of the aggregate number of
Mortgage
Loans. The Master Servicer shall not
be required to institute or join in litigation with respect to
collection of any payment (whether under a Mortgage, Mortgage Note
or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that
enforcing the provision of the Mortgage or other instrument
pursuant to which such payment is required is prohibited by
applicable law.
(b) The
Master Servicer shall establish and maintain a Certificate Account
into which the Master Servicer shall deposit or cause to be
deposited no later than two Business Days after receipt (or, if the
current long-term credit rating of Countrywide is reduced below
“A-” by S&P or “A3” by Moody’s,
the Master Servicer shall deposit or cause to be deposited on a
daily basis within one Business Day of receipt), except as
otherwise specifically provided in this Agreement, the following
payments and collections remitted by Subservicers or received by it
in respect of Mortgage Loans subsequent to the Cut-off Date (other
than in respect of principal and interest due on the Mortgage Loans
on or before the Cut-off Date) and the following amounts required
to be deposited under this Agreement:
(i) all
payments on account of principal on the Mortgage Loans, including
Principal Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans, net of the
related Master Servicing Fee, Prepayment Interest Excess and any
lender paid mortgage insurance premiums;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds,
other than proceeds to be applied to the restoration or repair of a
Mortgaged Property or released to the Mortgagor in accordance with
the Master Servicer’s normal servicing procedures;
(iv) any
amount required to be deposited by the Master Servicer or the
Depositor in connection with any losses on Permitted Investments
for which it is responsible;
(v) any
amounts required to be deposited by the Master Servicer pursuant to
Section 3.09(c) and in respect of net monthly rental income
from REO Property pursuant to Section 3.11;
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(vi)
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all Substitution Adjustment Amounts;
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(vii)
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all Advances made by the Master Servicer
pursuant to Section 4.01; and
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(viii)
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any other amounts required to be deposited under
this Agreement.
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In addition, with respect to any
Mortgage Loan that is subject to a buydown agreement, on each Due
Date for such Mortgage Loan, in addition to the monthly payment
remitted by the Mortgagor, the Master Servicer shall cause funds to
be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to such
Mortgage Loan equal to the amount of interest that has accrued on
such Mortgage Loan from the preceding Due Date at the Mortgage Rate
net of the related Master Servicing Fee.
The foregoing requirements for
remittance by the Master Servicer shall be exclusive, it being
understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of prepayment penalties, late
payment charges or assumption fees, if collected, need not be
remitted by the Master Servicer. In the event that the Master
Servicer shall remit any amount not required to be remitted, it may
at any time withdraw or direct the institution maintaining the
Certificate Account to withdraw such amount from the Certificate
Account, any provision in this Agreement to the contrary
notwithstanding. Such withdrawal or direction may be accomplished
by delivering written notice thereof to the Trustee or such other
institution maintaining the Certificate Account which describes the
amounts deposited in error in the Certificate Account. The Master
Servicer shall maintain adequate records with respect to all
withdrawals made pursuant to this Section. All funds deposited in
the Certificate Account shall be held in trust for the
Certificateholders until withdrawn in accordance with
Section 3.08.
(c) The
Trustee shall establish and maintain, on behalf of the
Certificateholders, a Principal Reserve Fund in the name of the
Trustee. On the Closing Date, the Depositor shall deposit into the
Principal Reserve Fund $100. Funds on deposit in the Principal
Reserve Fund shall not be invested. The Principal Reserve Fund
shall be treated as an “outside reserve fund” under
applicable Treasury regulations and shall not be part of any REMIC
created under this Agreement. Amounts on deposit in the Principal
Reserve Fund shall not be invested.
(d) The
Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall,
promptly upon receipt, deposit in the Distribution Account and
retain in the Distribution Account the following:
(i) the
aggregate amount remitted by the Master Servicer to the Trustee
pursuant to Section 3.08(a)(ix);
(ii) any
amount deposited by the Master Servicer pursuant to
Section 3.05(e) in connection with any losses on Permitted
Investments for which it is responsible; and
(iii) any
other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master
Servicer shall remit any amount not required to be remitted, it may
at any time direct the Trustee to withdraw such amount from the
Distribution Account, any provision in this Agreement to the
contrary notwithstanding. Such direction may be accomplished by
delivering an Officer’s Certificate to the Trustee which
describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in
accordance with Section 3.08. In no event shall the Trustee
incur liability for withdrawals from the Distribution Account at
the direction of the Master Servicer.
