CITIGROUP MORTGAGE LOAN TRUST INC.
Depositor
CITIMORTGAGE, INC.
Master Servicer and Trust Administrator
CITIBANK, N.A.
Paying Agent, Certificate Registrar and Authenticating Agent
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
_________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
_________________________________________
Asset-Backed Pass-Through Certificates
Series 2005-WF1
TABLE OF CONTENTS
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SECTION PAGE
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CITIGROUP MORTGAGE LOAN TRUST INC.
Depositor
CITIMORTGAGE, INC.
Master Servicer and Trust Administrator
CITIBANK, N.A.
Paying Agent, Certificate Registrar and Authenticating Agent
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
_________________________________________
Asset-Backed Pass-Through Certificates
Series 2005-WF1
PRELIMINARY STATEMENT:
REMIC I
REMIC II
ARTICLE I DEFINITIONS
SECTION 1.01 Defined Terms.
SECTION 1.02 Allocation of Certain Interest Shortfalls.
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
SECTION 2.02 Acceptance of the Trust Fund by the Trustee.
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by the Seller or
the Depositor.
SECTION 2.04 Reserved.
SECTION 2.05 Representations, Warranties and Covenants of the Master
Servicer.
SECTION 2.06 Issuance of the Certificates.
SECTION 2.07 Conveyance of the REMIC Regular Interests; Acceptance of the
Trust REMICs by the Trustee.
ARTICLE III ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01 Master Servicer to Act as Master Servicer.
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SECTION 3.02 Sub-Servicing Agreements Between the Master Servicer and
Sub-Servicers.
SECTION 3.03 Successor Sub-Servicers.
SECTION 3.04 Liability of the Master Servicer.
SECTION 3.05 No Contractual Relationship Between Sub-Servicers and Trustee,
Trust Administrator or Certificateholders.
SECTION 3.06 Assumption or Termination of Sub-Servicing Agreements by
Trustee.
SECTION 3.07 Collection of Certain Mortgage Loan Payments.
SECTION 3.08 Sub-Servicing Accounts.
SECTION 3.09 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts.
SECTION 3.10 Collection Account and Distribution Account.
SECTION 3.11 Withdrawals from the Collection Account and Distribution
Account.
SECTION 3.12 Investment of Funds in the Collection Account and the
Distribution Account.
SECTION 3.13 Maintenance of the Primary Mortgage Insurance Policies;
Collections Thereunder.
SECTION 3.14 Maintenance of Hazard Insurance and Errors and Omissions and
Fidelity Coverage.
SECTION 3.15 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
SECTION 3.16 Realization Upon Defaulted Mortgage Loans.
SECTION 3.17 Trustee to Cooperate; Release of Mortgage Files.
SECTION 3.18 Servicing Compensation.
SECTION 3.19 Reports to the Trust Administrator; Collection Account
Statements.
SECTION 3.20 Statement as to Compliance.
SECTION 3.21 Independent Public Accountants' Servicing Report.
SECTION 3.22 Access to Certain Documentation.
SECTION 3.23 Title, Management and Disposition of REO Property.
SECTION 3.24 Obligations of the Master Servicer in Respect of Prepayment
Interest Shortfalls.
SECTION 3.25 Obligations of the Master Servicer in Respect of Monthly
Payments.
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
SECTION 4.02 Statements to Certificateholders.
SECTION 4.03 Remittance Reports; P&I Advances.
SECTION 4.04 Allocation of Extraordinary Trust Fund Expenses and Realized
Losses.
SECTION 4.05 Compliance with Withholding Requirements.
SECTION 4.06 Net WAC Rate Carryover Reserve Account.
SECTION 4.07 Commission Reporting.
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ARTICLE V THE CERTIFICATES
SECTION 5.01 The Certificates.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
SECTION 5.04 Persons Deemed Owners.
SECTION 5.05 Certain Available Information.
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01 Liability of the Depositor and the Master Servicer.
SECTION 6.02 Merger or Consolidation of the Depositor or the Master Servicer.
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicer
and Others.
SECTION 6.04 Limitation on Resignation of the Master Servicer.
SECTION 6.05 Rights of the Depositor in Respect of the Master Servicer.
ARTICLE VII DEFAULT
SECTION 7.01 Master Servicer Events of Default.
SECTION 7.02 Trustee to Act; Appointment of Successor.
SECTION 7.03 Notification to Certificateholders.
SECTION 7.04 Waiver of Master Servicer Events of Default.
ARTICLE VIII CONCERNING THE TRUSTEE, THE TRUST ADMINISTRATOR, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR AND THE AUTHENTICATING AGENT
SECTION 8.01 Duties of Trustee, Trust Administrator and Others.
SECTION 8.02 Certain Matters Affecting the Trustee, the Trust Administrator
and Others.
SECTION 8.03 Trustee, Trust Administrator and Others not Liable for
Certificates or Mortgage Loans.
SECTION 8.04 Trustee, Trust Administrator and Others May Own Certificates.
SECTION 8.05 Trustee's, Trust Administrator's, Paying Agent's,
Authenticating Agent's, Certificate Registrar's and Custodians'
Fees and Expenses.
SECTION 8.06 Eligibility Requirements for Trustee and Trust Administrator.
SECTION 8.07 Resignation and Removal of the Trustee and the Trust
Administrator.
