EXHIBIT 4.1
-----------
EXECUTION VERSION
===========================
CWMBS, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
PARK GRANADA LLC,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
----------------------------------
CHL MORTGAGE PASS-THROUGH TRUST 2005-3
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-3
===========================
6
<PAGE>
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION
2.01. Conveyance of
Mortgage Loans...........................33
SECTION
2.02. Acceptance by
Trustee of the Mortgage Loans............37
SECTION
2.03. Representations,
Warranties and Covenants of the
Sellers and Master Servicer............................39
SECTION
2.04. Representations
and Warranties of the Depositor as
to the Mortgage Loans..................................41
SECTION
2.05. Delivery of
Opinion of Counsel in Connection with
Substitutions..........................................41
SECTION
2.06. Execution and
Delivery of Certificates.................42
SECTION
2.07. REMIC
Matters..........................................42
SECTION
2.08. Covenants of the
Master Servicer.......................42
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION
3.01. Master Servicer
to Service Mortgage Loans..............43
SECTION
3.02. Subservicing;
Enforcement of the Obligations of
Servicers..............................................44
SECTION
3.03. Rights of the
Depositor and the Trustee in Respect
of the Master Servicer.................................44
SECTION
3.04. Trustee to Act
as Master Servicer......................45
SECTION
3.05. Collection of
Mortgage Loan Payments; Certificate
Account; Distribution Account; Carryover Shortfall
Reserve Fund...........................................45
SECTION
3.06. Collection of
Taxes, Assessments and Similar
Items; Escrow Accounts.................................48
SECTION
3.07. Access to
Certain Documentation and Information
Regarding the Mortgage Loans...........................49
SECTION
3.08. Permitted
Withdrawals from the Certificate
Account; the Distribution Account and the
Carryover Shortfall Reserve Fund.......................49
SECTION
3.09. Maintenance of
Hazard Insurance; Maintenance of
Primary Insurance Policies.............................51
SECTION
3.10. Enforcement of
Due-on-Sale Clauses; Assumption
Agreements.............................................52
i
<PAGE>
SECTION
3.11. Realization Upon
Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans...................54
SECTION
3.12. Trustee to
Cooperate; Release of Mortgage Files........57
SECTION
3.13. Documents,
Records and Funds in Possession of
Master Servicer to be Held for the Trustee.............58
SECTION
3.14. Servicing
Compensation.................................58
SECTION
3.15. Access to
Certain Documentation........................59
SECTION
3.16. Annual Statement
as to Compliance......................59
SECTION
3.17. Annual
Independent Public Accountants' Servicing
Statement; Financial Statements........................59
SECTION
3.18. Errors and
Omissions Insurance; Fidelity Bonds.........60
SECTION
3.19. Notification of
Adjustments............................60
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION
4.01.
Advances...............................................61
SECTION
4.02. Priorities of
Distribution.............................62
SECTION
4.03. Allocation of
Net Deferred Interest....................66
SECTION 4.04.
Allocation of Realized
Losses..........................67
SECTION
4.05.
Cross-Collateralization; Adjustments to Available
Funds..................................................68
SECTION
4.06. Monthly
Statements to Certificateholders...............69
SECTION
4.07.
[Reserved].............................................71
SECTION
4.08. Determination of
Pass-Through Rates for LIBOR
Certificates...........................................71
SECTION
4.09. Carryover
Shortfall Reserve Fund.......................73
ARTICLE V
THE CERTIFICATES
SECTION
5.01. The
Certificates.......................................75
SECTION
5.02. Certificate
Register; Registration of Transfer and
Exchange of Certificates...............................75
SECTION
5.03. Mutilated,
Destroyed, Lost or Stolen Certificates......80
SECTION
5.04. Persons Deemed
Owners..................................80
SECTION
5.05. Access to List
of Certificateholders' Names and
Addresses..............................................80
SECTION
5.06. Maintenance of
Office or Agency........................81
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION
6.01. Respective
Liabilities of the Depositor and the
Master Servicer........................................82
SECTION
6.02. Merger or
Consolidation of the Depositor or the
Master Servicer........................................82
ii
<PAGE>
SECTION
6.03. Limitation on
Liability of the Depositor, the
Sellers, the Master Servicer and Others................82
SECTION
6.04. Limitation on
Resignation of Master Servicer...........83
ARTICLE VII
DEFAULT
SECTION
7.01. Events of
Default......................................84
SECTION
7.02. Trustee to Act;
Appointment of Successor...............85
SECTION
7.03. Notification to
Certificateholders.....................87
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION
8.01. Duties of
Trustee......................................88
SECTION
8.02. Certain Matters
Affecting the Trustee..................89
SECTION
8.03. Trustee Not
Liable for Certificates or Mortgage
Loans..................................................90
SECTION
8.04. Trustee May Own
Certificates...........................90
SECTION
8.05. Trustee's Fees
and Expenses............................90
SECTION
8.06. Eligibility
Requirements for Trustee...................91
SECTION
8.07. Resignation and
Removal of Trustee.....................91
SECTION
8.08. Successor
Trustee......................................92
SECTION
8.09. Merger or
Consolidation of Trustee.....................92
SECTION
8.10. Appointment of
Co-Trustee or Separate Trustee..........93
SECTION
8.11. Tax
Matters............................................94
ARTICLE IX
TERMINATION
SECTION
9.01. Termination upon
Liquidation or Purchase of all
Mortgage Loans.........................................97
SECTION
9.02. Final
Distribution on the Certificates.................97
SECTION
9.03. Additional
Termination Requirements....................98
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION
10.01.
Amendment.............................................100
SECTION
10.02. Recordation of Agreement;
Counterparts................101
SECTION
10.03. Governing
Law.........................................102
SECTION
10.04. Intention of
Parties..................................102
SECTION
10.05.
Notices...............................................102
SECTION
10.06. Severability of
Provisions............................103
SECTION
10.07.
Assignment............................................104
iii
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SECTION
10.08. Limitation on Rights of
Certificateholders............104
SECTION
10.09. Inspection and Audit
Rights...........................104
SECTION
10.10. Certificates Nonassessable and Fully
Paid.............105
SECTION
10.11.
[Reserved]............................................105
SECTION
10.12. Protection of
Assets..................................105
iv
<PAGE>
SCHEDULES
Schedule I:
Mortgage Loan Schedule.................................S-I-1
Schedule II-A: Representations and
Warranties of Countrywide.......S-II-A-1
Schedule II-B: Representations and
Warranties of Park Granada......S-II-B-1
Schedule III-A: Representations and
Warranties of Countrywide as to all
of the Mortgage Loans..............................S-III-A-1
Schedule III-B: Representations and
Warranties of Countrywide as to the
Countrywide Mortgage Loans.........................S-III-B-1
Schedule III-C: Representations and
Warranties of Park Granada as to the
Park Granada Mortgage Loans........................S-III-C-1
Schedule IV:
Representations and Warranties of the Master Servicer.S-IV-1
Schedule V:
Principal Balance Schedules [if applicable]............S-V-1
Schedule VI: Form of
Monthly Master Servicer Report................S-VI-1
EXHIBITS
Exhibit A:
Form of Senior Certificate (excluding Notional Amount
Certificates, if any)....................................A-1
Exhibit B:
Form of Subordinated Certificate.........................B-1
Exhibit C:
Form of Class A-R Certificates (if any)..................C-1
Exhibit D:
Form of Notional Amount Certificate......................D-1
Exhibit E:
Form of Reverse of Certificates..........................E-1
Exhibit F:
Form of Initial Certification of Trustee ................F-1
Exhibit G:
Form of Delay Delivery Certification of Trustee .........G-1
Exhibit H:
Form of Final Certification of Trustee...................H-1
Exhibit I:
Form of Transfer Affidavit...............................I-1
Exhibit J-1: Form of
Transferor Certificate (Residual)................J-1
Exhibit J-2: Form of
Transferor Certificate (Private).................J-2
Exhibit K:
Form of Investment Letter [Non-Rule 144A]................K-1
Exhibit L:
Form of Rule 144A Letter.................................L-1
Exhibit M:
Form of Request for Release (for Trustee)................M-1
Exhibit N:
Form of Request for Release of Documents (Mortgage
Loan) Paid in Full, Repurchased and Replaced)............N-1
Exhibit O
[Reserved]...............................................O-1
Exhibit P:
[Reserved]...............................................P-1
Exhibit Q:
Standard & Poor's LEVELS(R) Version 5.6 Glossary
Revised, Appendix E......................................Q-1
v
<PAGE>
THIS
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2005,
among CWMBS, INC., a Delaware corporation,
as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC.
("Countrywide"), a New York corporation, as a
seller (a "Seller"), PARK GRANADA LLC
("Park Granada"), a Delaware limited
liability company, as a seller (a
"Seller"), COUNTRYWIDE HOME LOANS SERVICING
LP, a Texas limited partnership, as master
servicer (the "Master Servicer"),
and THE BANK OF NEW YORK, a banking
corporation organized under the laws of
the State of New York, as trustee (the
"Trustee").
WITNESSETH THAT
In
consideration of the mutual agreements contained in this
Agreement,
the parties to this Agreement agree as
follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the
Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates.
As provided herein, the Trustee
will elect that the Trust Fund, other than
the Carryover Shortfall Reserve
Fund, be treated for federal income tax
purposes as comprising three real
estate mortgage investment conduits (each a
"REMIC" or, in the alternative,
the "Lower Tier REMIC," the "Middle Tier
REMIC" and the "Master REMIC,"
respectively). The Lower Tier REMIC will
hold as assets all property of the
Trust Fund, other than the Carryover
Shortfall Reserve Fund, and will be
evidenced by (i) the Lower Tier REMIC
Regular Interests, which will be
uncertificated and will represent the
"REMIC regular interests" in the Lower
Tier REMIC, and (ii) the Class LTR-A-R
Interest, which will represent the
"REMIC residual interest" in the Lower Tier
REMIC. The Middle Tier REMIC will
hold as assets the Lower Tier REMIC Regular
Interests and will be evidenced
(i) by the Middle Tier REMIC Regular
Interests, which will be uncertificated
and will represent the REMIC regular
interests in the Middle Tier REMIC, and
(ii) the Class MTR-A-R Interest, which will
represent the REMIC residual
interest in the Middle Tier REMIC. The
Master REMIC will hold as assets the
Middle Tier REMIC Regular Interests and
will be evidenced by the Certificates,
each of which (other than the Class A-R
Certificate) will represent ownership
of one or more REMIC regular interests in
the Master REMIC. The Class A-R
Certificate will represent ownership of the
sole Class of the REMIC residual
interest in each of the Lower Tier REMIC,
the Middle Tier REMIC and the Master
REMIC. The latest possible maturity date,
for federal income tax purposes, of
all REMIC regular interests created herein
shall be the Latest Possible
Maturity Date.
<PAGE>
The
following table specifies the Class designation, interest rate,
and
principal amount for each Class of Lower
Tier REMIC Interests:
Initial
Pass-Through
Corresponding
Lower Tier REMIC Interests
Balance
Rate
Loan Group
--------------------------
-------
----
----------
LT-A-1 (0.9% of SP Gr. 1).....
(1)
(2)
1
LT-B-1 (0.1% of SP Gr. 1).....
(1)
(2)
1
LT-C-1 (Excess of Gr. 1)......
(1)
(2)
1
LT-A-2 (0.9% of SP Gr. 2).....
(1)
(2)
2
LT-B-2 (0.1% of SP Gr. 2).....
(1)
(2)
2
LT-C-2 (Excess of Gr. 2)......
(1)
(2)
2
LT-A-R........................
(3)
(3)
N/A
---------------
(1) With respect to the
Interests, each Lower Tier REMIC Interest having an
"A"
designation (each, an "LT-A Interest") will have a principal
balance
initially
equal to 0.9% of the Subordinated Portion ("SP") of its
Corresponding Loan Group. Each Lower Tier REMIC Interest having a
"B"
designation (each, an "LT-B Interest") will have a principal
balance
initially
equal to 0.1% of the SP of its Corresponding Loan Group. The
initial
principal balance of each Lower Tier REMIC Interest having a
"C"
designation (each, an "LT-C Interest") will equal the excess of
its
Corresponding Loan Group over the initial aggregate principal
balances
of the
LT-A and LT-B Interests corresponding to such Loan Group.
(2) A Rate equal to the weighted
average of the Adjusted Net Mortgage Rates
of the
Mortgage Loans of the Corresponding Loan Group.
(3) This Lower Tier REMIC
Interest is the sole class of residual interest in
the Lower
Tier REMIC. It has no principal balance and pays no principal
or
interest.
On each
Distribution Date, the Available Funds shall be distributed
with
respect to the Lower Tier REMIC Interests
in the following manner:
(1) Interest. Interest is to be
distributed with respect to each Lower Tier
REMIC
Interest at the rate, or according to the formulas, described
above.
(2) Principal if no Cross-Over
Situation Exists. If no Cross-Over Situation
exists
with respect to any Lower Tier REMIC Interest, then principal
amounts
distributable with respect to each Loan Group will be
allocated:
first to
cause the Loan Group's corresponding LT-A and LT-B Interests to
equal,
respectively, 0.9% of the SP and 0.1% of the SP of the
Corresponding Loan Group, and then to the corresponding LT-C
Interest.
(3) Principal if a Cross-Over
Situation Exists. If a Cross-Over Situation
exists
with respect to the LT-A and LT-B Interests then:
(a)
if the Calculation Rate in respect of the outstanding LT-A and
LT-B
Interests is less than the Subordinate Net
Rate Cap, Principal Relocation
Payments will be made proportionately to
the outstanding LT-A Interests prior
to any other principal distributions from
each such Loan Group; and
2
<PAGE>
(b) if the
Calculation Rate in respect of the outstanding LT-A and LT-B
Interests is greater than the Subordinate
Net Rate Cap, Principal Relocation
Payments will be made proportionately to
the outstanding LT-B Interests prior
to any other principal distributions from
each such Loan Group.
In each case, Principal Relocation Payments
will be made so as to cause the
Calculation Rate in respect of the
outstanding LT-A and LT-B Interests to
equal the Subordinate Net Rate Cap. With
respect to each Loan Group, if (and
to the extent that) the sum of (a) the
principal payments comprising the
Principal Remittance Amount for the related
Distribution Date and (b) the
Realized Losses, are insufficient to make
the necessary reductions of
principal on the LT-A and LT-B Interests,
then interest will be added to the
Loan Group's LT-C Interest.
(c) The
outstanding aggregate LT-A and LT-B Interests for both Loan
Groups will not be reduced below 1 percent
of the excess of (i) the aggregate
Stated Principal Balance of the Mortgage
Loans for such Distribution Date over
(ii) the Senior Certificates related to the
Loan Groups as of the related
Distribution Date (after taking into
account distributions of principal on
such Distribution Date).