(e) Each
institution at which the Certificate Account or the Distribution
Account is maintained shall invest the funds therein as directed in
writing by the Master Servicer in Permitted Investments, which
shall mature not later than (i) in the case of the Certificate
Account, the second Business Day next preceding the related
Distribution Account Deposit Date (except that if such Permitted
Investment is an obligation of the institution that maintains
such
account, then such Permitted
Investment shall mature not later than the Business Day next
preceding such Distribution Account Deposit Date) and (ii) in
the case of the Distribution Account, the Business Day next
preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such
fund or account, then such Permitted Investment shall mature not
later than such Distribution Date) and, in each case, shall not be
sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All income and gain net of any
losses realized from any such investment of funds on deposit in the
Certificate Account, or the Distribution Account shall be for the
benefit of the Master Servicer as servicing compensation and shall
be remitted to it monthly as provided in this Agreement. The amount
of any realized losses in the Certificate Account or the
Distribution Account incurred in any such account in respect of any
such investments shall promptly be deposited by the Master Servicer
in the Certificate Account or paid to the Trustee for deposit into
the Distribution Account, as applicable. The Trustee in its
fiduciary capacity shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of
funds held in the Certificate Account or the Distribution Account
and made in accordance with this Section 3.05.
(f) The
Master Servicer shall give notice to the Trustee, each Seller, each
Rating Agency and the Depositor of any proposed change of the
location of the Certificate Account prior to any change thereof.
The Trustee shall give notice to the Master Servicer, each Seller,
each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account or the Carryover Reserve Fund
prior to any change thereof.
(g) On
the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Offered
Certificates, the Carryover Reserve Fund and shall deposit $1,000
therein upon receipt from or on behalf of the Depositor of such
amount. The Carryover Reserve Fund shall be an Eligible Account,
and funds on deposit therein shall be held separate and apart from,
and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trustee pursuant to
this Agreement.
The Trustee shall make withdrawals
from the Carryover Reserve Fund to make distributions pursuant to
Section 4.02(a)(5) exclusively (other than as expressly provided
for in Section 3.08).
Funds in the Carryover Reserve Fund
may be invested in Permitted Investments at the direction of the
Majority of the Holders of the Class C Certificates, which
Permitted Investments shall mature not later than the Business Day
immediately preceding the first Distribution Date that follows the
date of such investment (except that if such Permitted Investment
is an obligation of the institution that maintains the Carryover
Reserve Fund, then such Permitted Investment shall mature not later
than such Distribution Date) and shall not be sold or disposed of
prior to maturity. All such Permitted Investments shall be made in
the name of the Trustee, for the benefit of the Holders of the
Class C Certificates. In the absence of such written direction, all
funds in the Carryover Reserve Fund shall be invested by the
Trustee in The Bank of New York cash reserves. Any net investment
earnings on such amounts shall be retained therein until withdrawn
as provided in Section 3.08. Any losses incurred in the Carryover
Reserve Fund in respect of any such investments shall be charged
against amounts on deposit in the Carryover Reserve Fund (or such
investments) immediately as realized. The Trustee shall not be
liable for the amount of any loss incurred in respect of any
investment or lack of investment of funds held
in the Carryover Reserve Fund and
made in accordance with this Section 3.05. The Carryover Reserve
Fund will not constitute an asset of any REMIC created hereunder.
The Class C Certificates shall evidence ownership of the Carryover
Reserve Fund for federal tax purposes.
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SECTION 3.06.
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Collection of Taxes, Assessments and Similar
Items; Escrow Accounts .
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(a) To
the extent required by the related Mortgage Note and not violative
of current law, the Master Servicer shall establish and maintain
one or more accounts (each, an “ Escrow Account
”) and deposit and retain therein all collections from the
Mortgagors (or advances by the Master Servicer) for the payment of
taxes, assessments, hazard insurance premiums or comparable items
for the account of the Mortgagors. Nothing in this Agreement shall
require the Master Servicer to compel a Mortgagor to establish an
Escrow Account in violation of applicable law.
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only
to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items,
to reimburse the Master Servicer out of related collections for any
payments made pursuant to Sections 3.01 (with respect to taxes
and assessments and insurance premiums) and 3.09 (with respect to
hazard insurance), to refund to any Mortgagors any sums determined
to be overages, to pay interest, if required by law or the terms of
the related Mortgage or Mortgage Note, to Mortgagors on balances in
the Escrow Account or to clear and terminate the Escrow Account at
the termination of this Agreement in accordance with
Section 9.01. The Escrow Accounts shall not be a part of the
Trust Fund.
(c) The
Master Servicer shall advance any payments referred to in
Section 3.06(a) that are not timely paid by the Mortgagors on
the date when the tax, premium or other cost for which such payment
is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith
judgment of the Master Servicer, will be recoverable by the Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
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SECTION 3.07.