SECTION 8.08 Successor Trustee or Trust Administrator.
SECTION 8.09 Merger or Consolidation of Trustee or Trust Administrator.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
SECTION 8.11 [intentionally omitted]
SECTION 8.12 Appointment of Office or Agency.
SECTION 8.13 Representations and Warranties.
SECTION 8.14 Appointment and Removal of Paying Agent, Authenticating Agent
and Certificate Registrar.
SECTION 8.15 No Trustee Liability for Actions or Inactions of Custodians.
ARTICLE IX TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of the Mortgage
Loans.
SECTION 9.02 Additional Termination Requirements.
ARTICLE X REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
SECTION 10.02 Prohibited Transactions and Activities.
SECTION 10.03 Master Servicer and Trust Administrator Indemnification.
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
SECTION 11.02 Recordation of Agreement; Counterparts.
SECTION 11.03 Limitation on Rights of Certificateholders.
SECTION 11.04 Governing Law.
SECTION 11.05 Notices.
SECTION 11.06 Severability of Provisions.
SECTION 11.07 Notice to Rating Agencies.
SECTION 11.08 Article and Section References.
SECTION 11.09 Grant of Security Interest.
EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 Form of Mezzanine Certificate
Exhibit A-3 Form of Class CE Certificate
Exhibit A-4 Form of Class P Certificate
Exhibit A-5 Form of Class R Certificate
Exhibit B [Reserved]
Exhibit C [Reserved]
Exhibit D Form of Mortgage Loan Purchase Agreement
Exhibit E Request for Release
Exhibit F-1 Form of Transferor Representation Letter and Form of Transferee
Representation Letter in Connection with Transfer of the Private
Certificates Pursuant to Rule 144A Under the 1933 Act
Exhibit F-2 Form of Transfer Affidavit and Agreement and Form of Transferor
Affidavit in Connection with Transfer of Residual Certificates
Exhibit G Form of Certification with respect to ERISA and the Code
Exhibit H Form of Master Servicer Certification
Exhibit I Form of Cap Contract
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Schedule 1 Mortgage Loan Schedule
Schedule 2 Prepayment Charge Schedule
v
This Pooling and Servicing Agreement, is dated and effective
as of February 1, 2005, among CITIGROUP MORTGAGE LOAN TRUST INC., as Depositor,
CITIMORTGAGE, INC., as Master Servicer and Trust Administrator, CITIBANK, N.A.
as Paying Agent, Certificate Registrar and Authenticating Agent and U.S. BANK
NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple classes, which in the aggregate will evidence the entire
beneficial ownership interest in each REMIC (as defined herein) created
hereunder. The Trust Fund will consist of a segregated pool of assets comprised
of the Mortgage Loans and certain other related assets subject to this
Agreement.
REMIC I
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As provided herein, the Trust Administrator will elect to
treat the segregated pool of assets consisting of the Mortgage Loans and certain
other related assets (other than any Servicer Prepayment Charge Payment Amounts,
the Net WAC Rate Carryover Reserve Account and the Cap Contract) subject to this
Agreement as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC I." The Class R-I Interest will be the
sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein). The following table irrevocably sets forth the
designation, the REMIC I Remittance Rate, the initial Uncertificated Balance
and, for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii),
the "latest possible maturity date" for each of the REMIC I Regular Interests
(as defined herein). None of the REMIC I Regular Interests will be certificated.
REMIC I Initial Latest
Remittance Uncertificated Possible
Designation Rate Balance Maturity Date(1)
----------- ---------- -------------- ----------------
I-LTAA (2) $406,944,777.08 November 0000
X-XXX0 (2) $1,600,000.00 November 0000
X-XXX0 (2) $910,000.00 November 0000
X-XXX0 (2) $389,000.00 November 0000
X-XXX0 (2) $593,499.00 November 0000
X-XXX0 (2) $415,000.00 November 2034
I-LTM1 (2) $91,356.00 November 2034
I-LTM2 (2) $80,974.00 November 2034
I-LTM3 (2) $51,907.00 November 2034
I-LTM4 (2) $20,761.72 November 2034
I-LTZZ (2) $4,152,497.73 November 0000
X-XXX (2) $100.00 November 2034
_______________
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance Rate"
herein.
REMIC II
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As provided herein, the Trust Administrator will elect to
treat the segregated pool of assets consisting of the REMIC I Regular Interests
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC II." The Class R-II Interest will evidence the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate, the initial aggregate Certificate Principal
Balance and, for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the indicated
Classes of Certificates.
` ` Initial Aggregate `
` ` Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
--------------------------------------------------------------------------------
Class A-1 Variable(2) $160,000,000.00 November 2034
Class A-2 4.49% per annum (3) $91,000,000.00 November 2034
Class A-3 5.00% per annum (3) $38,900,000.00 November 2034
Class A-4 5.53% per annum (3) $59,349,900.00 November 2034
Class A-5 5.01% per annum (3) $41,500,000.00 November 2034
Class M-1 5.33% per annum (3) $9,135,600.00 November 2034
Class M-2 5.53% per annum (3) $8,097,400.00 November 2034
Class M-3 5.85% per annum (3) $5,190,700.00 November 2034
Class M-4 5.85% per annum (3) $2,076,172.00 November 2034
Class CE Variable(4) $0.53 November 2034
Class P N/A(5) $100.00 November 2034
_______________
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Mortgage Loans with the latest maturity date has been designated as the
"latest possible maturity date" for each Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The pass-through rate on this Class of Certificates is subject to rate cap
and, in the case of the Class A-4 and the Mezzanine Certificates, subject
to increase in accordance with the definition of "Pass-Through Rate"
herein.