If (and to
the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the LT-A and
LT-B Interests of a Loan Group, and
if the Loan Group's corresponding LT-C
Interest has already been reduced to
zero, then the excess principal from that
Loan Group will be paid to the LT-C
Interest of the other Loan Group, the
aggregate LT-A and LT-B Interests of
which are less than one percent of the
Subordinated Portion. If the Loan Group
of the corresponding LT-C Interest that
receives such payment has a weighted
average Adjusted Net Mortgage Rate below
the weighted average Adjusted Net
Mortgage Rate of the Loan Group making the
payment, then the payment will be
treated by Lower Tier REMIC as a Realized
Loss. Conversely, if the Loan Group
of the LT-C Interest that receives such
payment has a weighted average
Adjusted Net Mortgage Rate above the
weighted average Adjusted Net Mortgage
Rate of the Loan Group making the payment,
then the payment will be treated by
the Lower Tier REMIC as a reimbursement for
prior Realized Losses.
3
<PAGE>
The
following table specifies the Class designation, interest rate,
and
principal amount for each Class of Middle
Tier REMIC Interests:
--------------------------------------------------------------------------------
Middle Tier REMIC Initial Principal
Interest Rate
Corresponding
Master
Interest
Balance
REMIC Certificate
--------------------------------------------------------------------------------
MT-1-A-1
(1)
(2)
Class 1-A-1
--------------------------------------------------------------------------------
MT-1-A-2
(1)
(2)
Class 1-A-2
--------------------------------------------------------------------------------
MT-1-A-3
(1)
(2)
Class 1-A-3
--------------------------------------------------------------------------------
MT-1-A-4
(1)
(2)
Class 1-A-4
--------------------------------------------------------------------------------
MT-1-A-5
(1)
(2)
Class 1-A-5
--------------------------------------------------------------------------------
MT-1-X-Accrual
(1)
(2)
N/A
--------------------------------------------------------------------------------
MT-2-A-1
(3)
(4)
Class 2-A-1
--------------------------------------------------------------------------------
MT-2-A-2
(3)
(4)
Class 2-A-2
--------------------------------------------------------------------------------
MT-2-X-Accrual
(3)
(4)
N/A
--------------------------------------------------------------------------------
MT-$100
$100.00
(2)
Class A-R
--------------------------------------------------------------------------------
MT-M-1
(5)
(6)
Class M-1
--------------------------------------------------------------------------------
MT-M-2
(5)
(6)
Class M-2
--------------------------------------------------------------------------------
MT-M-3
(5)
(6)
Class M-3
--------------------------------------------------------------------------------
MT-M-4
(5)
(6)
Class M-4
--------------------------------------------------------------------------------
MT-M-5
(5)
(6)
Class M-5
--------------------------------------------------------------------------------
MT-M-6
(5)
(6)
Class M-6
--------------------------------------------------------------------------------
MT-M-7
(5)
(6)
Class M-7
--------------------------------------------------------------------------------
MT-B-1
(5)
(6)
Class B-1
--------------------------------------------------------------------------------
MT-B-2
(5)
(6)
Class B-2
--------------------------------------------------------------------------------
MT-B-3
(5)
(6)
Class B-3
--------------------------------------------------------------------------------
MT-B-4
(5)
(6)
Class B-4
--------------------------------------------------------------------------------
MT-B-5
(5)
(6)
Class B-5
--------------------------------------------------------------------------------
MT-MX-Accrual
(5)
(6)
N/A
--------------------------------------------------------------------------------
MT-A-R
(7)
(7)
N/A
------------------------------------------------------------------------------
(1) This Middle Tier REMIC
Interest has a principal balance that is
initially
equal to 50% of its Corresponding Certificate Class issued by
the Master
REMIC. Principal payments, both scheduled and prepaid,
Realized
Losses, Subsequent Recoveries and interest accruing on the
MT-1-X-Accrual Interest will be allocated to this class to maintain
its
size
relative to its Corresponding Certificate Class (that is, 50%)
with
any excess
payments of principal, Realized Losses and Subsequent
Recoveries
being allocated to the MT-1-X-Accrual Interest in such manner
as to
cause the principal balance of the MT-1-X
4
<PAGE>
Accrual
Interest to have a principal balance equal to the principal
balance of
the Class MT-1-A-1, Class MT-1-A-2, Class MT-1-A-3, Class
MT-1-A-4
and Class MT-1-A-5 Interests (the "MT-1-A Interests" and
together
with the MT-1-X Accrual Interest, the "MT-1 Interests") plus
(b) 100%
of the net deferred interest allocated to the Class 1-X
Certificates.
(2) The interest rate with
respect to any Distribution Date (and the related
Interest
Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate of
Loan Group
1 (the "Group 1 Net Rate Cap").
(3) This Middle Tier REMIC
Interest has a principal balance that is
initially equal to 50%
of its Corresponding Certificate Class issued by
the Master
REMIC. Principal payments, both scheduled and prepaid,
Realized
Losses, Subsequent Recoveries and interest accruing on the
MT-2-X-Accrual Interest will be allocated to this class to maintain
its
size
relative to its Corresponding Certificate Class (that is, 50%)
with
any excess
payments of principal, Realized Losses and Subsequent
Recoveries
being allocated to the MT-2-X-Accrual Interest in such manner
as to
cause the principal balance of the MT-2-X Accrual Interest to
have
a
principal balance equal to the principal balance of the Class
MT-2-A-1
and Class
MT-2-A-2 Interests (the "MT-2-A Interests" and together with
the MT-2-X Accrual Interest, the
"MT-2 Interests") plus (b) 100% of the
net
deferred interest allocated to the Class 2-X Certificates.
(4) The interest rate with
respect to any Distribution Date (and the related
Interest
Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate of
Loan Group
2 (the "Group 2 Net Rate Cap").
(5) This Middle Tier REMIC
Interest has a principal balance that is
initially
equal to 50% of its Corresponding Certificate Class issued by
the Master
REMIC. Principal payments, both scheduled and prepaid,
Realized
Losses, Subsequent Recoveries and interest accruing on the
MT-M-X-Accrual Interest will be allocated to this class to maintain
its
size
relative to its Corresponding Certificate Class (that is, 50%)
with
any excess
payments of principal, Realized Losses and Subsequent
Recoveries
being allocated to the MT-M-X-Accrual Interest in such manner
as to
cause the principal balance of the MT-M-X Accrual Interest to
have
a
principal balance equal to the principal balance of the Class
MT-M-1,
Class
MT-M-2, Class MT-M-3, Class MT-M-4, Class MT-M-5, Class MT-M-6,
Class
MT-M-7, Class MT-B-1, Class MT-B-2, Class MT-B-3, Class MT-B-4
and
Class
MT-B-5 Interests (the "MT-M and MT-B Interests" and together
with
the MT-M-X
Accrual Interest, the "MT-S Interests") plus (b) 100% of the
net
deferred interest allocated to the Class M-X Certificates.
(6) The interest rate with
respect to any Distribution Date (and the related
Interest
Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate
equal to the Subordinate Weighted Average Rate.
(7) The MT-A-R is the sole Class
of residual interest in the Middle Tier
REMIC. It
pays no interest or principal.
5
<PAGE>
On each
Distribution Date, the Available Funds payable with respect to
the Lower Tier REMIC Interest (other than
the Class LT-A-R Interest) shall be
distributed with respect to the Middle Tier
REMIC Interests in the following
manner:
(1)
Interest is to be distributed with respect to each Middle Tier
REMIC
Interest at the rate, or according to the
formulas, described above; and
(2)
Principal is to be distributed with respect to each Middle Tier
REMIC Interest in the same manner and in
the same amount as principal is
distributed with respect to each Middle
Tier REMIC Interest's Corresponding
Class or Classes of Certificates.
On each
Distribution Date, Realized Losses (and increases in Principal
Balances attributable to Subsequent
Recoveries) shall be allocated among the
Middle Tier REMIC Interests in the same
manner that Realized Losses (and
increases in Class Certificate Balances
attributable to Subsequent Recoveries)
are allocated among each Middle Tier REMIC
Interest's Corresponding Class or
Classes of Certificates.
The
following table sets forth characteristics of the Master REMIC
Certificates, together with minimum
denominations and integral multiples in
excess thereof in which such Classes shall
be issuable (except that one
Certificate of each Class of Certificates
may be issued in a different amount
and, in addition, one Residual Certificate
representing the Tax Matters Person
Certificate may be issued in a different
amount):
--------------------------------------------------------------------------------
Pass-Through
Integral
Initial Class Rate
Multiples
Class
Certificate (per annum)
Minimum
in Excess of
Designation
Balance
(8)
Denomination
Minimum
--------------------------------------------------------------------------------
Class 1-A-1
$275,000,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class 1-A-2 $590,463,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class 1-A-3
$169,305,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class 1-A-4
$76,636,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class 1-A-5
$147,700,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class 1-X
$1,259,104,000(2) (3)
$100,000.00(4) $1,000.00
--------------------------------------------------------------------------------
Class 2-A-1
$81,223,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class 2-A-2
$54,149,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class 2-X
$135,372,000(2) (3)
$100,000.00(4) $1,000.00
--------------------------------------------------------------------------------
Class A-R(5)
$100
(6)
(7)
(7)
--------------------------------------------------------------------------------
Class M-X
$122,083,318(2) (3)
$100,000.00(4) $1,000.00
--------------------------------------------------------------------------------
Class M-1
$18,957,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class M-2
$17,440,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class M-3
$9,858,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class M-4
$16,682,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
6
<PAGE>
--------------------------------------------------------------------------------
Pass-Through
Integral
Initial Class Rate
Multiples
Class
Certificate (per annum)
Minimum
in Excess
of
Designation
Balance
(8)
Denomination
Minimum
--------------------------------------------------------------------------------
Class M-5
$9,858,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class M-6
$8,341,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class M-7
$8,341,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class B-1
$1,517,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class B-2
$2,275,000
(1)
$25,000.00
$1,000.00
--------------------------------------------------------------------------------
Class B-3
$12,132,000
(1)
$100,000.00
$1,000.00
--------------------------------------------------------------------------------
Class B-4
$10,616,000
(1)
$100,000.00
$1,000.00
--------------------------------------------------------------------------------
Class B-5
$6,066,318
(1)
$100,000.00
$1,000.00
--------------------------------------------------------------------------------
------------------------------------
(1) The Pass-Through Rate for
the LIBOR Certificates for each Interest
Accrual
Period related to each Distribution Date will be a per annum
rate equal
to the lesser of (a) LIBOR plus the applicable Pass-Through
Margin for
such Class and (b) the related Net Rate Cap. The per annum
Pass-Through Rates for the
LIBOR Certificates for the Interest Accrual
Period
related to the first Distribution Date are:
Class of LIBOR
Certificates
Pass-Through Rate
------------
-----------------
Class 1-A-1..........
2.960%
Class 1-A-2..........
2.950%
Class 1-A-3..........
2.890%
Class 1-A-4..........
3.030%
Class 1-A-5..........
3.000%
Class 2-A-1..........
2.940%
Class 2-A-2..........
2.970%
Class M-1............
1.567%
Class M-2............
1.567%
Class M-3............
1.567%
Class M-4............
1.567%
Class M-5............
1.567%
Class M-6............
1.567%
Class M-7............
1.567%
Class B-1............
1.567%
Class B-2............
1.567%
Class B-3............
1.567%
Class B-4............
1.567%
Class B-5............
1.567%
------------------------------------------------------------------------------
(2) This Class of Certificates
initially will have no Class Certificate
Balance
and will bear interest on the Component Notional Amount of its
Notional
Amount Component. The
7
<PAGE>
initial
Component Notional Amount of such Notional Amount Component is
the amount
specified in the foregoing table.
(3) Interest will accrue with
respect to this Class of Certificates for each
Interest
Accrual Period related to each Distribution Date in an amount
equal to
the sum of the interest accrued on its Notional Amount
Component
(based upon the Component Notional Amount) and the Principal
and
Interest Component (based upon the Component Principal Balance)
at
its
respective Pass-Through Rate for that Distribution Date. For
federal
income tax
purposes:
A.
The Class
1-X Certificates
are entitled to, for each Interest
Accrual Period, the
"Class 1-X Distributable Amount," which is a
specified portion of
the interest on the MT-1 Interests equal to
the excess of the Loan
Group 2 Net Rate Cap
over the product
of
two and the weighted
average interest rate
of the MT-1 Interests
with each Interest (other than the Class MT-1-X-Accrual
Interest)
subject to
a cap equal to the Pass-Through Rate of the
corresponding
Certificate Class and the MT-1-X-Accrual Interest
subject to a cap of
0.00%. The Pass-Through Rate of the Class
1-X Certificates
shall be a rate
sufficient to entitle the Class
1-X Certificate
to all interest accrued on the MT-1 Interests
less the interest accrued on the Class 1-A-1, Class 1-A-2, Class
1-A-3, Class
1-A-4 and Class 1-A-5
Certificates.
The Class 1-X
Distributable
Amount for
any Distribution Date (except for
amounts reducing
the balance of its Principal and Interest
Component) is
payable from current interest on the Group 2
Mortgage Loans.
B.
The Class
2-X Certificates
are entitled to, for each Interest
Accrual Period, the
"Class 2-X Distributable Amount," which is a
specified portion of
the interest on the MT-2 Interests equal to
the excess of the Loan
Group 2 Net Rate Cap
over the product
of
two and the weighted
average interest rate
of the MT-2 Interests
with each Interest (other than the Class MT-2-X-Accrual
Interest)
subject to
a cap equal to the Pass-Through Rate of the
corresponding
Certificate Class and the MT-2-X-Accrual Interest
subject to a cap of
0.00%. The Pass-Through Rate of the Class
2-X Certificates
shall be a rate
sufficient to entitle the Class
2-X Certificate
to all interest accrued on the MT-2 Interests
less the interest
accrued on the Class 2-A-1 and Class 2-A-2
Certificates.
The Class 2-X Distributable Amount for any
Distribution Date
(except for amounts reducing the balance of its
Principal and
Interest Component) is payable from current
interest on the Group 2 Mortgage Loans.
C.
The Class
M-X Certificates
are entitled to, for each Interest
Accrual Period, the
"Class M-X Distributable Amount," which is a
specified portion of
the interest on the MT-S Interests equal to
the excess
of the Subordinate Weighted Average Rate over the
product of two and the weighted average interest rate of the
MT-S
Interests with each Interest (other than the Class MT-M-X-Accrual
Interest) subject to a
cap equal to the Pass-Through Rate of the
corresponding
Certificate Class and the MT-M-X-Accrual Interest
subject to a cap of
0.00%. The Pass-Through Rate of the Class
M-X Certificates
shall be a rate
sufficient to entitle the Class
M-X Certificate
to all interest accrued on the MT-M and MT-B
Interests less the
interest accrued on
the Class M-1, Class M-2,
Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class B-1,
Class B-2, Class B-3,
Class B-4 and
8
<PAGE>
Class B-5 Certificates. The Class M-X Distributable Amount for
any
Distribution Date (except for amounts reducing the balance of
its
Principal and Interest Component) is payable from current
interest
on the Mortgage Loans in all Loan Groups.
(4) Minimum denomination is
based on the Notional Amount of such Class.
(5) The Class A-R Certificates
represent the sole Class of residual interest
in the
Master REMIC.
(6) The Pass-Through Rate for
the Class A-R Certificates for the Interest
Accrual
Period related to each Distribution Date will be a per annum
rate equal
to the Weighted Average Adjusted Net Mortgage Rate of the
Group 1
Mortgage Loans. The Pass-Through Rate for the Class A-R
Certificates for the Interest Accrual Period related to the
first
Distribution Date will be 1.608465% per annum.