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Access to Certain Documentation and Information
Regarding the Mortgage Loans .
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The Master Servicer shall afford
each Seller, the Depositor, the NIM Insurer and the Trustee
reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other
matters relating to this Agreement, such access being afforded
without charge, but only upon reasonable request and during normal
business hours at the office designated by the Master
Servicer.
Upon reasonable advance notice in
writing, the Master Servicer will provide to each Certificateholder
and/or Certificate Owner which is a savings and loan association,
bank or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans
sufficient to permit such Certificateholder and/or Certificate
Owner to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the
Certificates; provided that the Master Servicer shall be entitled
to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred
by the Master Servicer in providing
such reports and access. Upon request, the Master Servicer shall
furnish to the Trustee and the NIM Insurer its most recent publicly
available financial statements and any other information relating
to its capacity to perform its obligations under this Agreement
reasonably requested by the NIM Insurer.
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SECTION 3.08.
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Permitted Withdrawals from the Certificate
Account, the Distribution Account, the Carryover Reserve Fund and
the Principal Reserve Fund .
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(a) The
Master Servicer may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to
pay to the Master Servicer (to the extent not previously retained
by the Master Servicer) the servicing compensation to which it is
entitled pursuant to Section 3.14 and to pay to the Master
Servicer, as additional servicing compensation, earnings on or
investment income with respect to funds in or credited to the
Certificate Account;
(ii) to
reimburse each of the Master Servicer and the Trustee for
unreimbursed Advances made by it, such right of reimbursement
pursuant to this subclause (ii) being limited to amounts
received on the Mortgage Loan(s) in respect of which any such
Advance was made;
(iii) to
reimburse each of the Master Servicer and the Trustee for any
Nonrecoverable Advance previously made by it;
(iv) to
reimburse the Master Servicer for Insured Expenses from the related
Insurance Proceeds;
(v) to
reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master Servicer’s right to reimbursement
pursuant to this clause (a) with respect to any Mortgage Loan
being limited to amounts received on such Mortgage Loan(s) that
represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 3.06 and
(b) for unpaid Master Servicing Fees as provided in
Section 3.11;
(vi) to
pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased
pursuant to Section 2.02, 2.03 or 3.11, all amounts received
on such Mortgage Loan after the date of such purchase;
(vii) to
reimburse the Sellers, the Master Servicer, the NIM Insurer or the
Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not
required to be deposited in the Certificate Account;
(ix) on
or prior to the Distribution Account Deposit Date, to withdraw an
amount equal to the related Available Funds and the Trustee Fee for
such Distribution Date and remit such amount to the Trustee for
deposit in the Distribution Account; and
(x) to
clear and terminate the Certificate Account upon termination of
this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and
maintain separate accounting, on a Mortgage Loan by Mortgage Loan
basis, for the purpose of justifying any withdrawal from the
Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the
Certificate Account pursuant to subclause (iii), the Master
Servicer shall deliver to the Trustee an Officer’s
Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a
Nonrecoverable Advance and identifying the related Mortgage
Loans(s), and their respective portions of such Nonrecoverable
Advance.
(b) The
Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders, 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:
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(i)
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to pay to itself the Trustee Fee for the related
Distribution Date;
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(ii) to
pay to the Master Servicer as additional servicing compensation
earnings on or investment income with respect to funds in the
Distribution Account;
(iii) to
withdraw and return to the Master Servicer any amount deposited in
the Distribution Account and not required to be deposited
therein;
(iv) to
reimburse the Trustee for any unreimbursed Advances made by it
pursuant to Section 4.01(b) hereof, such right of reimbursement
pursuant to this subclause (iv) being limited to (x) amounts
received on the related Mortgage Loan(s) in respect of which any
such Advance was made and (y) amounts not otherwise reimbursed to
the Trustee pursuant to Section 3.08(a)(ii) hereof;
(v) to
reimburse the Trustee for any Nonrecoverable Advance previously
made by the Trustee pursuant to Section 4.01(b) hereof, such right
of reimbursement pursuant to this subclause (v) being limited to
amounts not otherwise reimbursed to the Trustee pursuant to Section
3.08(a)(iii) hereof; and
(vi) to
clear and terminate the Distribution Account upon termination of
the Agreement pursuant to Section 9.01.