(4) The Class CE Certificates will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class CE Certificates
outstanding from time to time which shall equal the aggregate
Uncertificated Balance of the REMIC I Regular Interests (other than REMIC I
Regular Interest I-LTP). The Class CE Certificates will not accrue interest
on their Certificate Principal Balance.
(5) The Class P Certificates will not accrue interest.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the Trust Administrator, the Paying Agent,
the Authenticating Agent, the Certificate Registrar and the Trustee agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including, without
limitation, in the Preliminary Statement hereto, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations
described herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
"Administration Fee": With respect to each Mortgage Loan and
for any calendar month, an amount equal to one month's interest (or in the event
of any payment of interest which accompanies a Principal Prepayment in full made
by the Mortgagor during such calendar month, interest for the number of days
covered by such payment of interest) at the applicable Administration Fee Rate
on the same principal amount on which interest on such Mortgage Loan accrues for
such calendar month.
"Administration Fee Rate": 0.0025% per annum.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Allocated Realized Loss Amount": With respect to any
Distribution Date and any Class of Mezzanine Certificates, (x) the sum of (i)
any Realized Losses allocated to such Class of Certificates on such Distribution
Date and (ii) the amount of any Allocated Realized Loss Amount for such Class of
Certificates remaining unpaid from the previous Distribution Date minus (y) the
amount of the increase in the Certificate Principal Balance of such Class due to
the receipt of Subsequent Recoveries as provided in Section 4.01.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (a) the
aggregate of the Monthly Payments due during the Due Period relating to such
Distribution Date and received by the Master Servicer (or by a Sub-Servicer on
its behalf) on or prior to the related Determination Date, after deduction of
the Servicing Fee, the Administration Fee and the Credit Risk Oversight Advisor
Fee for such
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Distribution Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, proceeds from repurchases of and substitutions for Mortgage Loans,
Subsequent Recoveries and other unscheduled payments of principal and interest
in respect of the Mortgage Loans or REO Properties received by the Master
Servicer during the related Prepayment Period (exclusive of any prepayment
charges, penalties or premiums), (c) the aggregate of any amounts on deposit in
the Distribution Account representing Compensating Interest Payments paid by the
Master Servicer in respect of Prepayment Interest Shortfalls relating to
Principal Prepayments that occurred during the related Prepayment Period, (d)
the aggregate of any P&I Advances made by the Master Servicer for such
Distribution Date and (e) Prepayment Charges received and Servicer Prepayment
Charge Payment Amounts paid in respect of Mortgage Loans with respect to which a
Principal Prepayment occurred during the related Prepayment Period and any
amounts received from the Seller as contemplated in Section 2.03(b) in respect
of any Principal Prepayment that occurred during or prior to the related
Prepayment Period over (ii) the sum of (a) amounts reimbursable to the Master
Servicer, the Trustee, the Trust Administrator, the Paying Agent, the
Certificate Registrar, the Authenticating Agent or a Custodian pursuant to
Section 6.03 or Section 8.05 or otherwise payable in respect of Extraordinary
Trust Fund Expenses, (b) amounts in respect of the items set forth in clauses
(i)(a) through (i)(d) above deposited in the Collection Account or the
Distribution Account in respect of the items set forth in clauses (i)(a) through
(i)(d) above in error, (c) without duplication, any amounts in respect of the
items set forth in clauses (i)(a) and (i)(b) permitted hereunder to be retained
by the Master Servicer or to be withdrawn by the Master Servicer from the
Collection Account pursuant to Section 3.18.
"Authenticating Agent": Citibank, or its successor in
interest, or any successor authenticating agent appointed as herein provided.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11
of the United States Code), as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a
Realized Loss resulting from a Deficient Valuation or Debt Service Reduction.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee. Initially, the Book-Entry Certificates
will be the Class A Certificates and the Mezzanine Certificates.
"Book-Entry Custodian": The custodian appointed pursuant to
Section 5.01.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking or savings and loan institutions in the State of New York,
the State of Texas, the State of Missouri, the State of Iowa, the State of
Maryland, the State of California, or in the city in which the Corporate Trust
Office of the Trustee or the Corporate Trust Office of the Paying Agent is
located, are authorized or obligated by law or executive order to be closed.
"Cap Amount": With respect to a Distribution Date, an amount
equal to the aggregate amount received by the Trust Fund from the Cap Contract
immediately prior to such Distribution Date.
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"Cap Contract": The cap contract between the Trustee on behalf
of the Trust and the counterparty thereunder for the benefit of the Holders of
the Class A-1 Certificates in the form attached hereto as Exhibit I.
"Cash-out Refinancing": A Refinanced Mortgage Loan the
proceeds of which were in excess of the principal balance of any existing first
mortgage on the related Mortgaged Property and related closing costs, and were
used to pay any such existing first mortgage, related closing costs and
subordinate mortgages on the related Mortgaged Property.