(7) The Class A-R Certificates
will be issued as two separate certificates,
one with
an initial Certificate Balance of $99.99 and the Tax Matters
Person
Certificate with an initial Certificate Balance of $0.01.
(8) For income tax purposes, the
entitlement of any Certificate to any
Carryover
Shortfall Amount shall be treated as described in Section 8.11
hereof.
It is not intended that the Class A-R
Certificates be entitled to any cash
flows pursuant to this agreement except as
provided in Sections 4.02(a)(1)(ii)
and 4.04(a)(1)(ii)(A) hereunder, (that is,
its entitlement to $100 plus
interest thereon).
9
<PAGE>
Set forth
below are designations of Classes or Components of
Certificates and other defined terms to the
categories used in this Agreement:
Accretion Directed
Certificates............ None.
Accretion Directed
Components.............. None.
Accrual Certificates.... None.
Accrual Components...... None.
Book-Entry Certificates. All
Classes of Certificates other than
the Physical Certificates.
Class X Certificates.... Class 1-X,
Class 2-X and Class M-X Certificates.
COFI Certificates....... None.
Component Certificates.. The Class
X Certificates.
Components.............. Each Class
of Component Certificates is
composed of a Notional Amount Component and a
Principal and Interest Component. The
following table sets forth each Class of
Component Certificates, its Notional Amount
Component, its Principal and Interest
Component, the respective initial Component
Notional Amount or Component Principal Balance,
as the case may be, and Pass-Through Rate.
Notional Amount
Component/Principal
Initial Initial
and Interest Component Component
Class of Component Component/Principal
Principal Notional Pass-Through
Certificates
Only Component Balance
Amount Rate
------------
-------------- -------
------ ----
Class 1-X
Class 1-X IO Component N/A $1,259,104,000
(1)
Class 1-X P Component $0
N/A
(2)
Class 2-X
Class 2-X IO Component N/A $135,372,000
(1)
Class 2-X P Component $0 N/A
(2)
Class M-X
Class M-X IO Component N/A $122,083,318
(3)
Class M-X P Component $0
N/A
(4)
(1) For the Interest Accrual Period related to
each Distribution Date, a per annum rate equal
to the excess, if any, of (i) the Weighted
Average Adjusted Net Mortgage Rate of the
Mortgage Loans in the related Loan Group over
(ii) the sum of (a) the weighted average of the
Pass-Through Rates of the Senior LIBOR
Certificates relating to such Loan Group (as
adjusted to reflect the accrual of interest on
the basis of a 360-day year consisting of twelve
30-day months) for their corresponding Interest
Accrual Period (which in the case of the first
Interest Accrual Period will be calculated
assuming an Interest Accrual Period that begins
on the Closing Date). The Pass-Through Rate for
10
<PAGE>
the Notional Amount Component of each Class of
Senior Class X Certificates for the Interest
Accrual Period related to the first Distribution
Date is 0.000000% per annum.
(2) For the Interest Accrual Period related to
each Distribution Date, a per annum rate equal
to the Weighted Average Adjusted Net Mortgage
Rate of the Mortgage Loans in the related Loan
Group. The Pass-Through Rates for the Principal
and Interest Components for the Interest Accrual
Period related to the first Distribution Date
are as set in the following table.
Initial
Designation
Pass-Through Rate
-----------
-----------------
Class 1-X P Component
1.608139%
Class 2-X P Component
1.184864%
(3) For the Interest Accrual Period related to
each Distribution Date, a per annum rate equal
to the excess, if any, of (i) the Subordinate
Weighted Average Rate over (ii) the weighted
average of the Pass-Through Rates of the
Subordinate LIBOR Certificates (as adjusted to
reflect the accrual of interest on the basis of
a 360-day year consisting of twelve 30-day
months) for their corresponding Interest Accrual
Period (which in the case of the first Interest
Accrual Period will be calculated assuming an
Interest Accrual Period that begins on the
Closing Date). The Pass-Through Rate for the
Class M-X IO Component for the Interest Accrual
Period related to the first Distribution Date is
0.000000% per annum.
(4) For the Interest Accrual Period related to
each Distribution Date, a per annum rate equal
to the Subordinate Weighted Average Rate (as
adjusted to reflect the accrual of interest on
the basis of a 360-day year consisting of twelve
30-day months). The Pass-Through Rate for the
Class M-X P Component for the Interest Accrual
Period related to the first Distribution Date is
1.567049% per annum.
Delay Certificates...... All
interest-bearing
Classes of Certificates
other than the Non-Delay Certificates, if any.
ERISA-Restricted
Certificates............ The
Residual
Certificates, the Private
Certificates and
any Certificate of a Class
that does not or no longer satisfies the
applicable
rating
requirement
under the
Underwriter's Exemption.
Group 1 Senior
Certificates ........... The Class
1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-X and Class
A-R Certificates.
Group 1 Certificates.... The
Group
1 Senior Certificates and the
Subordinated Portion related to Loan Group 1.
Group 2 Senior
Certificates............ The
Class 2-A-1, Class 2-A-2 and Class
2-X Certificates.
Group 2 Certificates.... The
Group
2 Senior Certificates and the
Subordinated Portion related to Loan Group 2.
11
<PAGE>
LIBOR Certificates...... The
Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4,
Class 1-A-5,
Class 2-A-1,
Class
2-A-2, Class M-1,
Class M-2,
Class M-3, Class
M-4, Class
M-5, Class M-6, Class M-7, Class
B-1, Class B-2,
Class B-3, Class B-4
and Class
B-5 Certificates.
Non-Delay Certificates.. The LIBOR
Certificates.
Notional Amount
Certificates............ None.
Notional Amount
Components.............. The Class
1-X IO, Class 2-X IO and Class M-X IO
Components.
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 and Interest
Components.............. The Class
1-X P, Class 2-X P and Class M-X P
Components.
Principal Only
Certificates............ None.
Private Certificates.... The Class
B-3, Class B-4 and Class B-5
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 Certificates.
Scheduled Principal
Classes................. None.
Senior Certificate
Group................... The Group
1 Senior Certificates
and Group
2 Senior Certificates, as applicable.
Senior Certificates.....
Collectively, the
Group 1 Senior
Certificates
and the Group 2 Senior Certificates.
Senior Class X
Certificates............ Class 1-X
and Class 2-X Certificates.
12
<PAGE>
Senior LIBOR
Certificates............ Class
1-A-1, Class 1-A-2, Class 1-A-3, Class
1-A-4, Class 1-A-5, Class 2-A-1 and Class
2-A-2 Certificates.
Subordinated
Certificates............ Class M-X,
Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7,
Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates.
Subordinated LIBOR
Certificates............ Class
M-1, Class M-2, Class M-3, Class M-4,
Class M-5,
Class M-6,
Class M-7, Class B-1,
Class B-2, Class B-3,
Class B-4 and Class B-5
Certificates.
Targeted Principal
Classes................. None.
Underwriter............. UBS
Securities LLC
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.
13
<PAGE>
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the
following words and phrases, unless the
context otherwise requires, shall have the
following meanings:
Accretion
Directed Certificates:
As specified in the Preliminary
Statement.
Accretion
Direction Rule: Not
applicable.
Accrual
Amount: With respect to any Class of Accrual Certificates or
any
Accrual Components and any Distribution
Date prior to the related Accrual
Termination Date, the amount allocable to
interest on such Class of Accrual
Certificates or Accrual Components with
respect to such Distribution Date
pursuant to Section 4.02(a).
Accrual
Certificates: As
specified in the Preliminary Statement.
Accrual
Components: As
specified in the Preliminary Statement.
Accrual
Termination Date: Not
applicable.
Adjusted
Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate
less the Master Servicing Fee Rate.
Adjusted
Net Mortgage Rate: As to each Mortgage Loan, and at any time,
the per annum rate equal to the Mortgage
Rate less the Expense Fee Rate.
Adjusted
Cap Rate: For any Distribution Date and each Class of Senior
LIBOR Certificates and each Class of Class
X Certificates, the excess, if any,
of the Weighted Average Adjusted Net
Mortgage Rate for the related Loan Group
for such Distribution Date, adjusted to
reflect the accrual of interest on the
basis of a 360-day year and the actual
number of days that elapsed in the
related Interest Accrual Period, 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 that elapsed in the related
Interest Accrual Period, and (ii) the Net
Deferred Interest for the related Loan
Group for that Distribution Date, and
the denominator of which is the aggregate
Stated Principal Balance of the
Mortgage Loans in the related Loan Group at
the end of the Prepayment Period
related to the immediately preceding
Distribution Date.
Adjusted
Subordinated Portion: With respect to any Distribution Date and
for each Loan Group, (i) the aggregate
Stated Principal Balance of such Loan
Group as of the Due Date occurring in the
month immediately preceding the
month in which such Distribution Date
occurs (after giving effect to Principal
Prepayments received in the Prepayment
Period relating to such Due Date) less
(ii) the sum of (a) the Component Principal
Balance of the Class M-X
Certificates attributable to Deferred
Interest from such Loan Group and (b)
the aggregate Class Certificate Balance of
the related Classes of Senior
Certificates in either case immediately
prior to such Distribution Date.
<PAGE>
Adjusted
Subordinate Weighted Average Rate: For each Distribution Date,
the Subordinated Adjusted Cap Rate for such
Distribution Date. For federal
income tax purposes, the Adjusted
Subordinate Weighted Average Rate will be
the Calculation Rate in respect of the
Class C and Class D Interests in the
Lower Tier REMIC.
Adjustment
Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related
Mortgage Loan will be adjusted.
Advance:
As to each Loan Group, the payment required to be made by the
Master Servicer with respect to any
Distribution Date pursuant to Section
4.01, the amount of any such payment being
equal to the aggregate of payments
of principal and interest (net of the
Master Servicing Fee) on the Mortgage
Loans in such Loan Group that were due on
the related Due Date and not
received by the Master Servicer as of the
close of business on the related
Determination Date, together with an amount
equivalent to interest on each
Mortgage Loan as to which the related
Mortgaged Property is an REO Property
(net of any net income on such REO
Property), less the aggregate amount of any
such delinquent payments that the Master
Servicer has determined would
constitute a Nonrecoverable Advance if
advanced.
Aggregate
Planned Balance: With respect to any group of Planned
Principal Classes or Components and any
Distribution Date, the amount set
forth for such group for such Distribution
Date in Schedule V hereto.
Aggregate
Subordinated Percentage: As to any Distribution Date, the
fraction, expressed as a percentage, the
numerator of which is equal to the
aggregate Class Certificate Balance of the
Subordinated Certificates
immediately prior to such Distribution Date
and the denominator of which is
the aggregate Stated Principal Balance of
all the Mortgage Loans as of the Due
Date in the month preceding the month of
such Distribution Date (after giving
effect to Principal Prepayments received in
the Prepayment Period related to
that prior Due Date).
Aggregate
Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any
Distribution Date, the amount set
forth for such group for such Distribution
Date in Schedule V hereto.
Agreement:
This Pooling and Servicing Agreement and all amendments or
supplements to this Pooling and Servicing
Agreement.
Allocable
Share: As to any Distribution Date, any Loan Group and any
Class or Component of Certificates, the
ratio that the amount calculated with
respect to such Distribution Date (A) with
respect to the Senior Certificates
of the related Senior Certificate Group,
pursuant to clause (i) of the
definition of Class Optimal Interest
Distribution Amount (without giving
effect to any reduction of such amount
pursuant to Section 4.02(d)) and (B)
with respect to the Subordinated
Certificates, pursuant to the definition of
Assumed Interest Amount for such Class or
after a Senior Termination Date,
pursuant to clause (i) of the definition of
Class Optimal Interest
Distribution Amount (without giving effect
to any reduction of such amount
pursuant to Section 4.02(d)) bears to the
aggregate amount calculated with
respect to such Distribution Date for each
such related Class of Certificates
pursuant to clause (i) of the definition of
Class Optimal Interest
Distribution Amount (without giving effect
to any reduction of such amounts
2
<PAGE>
pursuant to Section 4.02(d)) or the
definition of Assumed Interest Amount for
such Loan Group and Class, as
applicable).
Amount
Held for Future Distribution: As to any Distribution Date and
Mortgage Loans in a Loan Group, the
aggregate amount held in the Certificate
Account at the close of business on the
related Determination Date on account
of (i) Principal Prepayments received after
the related Prepayment Period and
Liquidation Proceeds and Subsequent
Recoveries received in the month of such
Distribution Date relating to Mortgage
Loans in that Loan Group and (ii) all
Scheduled Payments due after the related
Due Date relating to Mortgage Loans
in that Loan Group.
Applicable
Credit Support Percentage: As defined in Section 4.02(e).
Appraised
Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be:
(i) with respect to a Mortgage
Loan other than a Refinancing Mortgage
Loan, the lesser of (a) the value of
the Mortgaged Property based upon the
appraisal made at the time of the
origination of such Mortgage Loan and (b)
the sales price of the Mortgaged
Property at the time of the origination of
such Mortgage Loan; (ii) with
respect to a Refinancing Mortgage Loan
other than a Streamlined Documentation
Mortgage Loan, the value of the Mortgaged
Property based upon the appraisal
made-at the time of the origination of such
Refinancing Mortgage Loan; and
(iii) with respect to a Streamlined
Documentation Mortgage Loan, (a) if the
loan-to-value ratio with respect to the
Original Mortgage Loan at the time of
the origination thereof was 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.
Assumed
Interest Amount: With respect to any Distribution Date, any
Class of Subordinated Certificates and any
Loan Group, one month's interest
accrued during the related Interest Accrual
Period at the Pass-Through Rate
for such Class on the related Subordinated
Portion immediately prior to that
Distribution Date.
Available
Funds: As to any Distribution Date and each Loan Group, the
sum of (a) the aggregate amount held in the
Certificate Account at the close
of business on the related Determination
Date in respect of the related
Mortgage Loans pursuant to Section 3.05(b),
net of the related Amount Held for
Future Distribution and net of amounts
permitted to be withdrawn from the
Certificate Account pursuant to clauses
(i)-(viii), inclusive, of Section
3.08(a) in respect of the Mortgage Loans in
that Loan Group and amounts
permitted to be withdrawn from the
Distribution Account pursuant to clauses
(i)-(v) inclusive of Section 3.08(b) in
respect of the Mortgage Loans in that
Loan Group, (b) the amount of the related
Advance, (c) in connection with
Defective Mortgage Loans in such Loan
Group, as applicable, the aggregate of
the Purchase Prices and Substitution
Adjustment Amounts deposited on the
related Distribution Account Deposit Date,
and (d) the Transfer Payment
Received plus interest thereon as provided
in Section 4.05 for such Loan Group
less the Transfer Payment Made plus
interest thereon as provided in Section
4.05 for such Loan Group; provided,
however, that on a Senior Termination
Date, Available Funds with respect to the
Loan Group relating to the remaining
Senior Certificate Group shall include the
Available Funds from the other Loan
Group and on any Distribution
3
<PAGE>
Date thereafter, Available Funds shall be
calculated based upon all the
Mortgage Loans in the Mortgage Pool, as
opposed to the Mortgage Loans in the
related Loan Group.
Bankruptcy
Code: The United
States Bankruptcy Reform Act of 1978, as
amended.
Book-Entry
Certificates: As
specified in the Preliminary Statement.