(c) The
Trustee shall withdraw funds from the Carryover Reserve Fund for
distribution to the LIBOR Certificates and the Class C Certificates
in the manner specified in Section 4.02(d) (and to withhold from
the amounts so withdrawn the amount of any taxes that it is
authorized to retain pursuant to the last paragraph of Section
8.11). In addition, the Trustee
may from time to time make
withdrawals from the Carryover Reserve Fund for the following
purposes:
(i) to
withdraw any amount deposited in the Carryover Reserve Fund and not
required to be deposited therein; and
(ii) to
clear and terminate the Carryover Reserve Fund upon the termination
of this Agreement pursuant to Section 9.01.
(d) On
the Business Day before the Class P Principal Distribution Date,
the Trustee shall transfer $100.00 from the Principal Reserve Fund
to the Distribution Account and shall distribute such amount to the
Class P Certificates on the Class P Principal Distribution Date.
Following the distributions to be made in accordance with the
preceding sentence, the Trustee shall then terminate the Principal
Reserve Fund.
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SECTION 3.09.
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Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies .
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(a) The
Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance with extended coverage in an amount that is
at least equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan or
(ii) the greater of (y) the outstanding principal balance
of the Mortgage Loan and (z) an amount such that the proceeds
of such policy shall be sufficient to prevent the Mortgagor and/or
the mortgagee from becoming a co-insurer. Each such policy of
standard hazard insurance shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. Any amounts
collected by the Master Servicer under any such policies (other
than the amounts to be applied to the restoration or repair of the
related Mortgaged Property or amounts released to the Mortgagor in
accordance with the Master Servicer’s normal servicing
procedures) shall be deposited in the Certificate Account. Any cost
incurred by the Master Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to
the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such
costs shall be recoverable by the Master Servicer out of late
payments by the related Mortgagor or out of proceeds of liquidation
of the Mortgage Loan or Subsequent Recoveries to the extent
permitted by Section 3.08. It is understood and agreed that no
earthquake or other additional insurance is to be required of any
Mortgagor or maintained on property acquired in respect of a
Mortgage other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require
such additional insurance. If the Mortgaged Property is located at
the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating
in the national flood insurance program, the Master Servicer shall
cause flood insurance to be maintained with respect to such
Mortgage Loan. Such flood insurance shall be in an amount equal to
the least of (i) the outstanding principal balance of the
related Mortgage Loan, (ii) the replacement value of the
improvements which are part of such Mortgaged Property, and
(iii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance
program.
(c) The
Master Servicer shall not take any action which would result in
non-coverage under any applicable Primary Insurance Policy of any
loss which, but for the actions of the Master Servicer, would have
been covered thereunder. The Master Servicer shall not cancel or
refuse to renew any such Primary Insurance Policy that is in effect
at the date of the initial issuance of the Certificates and is
required to be kept in force hereunder unless the replacement
Primary Insurance Policy for such canceled or non-renewed policy is
maintained with a Qualified Insurer.
Except with respect to any Lender
PMI Mortgage Loans, the Master Servicer shall not be required to
maintain any Primary Insurance Policy (i) with respect to any
Mortgage Loan with a Loan-to-Value Ratio less than or equal to 80%
as of any date of determination or, based on a new appraisal, the
principal balance of such Mortgage Loan represents 80% or less of
the new appraised value or (ii) if maintaining such Primary
Insurance Policy is prohibited by applicable law. With respect to
the Lender PMI Mortgage Loans, the Master Servicer shall maintain
the Primary Insurance Policy for the life of such Mortgage Loans,
unless otherwise provided for in the related Mortgage Note or
prohibited by law.
The Master Servicer agrees to effect
the timely payment of the premiums on each Primary Insurance
Policy, and such costs not otherwise recoverable shall be
recoverable by the Master Servicer from the related proceeds of
liquidation and Subsequent Recoveries.
(d) In
connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present on behalf of itself,
the Trustee and Certificateholders, claims to the insurer under any
Primary Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under
any Primary Insurance Policies respecting defaulted Mortgage Loans.
Any amounts collected by the Master Servicer under any Primary
Insurance Policies shall be deposited in the Certificate
Account.
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SECTION 3.10.
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Enforcement of Due-on-Sale Clauses; Assumption
Agreements .