"Certificate": Any one of the Citigroup Mortgage Loan Trust,
Asset-Backed Pass-Through Certificates, Series 2005-WF1, issued under this
Agreement.
"Certificate Factor": With respect to any Class of
Certificates as of any Distribution Date, a fraction, expressed as a decimal
carried to six places, the numerator of which is the aggregate Certificate
Principal Balance (or the Notional Amount, in the case of the Class CE
Certificates) of such Class of Certificates on such Distribution Date (after
giving effect to any distributions of principal and allocations of Realized
Losses and Extraordinary Trust Fund Expenses in reduction of the Certificate
Principal Balance (or the Notional Amount, in the case of the Class CE
Certificates) of such Class of Certificates to be made on such Distribution
Date), and the denominator of which is the initial aggregate Certificate
Principal Balance (or the Notional Amount, in the case of the Class CE
Certificates) of such Class of Certificates as of the Closing Date.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or a Non-United States Person shall not be a Holder of
a Residual Certificate for any purposes hereof and, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or the Master Servicer or any Affiliate thereof shall be
deemed not to be outstanding and the Voting Rights to which it is entitled shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent has been obtained, except as
otherwise provided in Section 11.01. The Trustee and the Trust Administrator may
conclusively rely upon a certificate of the Depositor or the Master Servicer in
determining whether a Certificate is held by an Affiliate thereof. All
references herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee and the Trust Administrator shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate Margin": With respect to the Class A-1
Certificates and for purposes of the Marker Rate and the Maximum I-LTZZ
Uncertificated Interest Deferral Amount, REMIC I Regular Interest I-LTA1, 0.12%
per annum.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
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"Certificate Principal Balance": With respect to each Class A
Certificate, Mezzanine Certificate or Class P Certificate as of any date of
determination, the Certificate Principal Balance of such Certificate on the
Distribution Date immediately prior to such date of determination plus any
Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.01, minus all distributions allocable to
principal made thereon and, in the case of the Mezzanine Certificates, Realized
Losses allocated thereto on such immediately prior Distribution Date (or, in the
case of any date of determination up to and including the first Distribution
Date, the initial Certificate Principal Balance of such Certificate, as stated
on the face thereof). With respect to the Class CE Certificates as of any date
of determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balance of the REMIC I Regular Interests over (B) the then aggregate Certificate
Principal Balance of the Class A Certificates, the Mezzanine Certificates and
the Class P Certificates then outstanding.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Certificate Registrar": Citibank, or its successor in
interest, or any successor certificate registrar appointed as herein provided.
"Citibank": Citibank, N.A.
"Class": Collectively, all of the Certificates bearing the
same class designation.
"Class A-1 Certificates": Any one of the Class A-1
Certificates executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-1
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class A-2 Certificates": Any one of the Class A-2
Certificates executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-1
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class A-3 Certificates": Any one of the Class A-3
Certificates executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-1
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class A-4 Certificates": Any one of the Class A-4
Certificates executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-1
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class A-5 Certificates": Any one of the Class A-5
Certificates executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-1
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
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"Class A Certificates": Collectively, the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-4 Certificates and the Class A-5 Certificates.
"Class A Principal Distribution Amount": With respect to (i)
any Distribution Date, prior to the Stepdown Date or on which a Trigger Event is
in effect, the lesser of (x) the Principal Distribution Amount for such
Distribution Date and (y) the aggregate Certificate Principal balance of the
Class A Certificates immediately prior to such Distribution Date, and (ii) any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the excess of (x) the aggregate Certificate Principal Balance of
the Class A Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (1) approximately 87.50% and (2) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus $1,453,375.
"Class CE Certificate": Any one of the Class CE Certificates
executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-3
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class M-1 Certificate": Any one of the Class M-1 Certificates
executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-2
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class M-1 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date) and (ii) the Certificate Principal Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) approximately 91.90% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
$1,453,375.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-2
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
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"Class M-2 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date) and (iii) the Certificate
Principal Balance of the Class M-2 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) approximately
95.80% and (ii) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) minus $1,453,375.
"Class M-3 Certificate": Any one of the Class M-3 Certificates
executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-2
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class M-3 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Principal Balance of the Class M-3 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) approximately 98.30% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
$1,453,375.
"Class M-4 Certificate": Any one of the Class M-4 Certificates
executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-2
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class M-4 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution
8
Amount on such Distribution Date), (ii) the Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the distribution of the Class
M-1 Principal Distribution Amount on such Distribution Date), (iii) the
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the distribution of the Class M-2 Principal Distribution Amount on such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date) and (v) the Certificate
Principal Balance of the Class M-4 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) approximately
99.30% and (ii) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) minus $1,453,375.
"Class M Principal Distribution Amount": The Class M-1
Principal Distribution Amount, Class M-2 Principal Distribution Amount, Class
M-3 Principal Distribution Amount and Class M-4 Principal Distribution Amount,
as the context requires.
"Class P Certificate": Any one of the Class P Certificates
executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-4
and evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
"Class R Certificate": Any one of the Class R Certificates
executed by the Paying Agent and authenticated and delivered by the
Authenticating Agent, substantially in the form annexed hereto as Exhibit A-5
and evidencing the ownership of the Class R-I Interest and the Class R-II
Interest.