Business
Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the
City of New York, New York, or the
States of California or Texas or the city
in which the Corporate Trust Office
of the Trustee is located are authorized or
obligated by law or executive
order to be closed.
Calculation Rate: For each Distribution Date, (a) in the case of
the
Class A and Class B Lower Tier REMIC
Interests, the product of (i) 10 and (ii)
the weighted average rate of the
outstanding Class A and Class B Interests,
treating each Class A Interest as capped at
zero or reduced by a fixed
percentage of 100% of the interest accruing
on such Class A Interest, and (b)
in the case of the Class C and Class D
Lower Tier REMIC Interests, the product
of (i) 10 and (ii) the weighted average
rate of the outstanding Class C and
Class D Interests, treating each Class C
Interest as capped at zero or reduced
by a fixed percentage of 100% of the
interest accruing on such Class C
Interest.
Carryover
Shortfall Amount: For any Class of LIBOR Certificates and any
Distribution Date, the sum of (a) the
excess, if any, of (i) the amount of
interest such Class of Certificates would
have been entitled to receive on
such Distribution Date had the applicable
Pass-Through Rate not been subject
to the related Net Rate Cap, over (ii) the
amount of interest such Class of
Certificates received on such Distribution
Date based on the related Net Rate
Cap (in each case, prior to the reduction
for Net Deferred Interest and Net
Interest Shortfalls) and (b) the unpaid
portion of any such excess from prior
Distribution Dates (and interest accrued
thereon at the then applicable
Pass-Through Rate on such Class of
Certificates, without giving effect to the
related Net Rate Cap).
Carryover
Shortfall Reserve Fund: The separate fund 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 LIBOR Certificates and the
Class X Certificates and designated "The
Bank of New York in trust for
registered holders of CWMBS, Inc., CHL
Mortgage Pass-Through Trust 2005-3,
Mortgage Pass-Through Certificates, Series
2005-3." Funds in the Carryover
Shortfall Reserve Fund shall be held in
trust for the Holders of the LIBOR
Certificates and the Class X Certificates
for the uses and purposes set forth
in this Agreement.
Carryover
Shortfall Reserve Fund Additional Deposit Amount:
$1,185,821.28.
Certificate: Any one
of the Certificates executed by the Trustee in
substantially the forms attached to this
Agreement as exhibits.
Certificate Account: The separate Eligible Account or Accounts
created
and maintained by the Master Servicer
pursuant to Section 3.05 with a
depository institution in the name of the
Master Servicer for the benefit of
the Trustee on behalf of Certificateholders
and designated
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"Countrywide Home Loans Servicing LP in
trust for the registered holders of
CHL Mortgage Pass-Through Trust 2005-3,
Mortgage Pass-Through Certificates
Series 2005-3."
Certificate Balance: With respect to any Certificate (other than
any
Notional Amount Component) at any date, the
maximum dollar amount of principal
to which the Holder thereof is then
entitled under this Agreement, such amount
being equal to the Denomination of that
Certificate (A) plus any increase in
the Certificate Balance of such Certificate
pursuant to Section 4.02 due to
the receipt of Subsequent Recoveries, (B)
minus the sum of (i) all
distributions of principal previously made
with respect to that Certificate
and (ii) all Realized Losses allocated to
that Certificate and, in the case of
any Subordinated Certificates, all other
reductions in Certificate Balance
previously allocated to that Certificate
pursuant to Section 4.04 without
duplication, and (C) increased by the
amount of Net Deferred Interest for the
related Loan Group previously allocated to
the applicable Class pursuant to
Section 4.03.
Certificate Group: The
Group 1 Certificates or Group 2 Certificates,
as the context requires.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person
who is the beneficial owner of such
Book-Entry Certificate. For the purposes
of this Agreement, in order for a
Certificate Owner to enforce any of its
rights under this Agreement, it shall first
have to provide evidence of its
beneficial ownership interest in a
Certificate that is reasonably satisfactory
to the Trustee, the Depositor, and/or the
Master Servicer, as applicable.
Certificate Register:
The register maintained pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate
is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in
the name of the Depositor or any affiliate
of the Depositor shall be deemed
not to be Outstanding and the Percentage
Interest evidenced thereby shall not
be taken into account in determining
whether the requisite amount of
Percentage Interests necessary to effect
such consent has been obtained;
provided, however, that if any such Person
(including the Depositor) owns 100%
of the Percentage Interests evidenced by a
Class of Certificates, such
Certificates shall be deemed to be
Outstanding for purposes of any provision
of this Agreement (other than the second
sentence of Section 10.01) that
requires the consent of the Holders of
Certificates of a particular Class as a
condition to the taking of any action under
this Agreement. The Trustee is
entitled to rely conclusively on a
certification of the Depositor or any
affiliate of the Depositor in determining
which Certificates are registered in
the name of an affiliate of the
Depositor.
Class: All
Certificates bearing the same class designation as set forth
in the Preliminary Statement.
Class
Certificate Balance:
With respect to any Class and as to any
date of determination, the aggregate of the
Certificate Balances of all
Certificates of such Class as of such
date.
Class
Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in
clause (i) of the definition of Class
Optimal Interest Distribution Amount
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for such Class exceeds the amount of
interest actually distributed on such
Class on such Distribution Date pursuant to
such clause (i).
Class
Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing
Class or Component, the sum of (i) one
month's interest accrued during the related
Interest Accrual Period at the
Pass-Through Rate for such Class or
Component on the related Class Certificate
Balance, Component Principal Balance,
Notional Amount or Component Notional
Amount, as applicable, immediately prior to
such Distribution Date, subject to
reduction as provided in Section 4.02(d)
and (ii) any Class Unpaid Interest
Amounts for such Class or Component (other
than any Carryover Shortfall
Amounts), reduced by any Net Deferred
Interest for the related Distribution
Date added to their respective Class
Certificate Balances or Component
Principal Balances, as applicable, as
described in Section 4.03.
Class
Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated
Certificates, the quotient (expressed as a
percentage) of (a) the Class Certificate
Balance of such Class of Certificates
immediately prior to such Distribution Date
divided by (b) the aggregate of
the Class Certificate Balances of all
Classes of Certificates immediately
prior to such Distribution Date.
Class
Unpaid Interest Amounts: As to any Distribution Date and Class
of
interest-bearing Certificates or any
interest-bearing Component, the amount by
which the aggregate Class Interest
Shortfalls for such Class or Component on
prior Distribution Dates exceeds the amount
distributed on such Class or
Component on prior Distribution Dates
pursuant to clause (ii) of the
definition of Class Optimal Interest
Distribution Amount.
Closing
Date: February 28,
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
one-half of the aggregate Master Servicing
Fee 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: With respect to any Distribution Date and (i)
the Notional Amount Component of any Class
of Senior Class X Certificates, the
aggregate Class Certificate Balance of the
Senior LIBOR Certificates in the
same Senior Certificate Group immediately
prior to such Distribution Date, and
(ii) the Class M-X IO Component, the
aggregate Class
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Certificate Balance of the Subordinated
Certificates (other than the Class M-X
Certificates) immediately prior to such
Distribution Date.
Component
Principal Balance: As of any Distribution Date, each Principal
and Interest Component will have a
Component Principal Balance equal to (i)
the aggregate Net Deferred Interest
allocated to such Component prior to that
Distribution Date pursuant to Section 4.03
minus (ii) all amounts actually
distributed as principal of such Component
and all Realized Losses applied in
reduction of principal of such Component on
all prior Distribution Dates plus
(iii) any increase in the Component
Principal Balance of such Component
pursuant to Section 4.02 due to the receipt
of Subsequent Recoveries. As of
the Closing Date, the Component Principal
Balance of each Principal and
Interest Component will equal $0.
Component
Rate: 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, CWMBS, Inc.
Series 2005-3, facsimile no. (212)
815-3986), and which is the address to
which notices to and correspondence with
the Trustee should be directed.
Countrywide:
Countrywide Home Loans, Inc., a New York corporation and
its successors and assigns, in its capacity
as the seller of the Countrywide
Mortgage Loans to the Depositor.
Countrywide Mortgage Loans: The Mortgage Loans identified as
such on
the Mortgage Loan Schedule for which
Countrywide is the applicable Seller.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a
Texas
limited partnership and its successors and
assigns.
Cross-Over
Situation: For any Distribution Date and for each Loan Group
(after taking into account principal
distributions on such Distribution Date)
with respect to (1) the Class A and Class B
Lower Tier REMIC Interests, a
situation in which the Class A and Class B
Interests
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<PAGE>
corresponding to any Loan Group are in the
aggregate less than 1% of the
Subordinated Portion of the Loan Group to
which they correspond and (2) the
Class C and Class D Lower Tier REMIC
Interests, a situation in which the Class
C and Class D Interests corresponding to
any Loan Group are in the aggregate
less than 1% of the Adjusted Subordinated
Portion of the Loan Group to which
they correspond.
Cut-off
Date: As to any Mortgage Loan, the later of the date of
origination of that Mortgage Loan and
February 1, 2005.
Cut-off
Date Pool Principal Balance: $1,516,559,418.91.
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 any Mortgage Loan and Due Date, the
amount of interest accrued on such Mortgage
Loan at the applicable Mortgage
Rate that is greater than the Scheduled
Payment due on such Mortgage Loan on
that related Due Date and that is added to
the principal balance of such
Mortgage Loan in accordance with the terms
of the related Mortgage Note.
Deficient
Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the
Mortgaged Property in an amount less
than the then-outstanding indebtedness
under the Mortgage Loan, or any
reduction in the amount of principal to be
paid in connection with any
Scheduled Payment that results in a
permanent forgiveness of principal, which
valuation or reduction results from an
order of such court which is final and
non-appealable in a proceeding under the
Bankruptcy Code.
Definitive
Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in
lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay
Certificates: As specified in the Preliminary Statement.
Delay
Delivery Certification: As defined in Section 2.02(a).
Delay
Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not
delivered to Trustee on the Closing
Date. With respect to up to 50% of the
Mortgage Loans in each Loan Group, the
Depositor may deliver all or a portion of
each related Mortgage File to the
Trustee not later than thirty days after
the Closing Date. To the extent that
Countrywide Servicing shall be in
possession of any Mortgage Files with
respect to any Delay Delivery Mortgage
Loan, until delivery of such Mortgage
File to the Trustee as
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<PAGE>
provided in Section 2.01, Countrywide
Servicing shall hold such files as
Master Servicer hereunder, as agent and in
trust for the Trustee.
Deleted
Mortgage Loan: As
defined in Section 2.03(c).
Denomination: With respect to each Certificate, the amount set
forth on
the face of that Certificate as the
"Initial Certificate Balance of this
Certificate" or the "Initial Notional
Amount of this Certificate" or, if
neither of the foregoing, the Percentage
Interest appearing on the face
thereof.
Depositor:
CWMBS, Inc., a
Delaware corporation, or its successor in
interest.
Depository: The
initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE &
Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times
be a "clearing
corporation" as defined in Section
8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository
Participant: A broker, dealer, bank or other financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 22nd day of
each
month or, if such 22nd day is not a
Business Day, the next preceding Business
Day; provided, however, that if such 22nd
day or such Business Day, whichever
is applicable, is less than two Business
Days prior to the related
Distribution Date, the Determination Date
shall be the first Business Day that
is two Business Days preceding such
Distribution Date.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to
Section 3.05(d) in the name of the
Trustee for the benefit of the
Certificateholders and designated "The Bank of
New York in trust for registered holders of
CHL Mortgage Pass-Through Trust
2005-3 Mortgage Pass-Through Certificates,
Series 2005-3." Funds in the
Distribution Account shall be held in trust
for the Certificateholders for the
uses and purposes set forth in this
Agreement.
Distribution Account Deposit Date: As to any Distribution Date,
12:30
p.m. Pacific time on the Business Day
immediately preceding such Distribution
Date.
Distribution Date: The 25th day of each calendar month after the
initial
issuance of the Certificates, or if such
25th day is not a Business Day, the
next succeeding Business Day, commencing in
March 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 a Mortgage Loan, the period beginning on
the
second day of the calendar month preceding
the month in which such
Distribution Date occurs and ending on the
first day of the calendar month in
which such Distribution Date occurs.
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<PAGE>
Eligible
Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository
institution or trust company the
short-term unsecured debt obligations of
which (or, in the case of a
depository institution or trust company
that is the principal subsidiary of a
holding company, the debt obligations of
such holding company) have the
highest short-term ratings of Moody's or
Fitch and one of the two highest
short-term ratings of S&P, if S&P
is a Rating Agency at the time any amounts
are held on deposit therein, or (ii) an
account or accounts in a depository
institution or trust company in which such
accounts are insured by the FDIC
(to the limits established by the FDIC) and
the uninsured deposits in which
accounts are otherwise secured such that,
as evidenced by an Opinion of
Counsel delivered to the Trustee and to
each Rating Agency, the
Certificateholders have a claim with
respect to the funds in such account or a
perfected first priority security interest
against any collateral (which shall
be limited to Permitted Investments)
securing such funds that is superior to
claims of any other depositors or creditors
of the depository institution or
trust company in which such account is
maintained, or (iii) a trust account or
accounts maintained with (a) the trust
department of a federal or state
chartered depository institution or (b) a
trust company, acting in its
fiduciary capacity or (iv) any other
account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and
may include, if otherwise qualified
under this definition, accounts maintained
with the Trustee.
Eligible
Repurchase Month: As
defined in Section 3.11.
ERISA:
The Employee
Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that
meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow
Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a).
Event of
Default: As defined in
Section 7.01.
Excess
Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any
Liquidation Proceeds 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 and (b) the
Trustee Fee Rate.
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<PAGE>
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: With respect to each Mortgage Loan, the fixed
percentage
set forth in the related Mortgage Note that
is added to the Mortgage Index on
each Adjustment Date in accordance with the
terms of the related Mortgage Note
used to determine the Mortgage Rate for
such Mortgage Loan.
Group 1
Senior Certificates: As specified in the Preliminary Statement.
Group 2
Senior Certificates:
As specified in the Preliminary Statement.
Index:
With respect to any
Interest Accrual Period for the COFI
Certificates, if any, the then-applicable
index used by the Trustee pursuant
to Section 4.07 to determine the applicable
Pass-Through Rate for such
Interest Accrual Period for the COFI
Certificates.
Indirect
Participant: A broker, dealer, bank or other financial
institution or other Person that clears
through or maintains a custodial
relationship with a Depository
Participant.
Initial
Certification: As
defined in Section 2.02(a).
Initial
Component Principal 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.
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<PAGE>
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the
Mortgage Loans.
Interest
Accrual Period: With respect to each Class of Delay
Certificates, its corresponding REMIC
Regular Interest and any Distribution
Date, the calendar month prior to the month
in which such Distribution Date
occurs. With respect to any Class of
Non-Delay Certificates that is a Class of
Senior LIBOR Certificates, its
corresponding REMIC Regular Interest and any
Distribution Date, the period commencing on
the Distribution Date in the month
preceding the month in which such
Distribution Date occurs (or, with respect
to the first Distribution Date, commencing
on the Closing Date) and ending on
the day immediately preceding that
Distribution Date. With respect to any
Class of Non-Delay Certificates that is a
Class of Subordinated LIBOR
Certificates, its corresponding REMIC
Regular Interest and any Distribution
Date, the period commencing on the 25th day
of the month preceding the month
in which such Distribution Date occurs (or,
with respect to the first
Distribution Date, commencing on the
Closing Date) and ending on the 24th day
of the month in which such Distribution
Date occurs.