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(a) Except
as otherwise provided in this Section, when any property subject to
a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of such conveyance,
enforce any due-on-sale clause contained in any Mortgage Note or
Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under
any Required Insurance Policy. Notwithstanding the foregoing, the
Master Servicer is not required to exercise such rights with
respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed
satisfies the terms and conditions contained in the Mortgage Note
and Mortgage related thereto and the consent of the mortgagee under
such Mortgage Note or Mortgage is not otherwise so required under
such Mortgage Note or Mortgage as a condition to such transfer. In
the event that the Master Servicer is prohibited by law from
enforcing any such due-on-sale clause, or if coverage under any
Required Insurance Policy would be adversely affected, or if
nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.10(b), to take or
enter into an assumption and modification agreement from or with
the person to whom such property has been or is about to be
conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, unless prohibited by applicable state law, the
Mortgagor remains liable thereon, provided that the Mortgage Loan
shall continue to be covered (if so covered
before the Master Servicer enters
such agreement) by the applicable Required Insurance Policies. The
Master Servicer, subject to Section 3.10(b), is also
authorized with the prior approval of the insurers under any
Required Insurance Policies to enter into a substitution of
liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is
substituted as Mortgagor and becomes liable under the Mortgage
Note. Notwithstanding the foregoing, the Master Servicer shall not
be deemed to be in default under this Section by reason of any
transfer or assumption which the Master Servicer reasonably
believes it is restricted by law from preventing, for any reason
whatsoever.
(b) Subject
to the Master Servicer’s duty to enforce any due-on-sale
clause to the extent set forth in Section 3.10(a), in any case
in which a Mortgaged Property has been conveyed to a Person by a
Mortgagor, and such Person is to enter into an assumption agreement
or modification agreement or supplement to the Mortgage Note or
Mortgage that requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing
the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver or cause to be prepared and
delivered to the Trustee for signature and shall direct, in
writing, the Trustee to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to
carry out the terms of the Mortgage Note or Mortgage or otherwise
to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In connection
with any such assumption, no material term of the Mortgage Note may
be changed. In addition, the substitute Mortgagor and the Mortgaged
Property must be acceptable to the Master Servicer in accordance
with its underwriting standards as then in effect. Together with
each such substitution, assumption or other agreement or instrument
delivered to the Trustee for execution by it, the Master Servicer
shall deliver an Officer’s Certificate signed by a Servicing
Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer shall notify the
Trustee that any such substitution or assumption agreement has been
completed by forwarding to the Trustee the original of such
substitution or assumption agreement, which in the case of the
original shall be added to the related Mortgage File and shall, for
all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a
part thereof. Any fee collected by the Master Servicer for entering
into an assumption or substitution of liability agreement will be
retained by the Master Servicer as additional servicing
compensation.
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SECTION 3.11.
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Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans .
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(a) The
Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing
such of the Mortgage Loans as come into and continue in default and
as to which no satisfactory arrangements can be made for collection
of delinquent payments. In connection with such foreclosure or
other conversion, the Master Servicer shall follow such practices
and procedures as it shall deem necessary or advisable and as shall
be normal and usual in its general mortgage servicing activities
and meet the requirements of the insurer under any Required
Insurance Policy; provided, however, that the Master Servicer shall
not be required to expend its own funds in connection with any
foreclosure or towards the restoration of any property unless it
shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after
reimbursement
to itself of such expenses and (ii)
that such expenses will be recoverable to it through the proceeds
of liquidation of the Mortgage Loan and Subsequent Recoveries
(respecting which it shall have priority for purposes of
withdrawals from the Certificate Account). The Master Servicer
shall be responsible for all other costs and expenses incurred by
it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the proceeds of liquidation
of the Mortgage Loan and Subsequent Recoveries with respect to the
related Mortgaged Property, as provided in the definition of
Liquidation Proceeds. If the Master Servicer has knowledge that a
Mortgaged Property which the Master Servicer is contemplating
acquiring in foreclosure or by deed in lieu of foreclosure is
located within a 1 mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of
1984 or other site with environmental or hazardous waste risks
known to the Master Servicer, the Master Servicer will, prior to
acquiring the Mortgaged Property, consider such risks and only take
action in accordance with its established environmental review
procedures.
With respect to any REO Property,
the deed or certificate of sale shall be taken in the name of the
Trustee for the benefit of the Certificateholders, or its nominee,
on behalf of the Certificateholders. The Trustee’s name shall
be placed on the title to such REO Property solely as the Trustee
hereunder and not in its individual capacity. The Master Servicer
shall ensure that the title to such REO Property references the
Pooling and Servicing Agreement and the Trustee’s capacity
thereunder. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall either itself or through an agent selected by
the Master Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality
where such REO Property is located and may, incident to its
conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the
Master Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO
Property. The Master Servicer shall prepare for and deliver to the
Trustee a statement with respect to each REO Property that has been
rented showing the aggregate rental income received and all
expenses incurred in connection with the maintenance of such REO
Property at such times as is necessary to enable the Trustee to
comply with the reporting requirements of the REMIC Provisions. The
net monthly rental income, if any, from such REO Property shall be
deposited in the Certificate Account no later than the close of
business on each Determination Date. The Maste