"Class R-I Interest": The uncertificated Residual Interest in
REMIC I.
"Class R-II Interest": The uncertificated Residual Interest in
REMIC II.
"Closing Date": March 7, 2005.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The account or accounts created and
maintained by the Master Servicer pursuant to Section 3.10(a), which shall be
entitled, "CitiMortgage, Inc., as Master Servicer for CitiMortgage, Inc., as
Trust Administrator, in trust for the registered holders of Citigroup Mortgage
Loan Trust, Asset-Backed Pass-Through Certificates, Series 2005-WF1." The
Collection Account must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
9
"Compensating Interest Payment": With respect to a
Distribution Date, an amount which, when added to all amounts allocable to
interest received in connection with such prepayment, equals one month's
interest on the amount of principal so prepaid at the related mortgage rate net
of the Servicing Fee Rate.
"Corresponding Certificate": With respect to each REMIC I
Regular Interest, the Class of Regular Certificates listed below:
REMIC I Regular Interest Class
------------------------ -----------
I-LTA1 Class X-0
X-XXX0 Xxxxx X-0
X-XXX0 Class X-0
X-XXX0 Xxxxx X-0
X-XXX0 Class A-5
I-LTM1 Class M-1
I-LTM2 Class M-2
I-LTM3 Class M-3
I-LTM4 Class M-4
I-LTP Class P
"Corporate Trust Office": The principal corporate trust office
of the Trustee, the Paying Agent, the Certificate Registrar or the
Authenticating Agent, as the case may be, at which at any particular time its
corporate trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this instrument is
located at (i) with respect to the Trustee, U.S. Bank National Association, Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate
Trust Services, or at such other address as the Trustee may designate from time
to time by notice to the Certificateholders, the Depositor, the Master Servicer,
the Paying Agent, the Certificate Registrar, the Authenticating Agent and the
Trust Administrator and (ii) with respect to the Paying Agent, the Certificate
Registrar and the Authenticating Agent, Citibank, N.A., as Paying Agent, as
Certificate Registrar or as Authenticating Agent, as the case may be, 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address
as the Paying Agent, the Certificate Registrar and the Authenticating Agent may
designate from time to time by notice to the Certificateholders, the Depositor,
the Master Servicer, the Trust Administrator and the Trustee.
"Credit Risk Oversight Advisor": Pentalpha Surveillance
L.L.C., A Delaware limited liability company, or its sucessorin interest.
"Credit Risk Oversight Advisor Fee": With respect to any
Distribution Date, an amount equal to the Credit Risk Oversight Advisor Fee Rate
accrued for one month on the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the related Due Period.
"Credit Risk Oversight Advisor Fee Rate": 0.0150% per annum.
10
"Custodian": A document custodian appointed by the Trustee to
perform (or in the case of the initial Custodian otherwise engaged to perform)
custodial duties with respect to the Mortgage Files. The initial Custodian is
Citibank West, N.A. A Custodian may be the Trustee, any Affiliate of the Trustee
or an independent entity.
"Custodial Agreement": An agreement pursuant to which a
Custodian performs custodial duties with respect to the Mortgage Files. With
respect to the initial Custodian, the applicable agreement pursuant to which the
Initial Custodian performs its custodial duties with respect to the Mortgage
Files.
"Cut-off Date": With respect to each Original Mortgage Loan,
February 1, 2005. With respect to all Qualified Substitute Mortgage Loans, their
respective dates of substitution. References herein to the "Cut-off Date," when
used with respect to more than one Mortgage Loan, shall be to the respective
Cut-off Dates for such Mortgage Loans.
"DBRS": Dominion Bond Rating Service, Inc., or its successor
in interest.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction resulting from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the Bankruptcy
Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage Loan.
"Delinquency Percentage": As of the last day of the related
Due Period, the percentage equivalent of a fraction, the numerator of which is
the aggregate Stated Principal Balance of the Mortgage Loans that, as of the
last day of the previous calendar month, are 60 or more days delinquent, are in
foreclosure, have been converted to REO Properties or in bankruptcy (and
delinquent 60 days or more), and the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties as of the last
day of the previous calendar month.
"Depositor": Citigroup Mortgage Loan Trust Inc., a Delaware
corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
CEDE & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial
11
Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
"Depository Institution": Any depository institution or trust
company, including the Trustee and the Trust Administrator, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has, or is a subsidiary of a holding company that
has, an outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated highest rating category by at least two of the
Rating Agencies (or a comparable rating if S&P, Xxxxx'x and DBRS are not the
Rating Agencies).
"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": With respect to each Distribution Date,
the 18th day of the calendar month in which such Distribution Date occurs or, if
such 18th day is not a Business Day, the Business Day immediately following such
18th day.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by REMIC I, other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Master Servicer on
behalf of the Trustee) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of the following: (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for Xxxxxxx Mac, a majority of its board of directors
is not selected by such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an "electing
large partnership" within the meaning of Section 775 of the Code and (vi) any
other Person so designated by the Trustee based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Residual Certificate by such Person
may cause any REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
12
"Distribution Account": The trust account or accounts created
and maintained by the Paying Agent pursuant to Section 3.10(b) which shall be
entitled "Citibank, N.A., as Paying Agent, in trust for the registered holders
of Citigroup Mortgage Loan Trust Inc., Asset-Backed Pass- Through Certificates,
Series 2005-WF1." The Distribution Account must be an Eligible Account.