Interest
Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b)
any Interest Accrual Period for the
COFI Certificates for which the applicable
Index is LIBOR, the second Business
Day prior to the first day of such Interest
Accrual Period.
Latest
Possible Maturity Date: The Distribution Date following the
third
anniversary of the scheduled maturity date
of the Mortgage Loan having the
latest scheduled maturity date as of the
Cut-off Date.
Lender PMI
Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the Mortgagor) acquires the
Primary Insurance Policy and charges
the related Mortgagor an interest
premium.
LIBOR: The
London interbank offered rate for one-month United States
dollar deposits calculated in the manner
described in Section 4.08.
LIBOR
Certificates: As specified in the Preliminary Statement.
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.
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Loan
Group: Loan Group 1 or
Loan Group 2, as applicable.
Loan Group
1: All Mortgage Loans
identified as Loan Group 1 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group
2: All Mortgage Loans
identified as Loan Group 2 Mortgage
Loans on the Mortgage Loan Schedule.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to
any
date of determination, the fraction
(expressed as a percentage) the numerator
of which is the principal balance of the
related Mortgage Loan at that date of
determination and the denominator of which
is the Appraised Value of the
related Mortgaged Property.
Lost
Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not
been replaced.
Maintenance: With respect to any Cooperative Unit, the rent paid by
the
Mortgagor to the Cooperative Corporation
pursuant to the Proprietary Lease.
Majority
in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class
evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced
by all Certificates of such Class.
Master
REMIC: As described in
the Preliminary Statement.
Master
Servicer: Countrywide
Servicing LP, 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 of such Distribution Date
(prior to giving effect to any
Scheduled Payments due on such Mortgage
Loan on such Due Date), subject to
reduction as provided in Section 3.14.
Master
Servicing Fee Rate: With respect to each Mortgage Loan, 0.375%
per annum.
Maximum
Mortgage Rate: With respect to each Mortgage Loan, the
percentage set forth in the related
Mortgage Note as the maximum Mortgage Rate
thereunder.
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.
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MERS:
Mortgage Electronic
Registration Systems, Inc., a corporation
organized and existing under the laws of
the State of Delaware, or any
successor to Mortgage Electronic
Registration Systems, Inc.
MERS
Mortgage Loan: Any
Mortgage Loan registered with MERS on the
MERS(R) System.
MERS(R)
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN:
The mortgage
identification number for any MERS Mortgage Loan.
Minimum
Mortgage Rate: With respect to each Mortgage Loan, the greater
of (a) the Gross Margin set forth in the
related Mortgage Note and (b) the
percentage set forth in the related
Mortgage Note as the minimum Mortgage Rate
thereunder.
MOM Loan:
Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of
such Mortgage Loan and its successors
and assigns.
Monthly
Statement: The
statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's:
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
Index: As to each Mortgage Loan, the index from time to time in
effect for adjustment of the Mortgage Rate
as set forth as such on the related
Mortgage Note.
Mortgage
Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect
the addition of Substitute Mortgage
Loans and the deletion of Deleted Mortgage
Loans pursuant to the provisions of
this Agreement) transferred to the Trustee
as part of the Trust Fund and from
time to time subject to this Agreement,
attached to this Agreement as Schedule
I, setting forth the following information
with respect to each Mortgage Loan
by Loan Group:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the
Mortgaged
Property, including the zip code;
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<PAGE>
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is
either
(a) a detached or attached single family dwelling, (b) a
dwelling
in a de minimis PUD, (c) a condominium unit or PUD (other than
a
de minimis PUD), (d) a two- to four-unit residential property
or
(e) a Cooperative Unit;
(xi) the Mortgage Rate in effect on the Cut-off Date;
(xii) the Master Servicing Fee Rate both before and after the
initial Adjustment Date for each Mortgage Loan;
(xiii) a code indicating whether the Mortgage Loan is a Lender
PMI
Mortgage Loan and, in the case of any Lender PMI Mortgage Loan,
a
percentage
representing the amount of the related interest premium
charged to the borrower;
(xiv) the purpose for the Mortgage Loan;
(xv) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xvi) a code indicating whether the Mortgage Loan is a
Countrywide
Mortgage Loan or a Park Granada Mortgage Loan;
(xvii) the direct servicer of such Mortgage Loan as of the
Cut-off
Date;
(xviii) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan, and
(xix) with respect to each Mortgage Loan, the Gross Margin, the
Mortgage Index, the Maximum Mortgage Rate, the Minimum Mortgage
Rate, the first Adjustment Date, the Payment Adjustment Date
and
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 and for each Loan
Group.
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<PAGE>
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 Loan Group and
Distribution
Date, an amount equal to the excess, if
any, of the Deferred Interest that
accrued on the Mortgage Loans in that Loan
Group for the related Due Period
over the sum of the amounts described in
clauses (a) through (f) of the
definition of Principal Amount for those
Mortgage Loans received during the
related Due Period and Prepayment
Period.
Net
Payments: As to any Distribution Date and Loan Group, the sum of
the
Net Principal Payment Amount and the Net
Principal Prepayment Amount for such
Distribution Date and Loan Group.
Net
Prepayment Interest Shortfalls: As to any Distribution Date and
Loan
Group, the amount by which the aggregate of
Prepayment Interest Shortfalls for
such Loan Group exceeds an amount equal to
the sum of (a) the Compensating
Interest for such Loan Group for such
Distribution Date and (b) the excess, if
any, of the Compensating Interest with
respect to the Mortgage Loans of the
other Loan Group for such Distribution Date
over Prepayment Interest
Shortfalls experienced by the Mortgage
Loans in such other Loan Group during
such Prepayment Period.
Net
Principal Payment Amount: As to any Distribution Date and Loan
Group, the amount equal to the excess, if
any, of the Principal Payment Amount
for that Loan Group over the excess, if
any, of (i) the Deferred Interest for
that Loan Group for the related Due Period
over (ii) the Principal Prepayment
Amount for that Loan Group and Distribution
Date.
Net
Principal Prepayment Amount: As to any Distribution Date and
Loan
Group, the amount equal to the excess, if
any, of the (i) Principal Prepayment
Amount for that Loan Group
16
<PAGE>
over (ii) the aggregate amount of Deferred
Interest accrued on the Mortgage
Loans in that Loan Group for the related
Due Period.
Net Rate
Cap: As to any Distribution Date and (i) any Class of Senior
LIBOR Certificates, the Weighted Average
Adjusted Net Mortgage Rate of the
Mortgage Loans in the related Loan Group
for that Distribution Date, adjusted
for the related Interest Accrual Period and
(ii) any Class of Subordinated
Certificates, the Subordinate Weighted
Average Rate for that Distribution
Date.
Non-Delay
Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made by the Master Servicer
that, in the good faith judgment of
the Master Servicer, will not be ultimately
recoverable by the Master Servicer
from the related Mortgagor, related
Liquidation Proceeds or otherwise.
Notice of
Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final
distribution on any of the Certificates
shall be made only upon presentation and
surrender thereof.
Notional
Amount: Not
applicable.
Notional
Amount Certificates:
As specified in the Preliminary
Statement.
Offered
Certificates: As
specified in the Preliminary Statement.
Officer's
Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the
Vice Chairman of the Board, the
President, a Managing Director, a Vice
President (however denominated), an
Assistant Vice President, the Treasurer,
the Secretary, or one of the
Assistant Treasurers or Assistant
Secretaries of the Depositor, (ii) in the
case of the Master Servicer, signed by the
President, an Executive Vice
President, a Vice President, an Assistant
Vice President, the Treasurer, or
one of the Assistant Treasurers or
Assistant Secretaries of Countrywide GP,
Inc., its general partner or (iii) if
provided for in this Agreement, signed
by a Servicing Officer, as the case may be,
and delivered to the Depositor and
the Trustee, as the case may be, as
required by this Agreement.
Opinion of
Counsel: A written opinion of counsel, who may be counsel for
the Depositor, any Seller or the Master
Servicer, including, in-house counsel,
reasonably acceptable to the Trustee;
provided, however, that with respect to
the interpretation or application of the
REMIC Provisions, such counsel must
(i) in fact be independent of the
Depositor, any Seller and the Master
Servicer, (ii) not have any direct
financial interest in the Depositor, any
Seller or the Master Servicer or in any
affiliate of either, and (iii) not be
connected with the Depositor, any Seller or
the Master Servicer as an officer,
employee, promoter, underwriter, trustee,
partner, director or person
performing similar functions.
Optional
Termination: The termination of the trust created under this
Agreement in connection with the purchase
of the Mortgage Loans pursuant to
Section 9.01.
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<PAGE>
Optional
Termination Date: The Distribution Date on which the Pool
Stated Principal Balance is less than or
equal to ten percent (10%) of the
Cut-off Date Pool Principal Balance.
Original
Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated
Certificates, the corresponding
percentage described below, as of the
Closing Date:
Class M-1..... 8.05%
Class M-2..... 6.80%
Class M-3..... 5.65%
Class M-4..... 5.00%
Class M-5..... 3.90%
Class M-6..... 3.25%
Class M-7..... 2.70%
Class B-1..... 2.15%
Class B-2..... 2.05%
Class B-3..... 1.90%
Class B-4..... 1.10%
Class B-5..... 0.40%
Original
Mortgage Loan: The
mortgage loan refinanced in connection
with the origination of a Refinancing
Mortgage Loan.
Original
Subordinate Principal Balance: On or prior to a Senior
Termination Date, the Subordinated
Percentage for a Loan Group of the
aggregate Stated Principal Balances of the
Mortgage Loans in such Loan Group,
in each case as of the Cut-off Date or, if
such date is after a Senior
Termination Date, the aggregate of the
Class Certificate Balances of the
Subordinated Certificates as of the Closing
Date.
OTS:
The Office of Thrift
Supervision.
Outside
Reference Date: As to
any Interest Accrual Period for the COFI
Certificates, the close of business on the
tenth day thereof.
Outstanding: With
respect to the Certificates as of any date of
determination, all Certificates theretofore
executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a
Stated Principal Balance greater than zero,
which was not the subject of a
Principal Prepayment in Full prior to 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.
Overcollateralized Group: As defined in Section 4.05.
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<PAGE>
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.
Pass-Through Margin: With respect to the Interest Accrual Period
for any
Distribution Date and each Class of LIBOR
Certificates, the per annum rate
indicated in the following table:
Pass-Through Pass-Through
Class
Margin (1)
Margin (2)
Class 1-A-1...... 0.310%
0.620%
Class 1-A-2...... 0.300%
0.600%
Class 1-A-3...... 0.240%
0.480%
Class 1-A-4...... 0.380%
0.760%
Class 1-A-5...... 0.350%
0.700%
Class 2-A-1...... 0.290%
0.580%
Class 2-A-2...... 0.320%
0.640%
Class M-1........ 0.460%
0.690%
Class M-2........ 0.500%
0.750%
Class M-3........ 0.520%
0.780%
Class M-4........ 0.640%
0.960%
Class M-5........ 0.750%
1.125%
Class M-6........ 1.050%
1.575%
Class M-7........ 1.450%
2.175%
Class
B-1........ 1.550%
2.325%
Class B-2........ 2.000%
3.000%
Class B-3........ 2.000%
3.000%
Class B-4........ 2.000%
3.000%
Class B-5........ 2.000%
3.000%
------------------
(1) For the
Interest Accrual Period related to any Distribution
Date occurring on or prior to the Optional Termination Date.
(2) For each
other Interest Accrual Period.
Pass-Through Rate: For the Interest Accrual Period related to
each
Distribution Date and each Class of
Certificates or Component, the per annum
rate set forth or calculated in the manner
described in the Preliminary
Statement for such Class or Component.
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
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<PAGE>
the face thereof or equal to the percentage
obtained by dividing the
Denomination of such Certificate by the
aggregate of the Denominations of all
Certificates of the same Class.
Permitted
Investments: At any
time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and
credit
of the United States;
(ii) general obligations of or obligations guaranteed by any
state
of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or such
lower
rating as will not result in the downgrading or withdrawal of
the
ratings then assigned to the Certificates by each Rating
Agency;
(iii) commercial or finance company paper which is then
receiving
the highest commercial or finance company paper rating of each
Rating Agency, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or
bankers'
acceptances issued by any depository institution or trust
company
incorporated under the laws of the United States or of any
state
thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial
paper and/or long term unsecured debt obligations of such
depository institution or trust company (or in the case of the
principal depository institution in a holding company system,
the
commercial paper or long-term unsecured debt obligations of
such
holding company, but only if 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
20
<PAGE>
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.
Planned
Balance: With respect to any group of Planned Principal Classes
or Components in the aggregate and any
Distribution Date appearing in Schedule
V hereto, the Aggregate Planned Balance for
such group and Distribution Date.
With respect to any other Planned Principal
Class or Component and any
Distribution Date appearing in Schedule V
hereto, the applicable amount
appearing opposite such Distribution Date
for such Class or Component.
Planned
Principal Classes: As
specified in the Preliminary Statement.
Planned
Principal Components:
As specified in the Preliminary
Statement.
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<PAGE>
Pool
Stated Principal Balance: The aggregate of the Stated
Principal
Balances of the Outstanding Mortgage
Loans.
Prepayment
Interest Shortfall: As to any Distribution Date, any Mortgage
Loan and any 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
February 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 16th 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 February 1, 2005)
through the 15th day of the calendar
month in which the Distribution Date
occurs.
Primary
Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy
therefor with respect to any Mortgage
Loan.
Prime
Rate: The prime commercial lending rate of The Bank of New
York,
as publicly announced to be in effect from
time to time. The Prime Rate shall
be adjusted automatically, without notice,
on the effective date of any change
in such prime commercial lending rate. The
Prime Rate is not necessarily The
Bank of New York's lowest rate of
interest.
Principal
Amount: As to any Distribution Date and any Loan Group, the
sum of (a) the principal portion of each
Scheduled Payment (without giving
effect to any reductions thereof caused by
any Debt Service Reductions or
Deficient Valuations) due on each Mortgage
Loan (other than a Liquidated
Mortgage Loan) in the related Loan Group on
the related Due Date to the extent
received or advanced, (b) the principal
portion of the Purchase Price of each
Mortgage Loan in the related Loan Group
that was repurchased by the applicable
Seller or purchased by the Master Servicer
pursuant to this Agreement as of
such Distribution Date, (c) the
Substitution Adjustment Amount in connection
with any Deleted Mortgage Loan in such Loan
Group received with respect to
such Distribution Date, (d) any Insurance
Proceeds or net Liquidation Proceeds
allocable to recoveries of principal of
Mortgage Loans in the related Loan
Group that are not yet Liquidated Mortgage
Loans received during the calendar
month preceding the month of such
Distribution Date, (e) with respect to each
Mortgage Loan in a Loan Group that became a
Liquidated Mortgage Loan during
the calendar month preceding the month of
such Distribution Date, the amount
of the net Liquidation Proceeds allocable
to principal received during the
calendar month preceding the month of such
Distribution Date with respect to
such Mortgage Loan, (f) all Principal
Prepayments for such Loan Group received
during the related Prepayment Period and
any Subsequent Recoveries on the
Mortgage Loans in the related Loan Group
received during the calendar month
preceding the month of such Distribution
Date, and (g) the principal portion
of any Transfer Payments Received for such
Loan Group, minus the principal
portion of any Transfer Payments Made for
such Loan Group and Distribution
Date in accordance with Section 4.05.