"Distribution Date": The 25th day of any month, or if such
25th day is not a Business Day, the Business Day immediately following such 25th
day, commencing in March 2005.
"DOL": The United States Department of Labor or any successor
in interest.
"DOL Regulations": The regulations promulgated by the DOL at
29 C.F.R.ss.2510.3-101.
"Due Date": With respect to each Distribution Date, the first
day of the calendar month in which such Distribution Date occurs, which is the
day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the calendar month preceding the calendar
month in which such Distribution Date occurs and ending on the related Due Date.
"Eligible Account": Any of (i) an account or accounts
maintained with a Depository Institution, (ii) an account or accounts the
deposits in which are fully insured by the FDIC or (iii) a trust account or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Estate in Real Property": A fee simple estate in a parcel of
land.
"Excess Overcollateralized Amount": With respect to the Class
A Certificates and the Mezzanine Certificates and any Distribution Date, the
excess, if any, of (i) the Overcollateralized Amount for such Distribution Date
(calculated for this purpose only after assuming that 100% of the Principal
Remittance Amount on such Distribution Date has been distributed) over (ii) the
Overcollateralization Target Amount for such Distribution Date.
"Expense Adjusted Mortgage Rate": With respect to any Mortgage
Loan (or the related REO Property) as of any date of determination, a per annum
rate of interest equal to the then applicable Mortgage Rate for such Mortgage
Loan minus the sum of the (i) the applicable Servicing Fee Rate, (ii) the
Administration Fee Rate and (iii) the Credit Risk Oversight Advisor Fee Rate.
"Extraordinary Trust Fund Expenses": Any amounts reimbursable
to the Master Servicer or the Depositor pursuant to Section 6.03, any amounts
payable from the Distribution Account in respect of taxes pursuant to Section
10.01(g)(iii), any amounts reimbursable to the
13
Trustee, the Trust Administrator, Citibank or a Custodian from the Trust Fund
pursuant to Section 2.01, Section 8.05 and any other costs, expenses,
liabilities and losses borne by the Trust Fund (exclusive of any cost, expense,
liability or loss that is specific to a particular Mortgage Loan or REO Property
and is taken into account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith judgment of the
Trust Administrator, shall not, obtain reimbursement or indemnification from any
other Person.
"Xxxxxx Xxx": Xxxxxx Xxx, formerly known as the Federal
National Mortgage Association, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Seller, the Depositor or the Master Servicer pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01), a determination
made by the Master Servicer that all Liquidation Proceeds have been recovered.
The Master Servicer shall maintain records of each Final Recovery Determination
made thereby.
"Fixed Rate Certificates": Any of the Class A-2 Certificates,
the Class A-3 Certificates, the Class A-4 Certificates, the Class A-5
Certificates or a Mezzanine Certificate.
"Floating Rate Certificates": The Class A-1 Certificates.
"Formula Rate": With respect to any Distribution Date and
(i) the Class A-1 Certificates, one-month LIBOR plus
the related Certificate Margin,
(ii) the Class A-2 Certificates, 4.49% per annum,
(iii) the Class A-3 Certificates, 5.00% per annum,
(iv) the Class A-4 Certificates, 5.53% per annum;
provided however that if such Distribution Date is after the
Optional Termination Date, the Formula Rate for such Class of
Certificates shall be 6.03% per annum,
(v) the Class A-5 Certificates, 5.01% per annum;
(vi) the Class M-1 Certificates, 5.33% per annum;
provided however that if such Distribution Date is after the
Optional Termination Date, the Formula Rate for such Class of
Certificates shall be 5.83% per annum;
(vii) the Class M-2 Certificates, 5.53% per annum;
provided however that if such Distribution Date is after the
Optional Termination Date, the Formula Rate for such Class of
Certificates shall be 6.03% per annum;
14
(viii) the Class M-3 Certificates, 5.85% per annum;
provided however that if such Distribution Date is after the
Optional Termination Date, the Formula Rate for such Class of
Certificates shall be 6.35% per annum;
(ix) the Class M-4 Certificates, 5.85% per annum;
provided however that if such Distribution Date is after the
Optional Termination Date, the Formula Rate for such Class of
Certificates shall be 6.35% per annum.
"Xxxxxxx Mac": Xxxxxxx Mac, formally known as the Federal Home
Loan Mortgage Corporation, or any successor thereto.
"Highest Priority": As of any date of determination, the Class
of Mezzanine Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the highest priority for payments pursuant to Section
4.01, in the following order: Class X-0, Xxxxx X-0, Class M-3 and Class M-4
Certificates.
"Indenture": An indenture relating to the issuance of notes
secured by the Class CE Certificates, the Class P Certificates and/or the Class
R Certificates (or any portion thereof).
"Independent": When used with respect to any specified Person,
any such Person who (a) is in fact independent of the Depositor, the Master
Servicer and their respective Affiliates, (b) does not have any direct financial
interest in or any material indirect financial interest in the Depositor, the
Master Servicer or any Affiliate thereof, and (c) is not connected with the
Depositor, the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor, the Master Servicer or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor or the Master Servicer or any Affiliate thereof, as the case
may be.