Principal
and Interest Component: As specified in the
Preliminary
Statement.
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<PAGE>
Principal
Payment Amount: As to any Distribution Date and any Loan
Group, the sum of the amounts described in
clauses (a) through (d) of the
definition of "Principal Amount" for such
Distribution Date and Loan Group.
Principal
Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance
of its scheduled Due Date and is not
accompanied by an amount representing
scheduled interest due on any date or
dates in any month or months subsequent to
the month of prepayment. Partial
Principal Prepayments shall be applied by
the Master Servicer in accordance
with the terms of the related Mortgage
Note.
Principal
Prepayment Amount: As to any Distribution Date and any Loan
Group, the sum of the amounts described in
clauses (e) and (f) of the
definition of "Principal Amount" for such
Distribution Date and Loan Group.
Principal
Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance
of a Mortgage Loan.
Principal
Relocation Payment: A payment from any Loan Group to REMIC
Regular Interests other than those of their
Corresponding Loan Group as
provided in the Preliminary Statement.
Principal Relocation Payments shall be
made of principal allocations comprising
the Principal Remittance Amount from
a Loan Group and shall also consist of a
proportionate allocation of Realized
Losses from the Mortgage Loans of a Loan
Group.
Private
Certificate: As
specified in the Preliminary Statement.
Pro Rata
Share: As to any Distribution Date, the Subordinated Principal
Distribution Amount and any Class of
Subordinated Certificates, the portion of
the Subordinated Principal Distribution
Amount allocable to such Class, equal
to the product of the Subordinated
Principal Distribution Amount on such
Distribution Date and a fraction, the
numerator of which is the related Class
Certificate Balance thereof and the
denominator of which is the aggregate of
the Class Certificate Balances of the
Subordinated Certificates.
Pro Rata
Subordinated Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior
Percentage for such Distribution Date.
Proprietary Lease: With respect to any Cooperative Unit, a lease
or
occupancy agreement between a Cooperative
Corporation and a holder of related
Coop Shares.
Prospectus: The prospectus dated February 9, 2005 generally
relating to
mortgage pass-through certificates to be
sold by the Depositor.
Prospectus
Supplement: The prospectus supplement dated February 24, 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
23
<PAGE>
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 that has become the
subject of a Deficient Valuation, if
the principal amount due under the related
Mortgage Note has been reduced, the
difference between the principal balance of
the Mortgage Loan outstanding
immediately prior to such Deficient
Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient
Valuation. With respect to each
Mortgage Loan that 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 those Subsequent
Recoveries.
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<PAGE>
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, (i) in the case of
the LIBOR Certificates represented by
Book-Entry Certificates, the Business
Day immediately preceding such Distribution
Date and (ii) in the case of LIBOR
Certificates represented by Definitive
Certificates and in the case of all
other Certificates, the close of business
on the last Business Day of the
month preceding the month in which such
Distribution Date occurs.
Reference
Bank: As defined in
Section 4.07.
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection
with the refinancing of an existing
mortgage loan.
Regular
Certificates: As
specified in the Preliminary Statement.
Relief
Act: The
Servicemembers Civil Relief Act or similar state laws.
Relief Act
Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended calendar month as a result of
the application of the Relief Act, the
amount, if any, by which (i) interest
collectible on such Mortgage Loan for the
most recently ended calendar month
is less than (ii) interest accrued thereon
for such month pursuant to the
Mortgage Note.
REMIC: A
"real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC
Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other
official announcement or
interpretation relating to REMICs and the
REMIC Provisions issued after the
Closing Date.
REMIC
Provisions: Provisions of the federal income tax law relating
to
real estate mortgage investment conduits,
which appear at Sections 860A
through 860G of Subchapter M of Chapter 1
of the Code, and related provisions,
and regulations promulgated thereunder, as
the foregoing may be in effect from
time to time as well as provisions of
applicable state laws.
REO
Property: A Mortgaged Property acquired by the Trust Fund
through
foreclosure or deed-in-lieu of foreclosure
in connection with a defaulted
Mortgage Loan.
Request
for Release: The Request for Release submitted by 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.
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Responsible Officer: When used with respect to the Trustee, any
Vice
President, any Assistant Vice President,
the Secretary, any Assistant
Secretary, any Trust Officer or any other
officer of the Trustee customarily
performing functions similar to those
performed by any of the above designated
officers and also to whom, with respect to
a particular matter, such matter is
referred because of such officer's
knowledge of and familiarity with the
particular subject.
Restricted
Classes: As defined in
Section 4.02(e).
Scheduled
Balances: Not
applicable.
Scheduled
Classes: As specified
in the Preliminary Statement.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal
and/or interest on such Mortgage Loan
which, unless otherwise specified 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 or Park
Granada, as applicable.
Senior
Certificate Group: As
specified in the Preliminary Statement.
Senior
Certificates: As
specified in the Preliminary Statement.
Senior
Class X Certificates:
As specified in the Preliminary Statement.
Senior
Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of
Subordinated Certificates has been
reduced to zero.
Senior
LIBOR Certificates: As
specified in the Preliminary Statement.
Senior
Percentage: As to any Senior Certificate Group and Distribution
Date, the percentage equivalent of a
fraction the numerator of which is the
aggregate of the Class Certificate Balances
of each Class of Senior
Certificates of such Senior Certificate
Group (other than any related Notional
Amount Component) immediately prior to such
Distribution Date and the
denominator of which is the aggregate of
the Stated Principal Balances of each
Mortgage Loan in the related Loan Group as
of the Due Date in the month
preceding the month of that Distribution
Date (after giving effect to
Principal Prepayments received on the
Mortgage Loans in the Prepayment Period
related to that preceding Due Date);
provided, however, that on any
Distribution Date after a Senior
Termination Date, the Senior Percentage for
the Senior Certificates of the remaining
Senior Certificate Group is the
percentage equivalent of a fraction, the
numerator of which is the aggregate
of the Class Certificate Balances of each
such Class of Senior Certificates
(other than any related Notional Amount
Component) immediately prior to such
Distribution Date and the denominator of
which is the aggregate of the Class
Certificate Balances of all Classes of
Certificates immediately prior to such
Distribution Date. In no event will the
Senior Percentage be greater than
100%.
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<PAGE>
Senior
Prepayment Percentage: As to a Senior Certificate Group and any
Distribution Date during the ten years
beginning on the first Distribution
Date, 100%. The related Senior Prepayment
Percentage for any Distribution Date
occurring on or after the tenth anniversary
of the first Distribution Date
will, except as provided in this Agreement,
be as follows: for any
Distribution Date in the first year
thereafter, the related Senior Percentage
plus 70% of the related Subordinated
Percentage for such Distribution Date;
for any Distribution Date in the second
year thereafter, the related Senior
Percentage plus 60% of the related
Subordinated Percentage for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
related Senior Percentage plus 40% of the
related Subordinated Percentage for
such Distribution Date; for any
Distribution Date in the fourth year
thereafter, the related Senior Percentage
plus 20% of the related Subordinated
Percentage for such Distribution Date; and
for any Distribution Date
thereafter, the related Senior Percentage
for such Distribution Date (unless
on any Distribution Date the related Senior
Percentage exceeds the initial
Senior Percentage of such Senior
Certificate Group as of the Closing Date, in
which case the related Senior Prepayment
Percentage for such Distribution Date
will once again equal 100%).
Notwithstanding the foregoing, (i) no decrease in
the Senior Prepayment Percentage will occur
unless both of the Senior Step
Down Conditions are satisfied with respect
to each Loan Group and (ii) if the
Two Times Test is satisfied on a
Distribution Date, (a) on or before the
Distribution Date in February 2008, the
Senior Prepayment Percentage for each
Senior Certificate Group will equal the
related Senior Percentage plus 50% of
the Pro Rata Subordinated Percentage and
(b) after the Distribution Date in
February 2008, the Senior Prepayment
Percentage for each Senior Certificate
Group will equal the related Senior
Percentage.
Senior
Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i)
the related Senior Percentage of the
Net Principal Payment Amount with respect
to the related Loan Group for such
Distribution Date, (ii) the related Senior
Prepayment Percentage of the Net
Principal Prepayment Amount with respect to
the related Loan Group for such
Distribution Date and (iii) the principal
portion of any Transfer Payments
Received for that Loan Group and
Distribution Date; provided, however that on
any Distribution Date after a Senior
Termination Date, the Senior Principal
Distribution Amount for the remaining
Senior Certificate Group will be
calculated pursuant to the above formula
based upon all the Mortgage Loans, as
opposed to the Mortgage Loans in the
related Loan Group.
Senior
Step Down Conditions: As of the first Distribution Date as to
which any decrease in the Senior Prepayment
Percentage applies, (i) the
outstanding principal balance of all
Mortgage Loans in a Loan Group delinquent
60 days or more (including Mortgage Loans
in foreclosure, REO Property and
Mortgage Loans, the Mortgagors of which are
in bankruptcy) (averaged over the
preceding six month period), as a
percentage of (a) if such date is on or
prior to a Senior Termination Date, the
Subordinated Percentage for such Loan
Group of the aggregate Stated Principal
Balance of the Mortgage Loans in that
Loan Group, or (b) if such date is after a
Senior Termination Date, the
aggregate Class Certificate Balance of the
Subordinated Certificates for such
Distribution Date, does not equal or exceed
50%, and (ii) cumulative Realized
Losses on all the Mortgage Loans in that
Loan Group do not exceed: (a)
commencing with the Distribution Date on
the tenth anniversary of the first
Distribution Date, 30% of the Original
Subordinate Principal Balance, (b)
commencing with the Distribution Date on
the eleventh anniversary of the first
Distribution Date, 35% of the Original
Subordinate Principal Balance, (c)
commencing with the Distribution Date on
the twelfth anniversary of the first
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Distribution Date, 40% of the Original
Subordinate Principal Balance, (d)
commencing with the Distribution Date on
the thirteenth anniversary of the
first Distribution Date, 45% of the
Original Subordinate Principal Balance and
(e) commencing with the Distribution Date
on the fourteenth anniversary of the
first Distribution Date, 50% of the
Original Subordinate Principal Balance.
Senior
Termination Date: For each Senior Certificate Group, the
Distribution Date on which the aggregate
Class Certificate Balance of the
related Classes of Senior Certificates have
been reduced to zero.
Servicing
Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the
performance by the Master Servicer
of its servicing obligations, including,
but not limited to, the cost of (i)
the preservation, restoration and
protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master
Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings,
including foreclosures, (iii) the
management and liquidation of any REO
Property and (iv) compliance with the
obligations under Section 3.09.
Servicing
Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and
servicing of the Mortgage Loans whose
name and facsimile signature appear on a
list of servicing officers furnished
to the Trustee by the Master Servicer on
the Closing Date pursuant to this
Agreement, as such list may from time to
time be amended.
S&P:
Standard & Poor's Ratings Services, a division of The
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 Ratings
Services, 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.
Startup
Day: The Closing
Date.
Stated
Principal Balance: As to any Mortgage Loan and date, the unpaid
principal balance of such Mortgage Loan as
of the Due Date immediately
preceding such 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, (ii)
Liquidation Proceeds allocable to
principal (other than with respect to any
Liquidated Mortgage Loan) received
in the prior calendar month and Principal
Prepayments received through the
last day of the related Prepayment Period,
in each case, with respect to that
Mortgage Loan and (iii) any Deferred
Interest added to the principal balance
of that Mortgage Loan pursuant to the terms
of the related Mortgage Note on or
prior to that Due Date.
Streamlined Documentation Mortgage Loan: Any Mortgage Loan
originated
pursuant to the 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.
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<PAGE>
Subordinate Weighted Average Rate: For each Interest Accrual
Period
related to each Distribution Date, a per
annum rate equal to the sum of the
following for each Loan Group: the product
of (x) the Weighted Average
Adjusted Net Mortgage Rate of the Mortgage
Loans in that Loan Group, adjusted
as necessary to reflect the accrual of
interest on the basis of a 360-day year
consisting of twelve 30-day months and (y)
a fraction, the numerator of which
is the related Subordinated Portion
immediately prior to that Distribution
Date, and the denominator of which is the
aggregate Class Certificate Balance
of the Subordinated Certificates
immediately prior to that Distribution Date.
Subordinated Adjusted Cap Rate: For any Distribution Date, the
weighted
average of each of the Adjusted Cap Rates
(as adjusted to reflect the accrual
of interest on the basis of a 360-day year
consisting of twelve 30-day
months), weighted on the basis of the
Subordinated Portion of the Mortgage
Loans in the related Loan Group.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordinated Percentage: As to any Distribution Date on or prior to
a
Senior Termination Date and Loan Group,
100% minus the Senior Percentage for
the Senior Certificate Group relating to
such Loan Group for such Distribution
Date. As to any Distribution Date after a
Senior Termination Date, 100% minus
the Senior Percentage for such Distribution
Date.
Subordinated Portion: For any Distribution Date and any Loan Group,
an
amount equal to the aggregate Stated
Principal Balance of the Mortgage Loans
in that Loan Group as of the end of the
Prepayment Period related to the
immediately preceding Distribution Date,
minus the sum of the aggregate Class
Certificate Balance of the related Classes
of Senior Certificates immediately
prior to such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the related Senior
Prepayment Percentage for such
Distribution Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount
equal to the excess of (A) the
sum, not less than zero, of the sum of (i)
the related Subordinated Percentage
of the Net Principal Payment Amount for
that Loan Group and that Distribution
Date and (ii) the related Subordinated
Prepayment Percentage for that Loan
Group of the Net Principal Prepayment
Amount for that Loan Group and that
Distribution Date over (B) the principal
portion of any Transfer Payments Made
for such Loan Group; provided, however,
that on any Distribution Date after a
Senior Termination Date, the Subordinated
Principal Distribution Amount will
not be calculated by Loan Group but will
equal the amount calculated pursuant
to the formula set forth above based on the
related Subordinated Percentage
and Subordinated Prepayment Percentage for
the Subordinated Certificates for
such Distribution Date with respect to all
of the Mortgage Loans as opposed to
the Mortgage Loans only in the related Loan
Group.
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.
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<PAGE>
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) 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: As defined in Section 2.03.
Targeted
Balance: With respect to any group of Targeted Principal
Classes or Components in the aggregate and
any Distribution Date appearing in
Schedule V hereto, the Aggregate Targeted
Balance for such group and
Distribution Date. With respect to any
other Targeted Principal Class or
Component and any Distribution Date
appearing in Schedule V hereto, the
applicable amount appearing opposite such
Distribution Date for such Class or
Component.
Targeted
Principal Classes: As
specified in the Preliminary Statement.
Tax
Matters Person: The
person designated as "tax matters person" in
the manner provided under Treasury
regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)1T.
Initially, the Tax
Matters Person
shall be the Trustee.
Tax
Matters Person Certificate: The Class A-R Certificate with
a
Denomination of $0.01.
Transfer: Any direct or indirect transfer or
sale of any Ownership
Interest in a Residual Certificate.
Transfer
Payment: Either or
both of a Transfer Payment Made or a
Transfer Payment Received.
Transfer
Payment Made: As
defined in Section 4.05.
Transfer
Payment Received: As
defined in Section 4.05.
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<PAGE>
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 and the Carryover Shortfall
Reserve Fund, and all amounts deposited
therein pursuant to the applicable
provisions of this Agreement; (iii)
property that secured a Mortgage Loan and
has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise;
and (iv) all proceeds of the conversion,
voluntary or involuntary, of any of
the foregoing.
Trustee:
The Bank of New York and its successors and, if a successor
trustee is appointed under this Agreement,
such successor.
Trustee
Advance Rate: With respect to any Advance made by the Trustee
pursuant to Section 4.01(b), a per annum
rate of interest determined as of the
date of such Advance equal to the Prime
Rate in effect on such date plus
5.00%.
Trustee
Fee: As to any Distribution Date, an amount equal to
one-twelfth
of the Trustee Fee Rate multiplied by the
Pool Stated Principal Balance with
respect to such Distribution Date.
Trustee
Fee Rate: With respect to each Mortgage Loan, the per annum
rate
agreed upon in writing on or prior to the
Closing Date by the Trustee and the
Depositor, which is 0.009% per annum.
Two Times
Test: As to any Distribution Date, if (i) the Aggregate
Subordinated Percentage is at least 200% of
the Aggregate Subordinated
Percentage as of the Closing Date, (ii) the
outstanding aggregate Stated
Principal Balance of all Mortgage Loans
delinquent 60 days or more (averaged
over the preceding six month period), as a
percentage of the aggregate Class
Certificate Balance of the Subordinated
Certificates, does not equal or exceed
50% and (iii) the cumulative Realized
Losses on all the Mortgage Loans do not
exceed (x) with respect to any Distribution
Date on or before February 2008,
20% of the aggregate Class Certificate
Balance of the Subordinated
Certificates on the Closing Date or (y)
with respect to any Distribution Date
after February 2008, 30% of the aggregate
Class Certificate Balance of the
Subordinated Certificates on the Closing
Date.
Undercollateralized Group: As defined in Section 4.05.
Underwriter: 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.
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
Class X Certificates, if any (such Voting
Rights to be allocated among the
holders of Certificates of each such Class
in accordance with their respective
Percentage Interests), and (b) the
remaining Voting Rights (or 100% of the
Voting Rights if there is no Class of Class
X Certificates) shall be allocated
among Holders of the remaining Classes of
Certificates in proportion to the
Certificate Balances of their respective
Certificates on such date.
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<PAGE>
Weighted
Average Adjusted Net Mortgage Rate: As to any Distribution Date
and Loan Group, the average of the Adjusted
Net Mortgage Rate of each Mortgage
Loan in that Loan Group, weighted on the
basis of its Stated Principal Balance
as of the end of the Prepayment Period
related to the immediately preceding
Distribution Date.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION
2.01. Conveyance of
Mortgage Loans
(a) Each
Seller, concurrently with the execution and delivery of this
Agreement, hereby sells, transfers,
assigns, sets over and otherwise conveys
to the Depositor, without recourse, all its
respective right, title and
interest in and to the related Mortgage
Loans, including all interest and
principal received or receivable by such
Seller, on or with respect to the
applicable Mortgage Loans after the Cut-off
Date and all interest and
principal payments on the related Mortgage
Loans received prior to the Cut-off
Date in respect of installments of interest
and principal due thereafter, but
not including payments of principal and
interest due and payable on such
Mortgage Loans on or before the Cut-off
Date. On or prior to the Closing Date,
Countrywide shall deliver to the Depositor
or, at the Depositor's direction,
to the Trustee or other designee of the
Depositor, the Mortgage File for each
Mortgage Loan listed in the Mortgage Loan
Schedule (except that, in the case
of the Delay Delivery Mortgage Loans (which
may include Countrywide Mortgage
Loans and Park Granada Mortgage Loans),
such delivery may take place within
thirty (30) days following the Closing
Date). Such delivery of the Mortgage
Files shall be made against payment by the
Depositor of the purchase price,
previously agreed to by the Sellers and
Depositor, for the Mortgage Loans.
With respect to any Mortgage Loan that does
not have a first payment date on
or before the Due Date in the month of the
first Distribution Date,
Countrywide shall deposit into the
Distribution Account on or before the
Distribution Account Deposit Date relating
to the first Distribution Date, an
amount equal to one month's interest at the
related Adjusted Mortgage Rate on
the Cut-off Date Principal Balance of such
Mortgage Loan.
(b)
Immediately upon the conveyance of the Mortgage Loans referred to
in
clause (a), the Depositor sells, transfers,
assigns, sets over and otherwise
conveys to the Trustee for the benefit of
the Certificateholders, without
recourse, all the right, title and interest
of the Depositor in and to the
Trust Fund together with the Depositor's
right to require each Seller to cure
any breach of a representation or warranty
made in this Agreement by such
Seller or to repurchase or substitute for
any affected Mortgage Loan in
accordance herewith.
(c) In
connection with the transfer and assignment set forth in clause
(b) above, the Depositor has delivered or
caused to be delivered to the
Trustee (or, in the case of the Delay
Delivery Mortgage Loans, will deliver or
cause to be delivered to the Trustee within
thirty (30) days following the
Closing Date) for the benefit of the
Certificateholders the following
documents or instruments with respect to
each Mortgage Loan so assigned:
(i) (A) the original Mortgage Note endorsed by manual or
facsimile signature in blank in the following form: "Pay to the
order of ____________ without recourse," with all intervening
endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such
endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note); or
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<PAGE>
(B) with respect to any Lost Mortgage Note, a lost note
affidavit stating that the original Mortgage Note was lost or
destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or
a
copy of such Mortgage certified by Countrywide as being a true
and
complete copy of the Mortgage (or, in the case of a Mortgage
for
which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a true copy of the Mortgage
certified
as such by the applicable notary) and in the case of each MERS
Mortgage Loan, the original Mortgage, 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
(which
may be included in a blanket assignment or assignments),
together
with, except as provided below, all interim recorded
assignments
of such mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect
the
assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if
the
related
Mortgage has not been returned from the applicable public
recording office, such assignment of the Mortgage may exclude
the
information to be provided by the recording office; provided,
further, that such assignment of Mortgage need not be delivered
in
the case of a Mortgage for which the related Mortgaged Property
is
located in the Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(v) except as provided below, the original or duplicate
original lender's title policy or a printout of the electronic
equivalent and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) The Coop Shares, together with a stock power in blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
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<PAGE>
(E) The executed UCC-1 financing statement with evidence
of recording thereon which have been filed in all places
required to perfect the applicable Seller's interest in the
Coop Shares and the Proprietary Lease; and
(F) The executed UCC-3 financing statements or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to
the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
In
addition, in connection with the assignment of any MERS
Mortgage
Loan, each Seller agrees that it will
cause, at the Trustee's expense, the
MERS(R) System to indicate that the
Mortgage Loans sold by such Seller to the
Depositor have been assigned by that Seller
to the Trustee in accordance with
this Agreement for the benefit of the
Certificateholders by including (or
deleting, in the case of Mortgage Loans
which are repurchased in accordance
with this Agreement) in such computer files
the information required by the
MERS(R) System to identify the series of
the Certificates issued in connection
with such Mortgage Loans. Each Seller
further agrees that it will not, and
will not permit the Master Servicer to, and
the Master Servicer agrees that it
will not, alter the information referenced
in this paragraph with respect to
any Mortgage Loan sold by such Seller to
the Depositor during the term of this
Agreement unless and until such Mortgage
Loan is repurchased in accordance
with the terms of this Agreement.
In the
event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Depositor cannot
deliver (a) the original recorded
Mortgage, (b) all interim recorded
assignments or (c) the lender's title
policy (together with all riders thereto)
satisfying the requirements of
clause (ii), (iii) or (v) above,
respectively, concurrently with the execution
and delivery 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
such interim assignment, as the case may
be, with evidence of recording
indicated thereon upon receipt thereof from
the public recording office, or a
copy thereof, certified, if appropriate, by
the relevant recording office, but
in no event shall any such delivery of the
original Mortgage and each such
interim assignment or a copy thereof,
certified, if appropriate, by the
relevant recording office, be made later
than one year following the Closing
Date, or, in the case of clause (v) above,
no later than 120 days following
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
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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: "CWMBS Series
2005-3, 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) 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) 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) 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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(d)
Neither the Depositor nor the Trust will acquire or hold any
Mortgage Loan that would violate the
representations made by Countrywide set
forth in clauses (48) and (49) of Schedule
III-A hereto.
SECTION
2.02. Acceptance by
Trustee of the Mortgage Loans.
(a) The
Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form annexed
hereto as Exhibit F (an "Initial
Certification") and declares that it holds
and will hold such documents and
the other documents delivered to it
constituting the Mortgage Files, and that
it holds or will hold such other assets as
are included in the Trust Fund, in
trust for the exclusive use and benefit of
all present and future
Certificateholders. The Trustee
acknowledges that it will maintain possession
of the Mortgage Notes in the State of
California, unless otherwise permitted
by the Rating Agencies.
The
Trustee agrees to execute and deliver on the Closing Date to
the
Depositor, the Master Servicer and
Countrywide (on its own behalf and on
behalf of Park Granada) an Initial
Certification in the form annexed to this
Agreement as Exhibit F. Based on its review
and examination, and only as to
the documents identified in such Initial
Certification, the Trustee
acknowledges that such documents appear
regular on their face and relate to
the Mortgage Loans. The Trustee shall be
under no duty or obligation to
inspect, review or examine said documents,
instruments, certificates or other
papers to determine that the same are
genuine, enforceable or appropriate for
the represented purpose or that they have
actually been recorded in the real
estate records or that they are other than
what they purport to be on their
face.
On or
about the thirtieth (30th) day after the Closing Date, the
Trustee
shall deliver to the Depositor, the Master
Servicer and Countrywide (on its
own behalf and on behalf of Park Granada) 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) 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) 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) 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
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Countrywide (on its own behalf and on
behalf of Park Granada) 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) 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) 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) and shall
execute and deliver at Countrywide's (on
its own behalf and on behalf of Park
Granada) 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), 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) 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) or its designee and shall cause
such Mortgage to be removed from
registration on the MERS(R) System in
accordance with MERS' rules and
regulations or (ii) cause MERS to designate
on the MERS(R) System Countrywide
(on its own behalf and on behalf of Park
Granada) or its designee as the
beneficial holder of such Mortgage
Loan.
(b)
[Reserved].
(c)
[Reserved].
(d) The
Trustee shall retain possession and custody of each Mortgage
File in accordance with and subject to the
terms and conditions set forth in
this Agreement. The Master Servicer shall
promptly deliver to the Trustee,
upon the execution or receipt thereof, the
originals of such other documents
or instruments constituting the Mortgage
File as come into the possession of
the Master Servicer from time to time.
(e) It is
understood and agreed that the respective obligations of each
Seller to substitute for or to purchase any
Mortgage Loan sold to the
Depositor by it which does not meet the
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requirements of Section 2.01 above shall
constitute the sole remedy respecting
such defect available to the Trustee, the
Depositor and any Certificateholder
against that Seller.
SECTION 2.03. Representations,
Warranties and Covenants of
the Sellers and Master Servicer.
(a)
Countrywide hereby makes the representations and warranties set
forth in (i) Schedule II-A and Schedule
II-B hereto, and by this reference
incorporated herein, to the Depositor, the
Master Servicer and the Trustee, as
of the Closing Date, (ii) Schedule III-A
hereto, and by this reference
incorporated herein, to the Depositor, the
Master Servicer and the Trustee, as
of the Closing Date, or if so specified
therein, as of the Cut-off Date with
respect to the Mortgage Loans, and (iii)
Schedule III-B hereto, and by this
reference incorporated herein, to the
Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off
Date with respect to the Mortgage Loans
that are Countrywide Mortgage Loans.
Park Granada hereby makes the
representations and warranties set forth in (i)
Schedule II-B hereto, and by this reference
incorporated herein, to the
Depositor, the Master Servicer and the
Trustee, as of the Closing Date and
(ii) Schedule III-C hereto, and by this
reference incorporated herein, to the
Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if
so specified therein, as of the Cut-off
Date with respect to the Mortgage
Loans that are Park Granada Mortgage
Loans.
(b) The
Master Servicer hereby makes the representations and warranties
set forth in Schedule IV hereto, and by
this reference incorporated herein, to
the Depositor and the Trustee, as of the
Closing Date.
(c) Upon
discovery by any of the parties hereto of a breach of a
representation or warranty with respect to
a Mortgage Loan made pursuant to
Section 2.03(a) that materially and
adversely affects the interests of the
Certificateholders in that Mortgage Loan,
the party discovering such breach
shall give prompt notice thereof to the
other parties. Each Seller hereby
covenants that within 90 days of the
earlier of its discovery or its receipt
of written notice from any party of a
breach of any representation or warranty
with respect to a Mortgage Loan sold by it
pursuant to Section 2.03(a) that
materially and adversely affects the
interests of the Certificateholders in
that Mortgage Loan, it shall cure such
breach in all material respects, and if
such breach is not so cured, shall, (i) if
such 90-day period expires prior to
the second anniversary of the Closing Date,
remove such Mortgage Loan (a
"Deleted Mortgage Loan") from the Trust
Fund and substitute in its place a
Substitute Mortgage Loan, in the manner and
subject to the conditions set
forth in this Section; or (ii) repurchase
the affected Mortgage Loan or
Mortgage Loans from the Trustee at the
Purchase Price in the manner set forth
below; provided, however, that any such
substitution pursuant to (i) above
shall not be effected prior to the delivery
to the Trustee of the Opinion of
Counsel required by Section 2.05, if any,
and any such substitution pursuant
to (i) above shall not be effected prior to
the additional delivery to the
Trustee of a Request for Release
substantially in the form of Exhibit N and
the Mortgage File for any such Substitute
Mortgage Loan. The Seller
repurchasing a Mortgage Loan pursuant to
this Section 2.03(c) shall promptly
reimburse the Master Servicer and the
Trustee for any expenses reasonably
incurred by the Master Servicer or the
Trustee in respect of enforcing the
remedies for such breach. With respect to
the representations and warranties
described in this Section which are made to
the best of a Seller's knowledge,
if it is discovered by either the
Depositor, a Seller or the Trustee that the
substance of such representation and
warranty is
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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. Any breach of a representation
set forth in clauses (47), (53), (54),
(55), (56) or (57) of Schedule III-A
with respect to any Mortgage Loan in the
Mortgage Pool or clause (44) of
Schedule III-A (but only to the extent such
representation relates to Freddie
Mac's dollar amount limits for conforming
one- to four-family mortgage loans)
with respect to a Mortgage Loan in Loan
Group 1 shall be deemed to materially
and adversely affect the
Certificateholders.
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) 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), 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) on or before the Distribution
Account Deposit Date for the
Distribution Date in the month
succeeding
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the calendar month during which the related
Mortgage Loan became required to
be purchased or replaced hereunder.