"Independent Contractor": Either (i) any Person (other than
the Master Servicer) that would be an "independent contractor" with respect to
any REMIC within the meaning of Section 856(d)(3) of the Code if any REMIC were
a real estate investment trust (except that the ownership tests set forth in
that section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as any REMIC does
not receive or derive any income from such Person and provided that the
relationship between such Person and any REMIC is at arm's length, all within
the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including the Master Servicer) if the Trust Administrator has received
an Opinion of Counsel for the benefit of the Trustee and the Trust Administrator
to the effect that the taking of any action in respect of any REO Property by
such Person, subject to any conditions therein specified, that is otherwise
herein contemplated to be taken by an Independent Contractor will not cause such
REO Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
15
"Initial Sub-Servicing Agreement": The Seller's Warranties and
Servicing Agreement, dated as of November 1, 2004, between Xxxxx Fargo and the
Seller, as assigned and modified pursuant to the Assignment, Assumption and
Recognition Agreement, dated as of February 1, 2005, among the Seller, Xxxxx
Fargo and the Trustee.
"Insurance Proceeds": Proceeds of any Primary Mortgage
Insurance Policy, title policy, hazard policy or other insurance policy covering
a Mortgage Loan, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the Mortgagor in
accordance with the procedures that the Master Servicer would follow in
servicing mortgage loans held for its own account, subject to the terms and
conditions of the related Mortgage Note and Mortgage.
"Interest Accrual Period": With respect to any Distribution
Date and the Floating Rate Certificates, the period commencing on the
Distribution Date of the month immediately preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date,
commencing on the Closing Date) and ending on the day preceding such
Distribution Date. With respect to any Distribution Date and the Fixed Rate
Certificates, the Class CE Certificates and the REMIC Regular Interests, the
one-month period ending on the last day of the calendar month preceding the
month in which such Distribution Date occurs.
"Interest Carry Forward Amount": With respect to any
Distribution Date and the Class A Certificates or the Mezzanine Certificates,
the sum of (i) the amount, if any, by which (a) the Interest Distribution Amount
for such Class of Certificates as of the immediately preceding Distribution Date
exceeded (b) the actual amount distributed on such Class of Certificates in
respect of interest on such immediately preceding Distribution Date, (ii) the
amount of any Interest Carry Forward Amount for such Class of Certificates
remaining unpaid from the previous Distribution Date and (iii) accrued interest
on the sum of (i) and (ii) above calculated at the related Pass-Through Rate for
the most recently ended Interest Accrual Period.
"Interest Distribution Amount": With respect to any Class A
Certificate, Mezzanine Certificate and the Class CE Certificates and each
Distribution Date, interest accrued during the related Interest Accrual Period
at the Pass-Through Rate for such Certificate for such Distribution Date on the
Certificate Principal Balance, in the case of the Class A Certificates and the
Mezzanine Certificates, or on the Notional Amount, in the case of the Class CE
Certificates, of such Certificate immediately prior to such Distribution Date.
The Class P Certificates is not entitled to distributions in respect of interest
and, accordingly, shall not accrue interest. All distributions of interest on
the Class A-1 Certificates shall be calculated on the basis of a 360-day year
and the actual number of days in the applicable Interest Accrual Period. All
distributions of interest on the Fixed Rate Certificates and the Class CE
Certificates shall be based on a 360-day year consisting of twelve 30-day
months. The Interest Distribution Amount with respect to each Distribution Date,
as to any Class A Certificate, Mezzanine Certificate or the Class CE
Certificates, shall be reduced by an amount equal to the portion allocable to
such Certificate pursuant to Section 1.02 hereof of the sum of (a) the aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date to the extent
not covered by payments pursuant to Section 3.24 and (b) the aggregate amount of
any Relief Act Interest Shortfall, if any, for such Distribution Date.
16
"Interest Determination Date": With respect to the Class A-1
Certificates and REMIC I Regular Interest I-LTA1 and any Interest Accrual Period
therefor, the second London Business Day preceding the commencement of such
Interest Accrual Period.
"Interest Remittance Amount": For any Distribution Date, that
portion of the Available Distribution Amount for the related Distribution Date
that represents interest received or advanced on the Mortgage Loans and
Compensating Interest (net of Servicing Fees, Administration Fees and Credit
Risk Oversight Advisor Fees).
"Late Collections": With respect to any Mortgage Loan, all
amounts received subsequent to the Determination Date immediately following any
Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent for
such Due Period and not previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from any REMIC by reason of its being purchased, sold or
replaced pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01. With respect to any REO Property, either of the following events:
(i) a Final Recovery Determination is made as to such REO Property; or (ii) such
REO Property is removed from REMIC I by reason of its being purchased pursuant
to Section 9.01.
"Liquidation Proceeds": The amount (including any Insurance
Proceeds or amounts received in respect of the rental of any REO Property prior
to REO Disposition) received by the Master Servicer in connection with (i) the
taking of all or a part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation, (ii) the liquidation of a defaulted Mortgage
Loan through a trustee's sale, foreclosure sale or otherwise, or (iii) the
repurchase, substitution or sale of a Mortgage Loan or an REO Property pursuant
to or as contemplated by Section 2.03, Section 3.16(c), Section 3.23 or Section
9.01.