In the
event that a Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited
in the Certificate Account pursuant
to Section 3.05 on or before the
Distribution Account Deposit Date for the
Distribution Date in the month following
the month during which that Seller
became obligated hereunder to repurchase or
replace such Mortgage Loan and
upon such deposit of the Purchase Price,
the delivery of the Opinion of
Counsel required by Section 2.05 and
receipt of a Request for Release in the
form of Exhibit N hereto, the Trustee shall
release the related Mortgage File
held for the benefit of the
Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person's
direction such instruments of
transfer or assignment prepared by such
Person, in each case without recourse,
as shall be necessary to transfer title
from the Trustee. It is understood and
agreed that the obligation under this
Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as
to which a breach has occurred and
is continuing shall constitute the sole
remedy against such Persons respecting
such breach available to
Certificateholders, the Depositor or the Trustee on
their behalf.
The
representations and warranties made pursuant to this Section
2.03
shall survive delivery of the respective
Mortgage Files to the Trustee for the
benefit of the Certificateholders.
SECTION
2.04. Representations
and Warranties of the Depositor as to
the Mortgage Loans.
The
Depositor hereby represents and warrants to the Trustee with
respect
to each Mortgage Loan as of the date of
this Agreement or such other date set
forth in this Agreement that as of the
Closing Date, and following the
transfer of the Mortgage Loans to it by
each Seller, the Depositor had good
title to the Mortgage Loans and the
Mortgage Notes were subject to no offsets,
defenses or counterclaims.
The
Depositor hereby assigns, transfers and conveys to the Trustee
all
of its rights with respect to the Mortgage
Loans including, without
limitation, the representations and
warranties of each Seller made pursuant to
Section 2.03(a), together with all rights
of the Depositor to require a Seller
to cure any breach thereof or to repurchase
or substitute for any affected
Mortgage Loan in accordance with this
Agreement.
It is
understood and agreed that the representations and warranties
set
forth in this Section 2.04 shall survive
delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or
the Trustee of a breach of any of
the foregoing representations and
warranties set forth in this Section 2.04
(referred to herein as a "breach"), which
breach materially and adversely
affects the interest of the
Certificateholders, the party discovering such
breach shall give prompt written notice to
the others and to each Rating
Agency.
SECTION
2.05. Delivery of
Opinion of Counsel in Connection with
Substitutions.
(a)
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or
Section 2.03 shall be made more than
90 days after the Closing Date unless
Countrywide delivers to the Trustee an
Opinion of Counsel, which Opinion of
Counsel shall not be at the expense of
either the Trustee or the Trust Fund,
addressed to the Trustee, to the effect
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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. In connection
therewith, the Trustee shall require
Countrywide (on its own behalf and on
behalf of Park Granada) at its option, to
either (i) substitute, if the
conditions in Section 2.03(c) with respect
to substitutions are satisfied, a
Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase
the affected Mortgage Loan within 90 days
of such discovery in the same manner
as it would a Mortgage Loan for a breach of
representation or warranty made
pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the
Mortgage Loan to be released pursuant to
this Section in the same manner, and
on the same terms and conditions, as it
would a Mortgage Loan repurchased for
breach of a representation or warranty
contained in Section 2.03.
SECTION
2.06. Execution and
Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the
Trust
Fund and, concurrently with such transfer
and assignment, has executed and
delivered to or upon the order of the
Depositor, the Certificates in
authorized denominations evidencing
directly or indirectly the entire
ownership of the Trust Fund. The Trustee
agrees to hold the Trust Fund and
exercise the rights referred to above for
the benefit of all present and
future Holders of the Certificates and to
perform the duties set forth in this
Agreement to the best of its ability, to
the end that the interests of the
Holders of the Certificates may be
adequately and effectively protected.
SECTION
2.07. REMIC
Matters.
The
Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income
tax purposes of all interests
created hereby. The "Startup Day" for
purposes of the REMIC Provisions shall
be the Closing Date. The "tax matters
person" with respect to each REMIC
hereunder shall be the Trustee and the
Trustee shall hold the Tax Matters
Person Certificate. Each REMIC's fiscal
year shall be the calendar year.
SECTION
2.08. Covenants of the
Master Servicer.
The Master
Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the
Master Servicer shall comply in the performance of its
obligations under this Agreement with all
reasonable rules and requirements of
the insurer under each Required Insurance
Policy; and
(b) no
written information, certificate of an officer, statement
furnished in writing or written report
delivered to the Depositor, any
affiliate of the Depositor or the Trustee
and prepared by the Master Servicer
pursuant to this Agreement will contain any
untrue statement of a material
fact or omit to state a material fact
necessary to make such information,
certificate, statement or report not
misleading.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION
3.01. Master Servicer
to Service Mortgage Loans.
For and on
behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans
in accordance with the terms of this
Agreement and customary and usual standards
of practice of prudent mortgage
loan servicers. In connection with such
servicing and administration, the
Master Servicer shall have full power and
authority, acting alone and/or
through Subservicers as provided in Section
3.02, subject to the terms of this
Agreement (i) to execute and deliver, on
behalf of the Certificateholders and
the Trustee, customary consents or waivers
and other instruments and
documents, (ii) to consent to transfers of
any Mortgaged Property and
assumptions of the Mortgage Notes and
related Mortgages (but only in the
manner provided in this Agreement), (iii)
to collect any Insurance Proceeds
and other Liquidation Proceeds (which for
the purpose of this Section 3.01
includes any Subsequent Recoveries), and
(iv) to effectuate foreclosure or
other conversion of the ownership of the
Mortgaged Property securing any
Mortgage Loan; provided that the Master
Servicer shall not take any action
that is inconsistent with or prejudices the
interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or
the rights and interests of the
Depositor, the Trustee and the
Certificateholders under this Agreement. The
Master Servicer shall represent and protect
the interests of the Trust Fund in
the same manner as it protects its own
interests in mortgage loans in its own
portfolio in any claim, proceeding or
litigation regarding a Mortgage Loan,
and shall not make or permit any
modification, waiver or amendment of any
Mortgage Loan which would cause any REMIC
created under this Agreement to fail
to qualify as a REMIC or result in the
imposition of any tax under Section
860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the
foregoing, the Master Servicer, in its own
name or in the name of the
Depositor and the Trustee, is hereby
authorized and empowered by the Depositor
and the Trustee, when the Master Servicer
believes it appropriate in its
reasonable judgment, to execute and
deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of
them, any and all instruments of
satisfaction or cancellation, or of partial
or full release or discharge and
all other comparable instruments, with
respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held
for the benefit of the
Certificateholders. The Master Servicer
shall prepare and deliver to the
Depositor and/or the Trustee such documents
requiring execution and delivery
by either or both of them as are necessary
or appropriate to enable the Master
Servicer to service and administer the
Mortgage Loans to the extent that the
Master Servicer is not permitted to execute
and deliver such documents
pursuant to the preceding sentence. Upon
receipt of such documents, the
Depositor and/or the Trustee shall execute
such documents and deliver them to
the Master Servicer. The Master Servicer
further is authorized and empowered
by the Trustee, on behalf of the
Certificateholders and the Trustee, in its
own name or in the name of the Subservicer,
when the Master Servicer or the
Subservicer, as the case may be, believes
it appropriate in its best judgment
to register any Mortgage Loan on the
MERS(R) System, or cause the removal from
the registration of any Mortgage Loan on
the MERS(R) System, to execute and
deliver, on behalf of the Trustee and the
Certificateholders or any of them,
any and all instruments of assignment and
other comparable instruments with
respect to such assignment or re-recording
of a Mortgage in the name of MERS,
solely as nominee for the Trustee and its
successors and assigns.
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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.
Commencing
with the Closing Date, the Master Servicer will fully furnish
for each Mortgage Loan, in accordance with
the Fair Credit Reporting Act and
its implementing regulations, accurate and
complete information (i.e.,
favorable and unfavorable) on its borrower
credit files to Equifax, Experian,
and Trans Union Credit Information Company
(three of the credit repositories),
on a monthly basis.
SECTION
3.02. Subservicing;
Enforcement of the Obligations of
Servicers.
(a) The
Master Servicer may arrange for the subservicing of any
Mortgage
Loan by a Subservicer pursuant to a
subservicing agreement; provided, however,
that such subservicing arrangement and the
terms of the related subservicing
agreement must provide for the servicing of
such Mortgage Loans in a manner
consistent with the servicing arrangements
contemplated under this Agreement.
Unless the context otherwise requires,
references in this Agreement to actions
taken or to be taken by the Master Servicer
in servicing the Mortgage Loans
include actions taken or to be taken by a
Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of
any subservicing agreement, any of
the provisions of this Agreement relating
to agreements or arrangements
between the Master Servicer and a
Subservicer or reference to actions taken
through a Subservicer or otherwise, the
Master Servicer shall remain obligated
and liable to the Depositor, the Trustee
and the Certificateholders for the
servicing and administration of the
Mortgage Loans in accordance with the
provisions of this Agreement without
diminution of such obligation or
liability by virtue of such subservicing
agreements or arrangements or by
virtue of indemnification from the
Subservicer and to the same extent and
under the same terms and conditions as if
the Master Servicer alone were
servicing and administering the Mortgage
Loans. All actions of each
Subservicer performed pursuant to the
related subservicing agreement shall be
performed as an agent of the Master
Servicer with the same force and effect as
if performed directly by the Master
Servicer.
(b) For
purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections,
recoveries or payments with respect to the
Mortgage Loans that are received by a
Subservicer regardless of whether such
payments are remitted by the Subservicer to
the Master Servicer.
SECTION
3.03. Rights of the
Depositor and the Trustee in Respect of
the Master Servicer.
The
Depositor may, but is not obligated to, enforce the obligations
of
the Master Servicer 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
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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. Neither the Trustee nor the
Depositor shall have any responsibility or
liability for any action or failure
to act by the Master Servicer nor shall the
Trustee or the Depositor be
obligated to supervise the performance of
the Master Servicer under this
Agreement or otherwise.
SECTION
3.04. Trustee to Act
as Master Servicer.
In the
event that the Master Servicer shall for any reason no longer
be
the Master Servicer under this Agreement
(including by reason of an Event of
Default), 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.
SECTION
3.05. Collection of
Mortgage Loan Payments; Certificate
Account; Distribution Account; Carryover Shortfall
Reserve Fund.
(a) The
Master Servicer shall make reasonable efforts in accordance
with
the customary and usual standards of
practice of prudent mortgage servicers to
collect all payments called for under the
terms and provisions of the Mortgage
Loans to the extent such procedures shall
be consistent with this Agreement
and the terms and provisions of any related
Required Insurance Policy.
Consistent with the foregoing, the Master
Servicer may in its discretion (i)
waive any late payment charge or any
prepayment charge or penalty interest in
connection with the prepayment of a
Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note
for a period not greater than 180
days; provided, however, that the Master
Servicer cannot extend the maturity
of any such Mortgage Loan past the date on
which the final payment is due on
the latest maturing Mortgage Loan as of the
Cut-off Date. In the event of any
such arrangement, the Master Servicer shall
make Advances on the related
Mortgage Loan in accordance with the
provisions of Section 4.01 during the
scheduled period in accordance with the
amortization schedule of such Mortgage
Loan without modification thereof by reason
of such arrangements. The Master
Servicer shall not be required to institute
or join in litigation with
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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 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 pursuant to Section 3.05(e) 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;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to
Section
4.01;
and
(viii) any other amounts required to be deposited under this
Agreement.
In
addition, with respect to any Mortgage Loan that is subject to
a
buydown agreement, on each Due Date for
such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor,
the Master Servicer shall cause
funds to be deposited into the Certificate
Account in an amount required to
cause an amount of interest to be paid with
respect to such Mortgage Loan
equal to the amount of interest that has
accrued on such Mortgage Loan from
the preceding Due Date at the Mortgage Rate
net of the related Master
Servicing Fee.
The
foregoing requirements for remittance by the Master Servicer
shall
be exclusive, it being understood and
agreed that, without limiting the
generality of the foregoing, payments
in
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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)
[Reserved].
(d) The
Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution
Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution
Account and retain in the Distribution
Account the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee
pursuant to Section 3.08(a)(ix);
(ii) any amount deposited by the Master Servicer pursuant to
Section
3.05(e) in connection with any losses on Permitted Investments
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
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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 Shortfall 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 LIBOR Certificates, the
Carryover Shortfall Reserve Fund and shall
deposit therein an amount equal to
the sum of $5,000 and the Carryover
Shortfall Reserve Fund Additional Deposit
Amount upon receipt from or on behalf of
the Depositor of such amount. All
funds on deposit in the Carryover Shortfall
Reserve Fund shall (x) 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, and (y) remain
uninvested.
In
addition, on each Distribution Date, the Trustee shall deposit
all
amounts distributable to each Class of
Class X Certificates on such
Distribution Date into the Carryover
Shortfall Reserve Fund. The Trustee shall
make withdrawals from the Carryover
Shortfall Reserve Fund to make
distributions pursuant to Section 4.09
exclusively (other than as expressly
provided for in Section 3.08). Amounts on
deposit in the Carryover Shortfall
Reserve Fund shall remain uninvested.
SECTION
3.06. Collection of
Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the
extent required by the related Mortgage Note and not
violative of current law, the Master
Servicer shall establish and maintain one
or more accounts (each, an "Escrow
Account") and deposit and retain therein
all collections from the Mortgagors (or
advances by the Master Servicer) for
the payment of taxes, assessments, hazard
insurance premiums or comparable
items for the account of the Mortgagors.
Nothing in this Agreement shall
require the Master Servicer to compel a
Mortgagor to establish an Escrow
Account in violation of applicable law.
(b)
Withdrawals of amounts so collected from the Escrow Accounts may
be
made only to effect timely payment of
taxes, assessments, hazard insurance
premiums, condominium or PUD association
dues, or comparable items, to
reimburse the Master Servicer out of
related collections for any payments made
pursuant to Sections 3.01 (with respect to
taxes and assessments and insurance
premiums) and 3.09 (with respect to hazard
insurance), to refund to
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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.
SECTION
3.07. Access to
Certain Documentation and Information
Regarding the Mortgage Loans.
The Master
Servicer shall afford each Seller, the Depositor and the
Trustee reasonable access to all records
and documentation regarding the
Mortgage Loans and all accounts, insurance
information and other matters
relating to this Agreement, such access
being afforded without charge, but
only upon reasonable request and during
normal business hours at the office
designated by the Master Servicer.
Upon
reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder and/or
Certificate Owner which is a savings
and loan association, bank or insurance
company certain reports and reasonable
access to information and documentation
regarding the Mortgage Loans
sufficient to permit such Certificateholder
and/or Certificate Owner to comply
with applicable regulations of the OTS or
other regulatory authorities with
respect to investment in the Certificates;
provided that the Master Servicer
shall be entitled to be reimbursed by each
such Certificateholder and/or
Certificate Owner for actual expenses
incurred by the Master Servicer in
providing such reports and access.
SECTION
3.08. Permitted
Withdrawals from the Certificate Account;
the Distribution Account and the Carryover Shortfall
Reserve Fund.
(a) The
Master Servicer may from time to time make withdrawals from the
Certificate Account for the following
purposes:
(i) to pay to the Master Servicer (to the extent not previously
retained
by the Master Servicer) the servicing compensation to which it
is
entitled pursuant to Section 3.14 and to pay to the Master
Servicer,
as
additional servicing compensation, earnings on or investment
income
with
respect to funds in or credited to the Certificate Account;