"Loan-to-Value Ratio": As of any date of determination, the
fraction, expressed as a percentage, the numerator of which is the principal
balance of the related Mortgage Loan at such date and the denominator of which
is the Value of the related Mortgaged Property.
"Lockout Certificate Percentage": With respect to any
Distribution Date, the percentage indicated below for such Distribution Date:
-------------------------------------------------------------------------
Distribution Date occurring in: Lockout Percentage
-------------------------------------------------------------------------
March 2005 through and including February 2008 0%
-------------------------------------------------------------------------
March 2008 through and including February 2010 45%
-------------------------------------------------------------------------
March 2010 through and including February 2011 80%
-------------------------------------------------------------------------
March 2011 through and including February 2012 100%
-------------------------------------------------------------------------
17
-------------------------------------------------------------------------
March 2012 and thereafter 300%
-------------------------------------------------------------------------
"Lockout Distribution Amount": With respect to any
Distribution Date, the product of (i) the Lockout Certificate Percentage for
such Distribution Date and (ii) the product of (a) a fraction the numerator of
which is the Certificate Principal balance of the Class A-5 Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Certificate Principal Balance of the Class A Certificates immediately
prior to such Distribution Date and (b) the Class A Principal Distribution
Amount for such Distribution Date.
"London Business Day": Any day on which banks in the City of
London and New York are open and conducting transactions in United States
dollars.
"Marker Rate": With respect to the Class CE Certificates and
any Distribution Date, a per annum rate equal to two (2) times the weighted
average of the REMIC I Remittance Rate for REMIC I Regular Interest I-LTA1,
REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I
Regular Interest I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4 and REMIC I Regular Interest I-LTZZ,
with the rate on each such REMIC I Regular Interest (other than REMIC I Regular
Interest I-LTZZ) subject to a cap equal to the lesser of (i) One-Month LIBOR
plus the related Certificate Margin for the related Corresponding Certificate
and (ii) the related Net WAC Pass-Through Rate for the related Corresponding
Certificate for the purpose of this calculation for such Distribution Date and
with the rate on REMIC I Regular Interest I-LTZZ subject to a cap of zero for
the purpose of this calculation; provided, however, the cap on REMIC Regular
Interest I-LTA1 shall be multiplied by a fraction, the numerator of which is the
actual number of days elapsed in the related Interest Accrual Period and the
denominator of which is 30.
"Master Servicer": CitiMortgage, Inc. or any successor master
servicer appointed as herein provided, in its capacity as Master Servicer
hereunder.
"Master Servicer Certification": A written certification,
substantially in the form attached hereto as Exhibit H, covering servicing of
the Mortgage Loans by the Servicer and signed by an officer of the Master
Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from
time to time, and (ii) the February 21, 2003 Statement by the Staff of the
Division of Corporation Finance of the Securities and Exchange Commission
Regarding Compliance by Asset-Backed Issuers with Exchange Act Rules 13a-14 and
15d-14, as in effect from time to time; provided that if, after the Closing Date
(a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b) the Statement referred to in
clause (ii) is modified or superseded by any subsequent statement, rule or
regulation of the Securities and Exchange Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Securities and Exchange Commission from time to time pursuant
to the Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form or
substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous than the form of the required certification as of the
Closing Date, the Master
18
Servicer Certification shall be as agreed to by the Master Servicer and the
Depositor following a negotiation in good faith to determine how to comply with
any such new requirements.
"Master Servicer Event of Default": One or more of the events
described in Section 7.01.
"Master Servicer Remittance Date": With respect to any
Distribution Date, 12:00 p.m. New York time on the Business Day preceding the
Distribution Date or if the Collection Account is held at Citibank, 12:00 p.m.
New York time on the Distribution Date.
"MERS": Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS System": The system of recording transfers of Mortgages
electronically maintained by MERS.
"MIN": The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS System.
"MOM Loan": With respect to any Mortgage Loans registered with
MERS on the MERS(R) System, MERS acting as the mortgagee of such Mortgage Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
"Mezzanine Certificates": Collectively, the Class M-1
Certificates, the Class M-2 Certificates, the Class M-3 Certificates and the
Class M-4 Certificates.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and interest on such Mortgage Loan which
is payable by the related Mortgagor from time to time under the related Mortgage
Note, determined: (a) after giving effect to (i) any Deficient Valuation and/or
Debt Service Reduction with respect to such Mortgage Loan and (ii) any reduction
in the amount of interest collectible from the related Mortgagor pursuant to the
Relief Act; (b) without giving effect to any extension granted or agreed to by
the Master Servicer pursuant to Section 3.07; and (c) on the assumption that all
other amounts, if any, due under such Mortgage Loan are paid when due.
"Moody's": Xxxxx'x Investors Service, Inc., or its successor
in interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on, or first priority security interest in, a Mortgaged
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 required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned
to the Trustee pursuant to Section 2.01 or Section 2.03(d) of this Agreement, as
from time to time held as a part of REMIC I, the Mortgage Loans so held being
identified in the Mortgage Loan Schedule.
19
"Mortgage Loan Purchase Agreement": The agreement between the
Depositor and the Seller regarding the transfer of the Mortgage Loans by the
Seller to or at the direction of the Depositor, substantially in the form of
Exhibit D annexed hereto.
"Mortgage Loan Remittance Rate": With respect to any Mortgage
Loan or REO Property, as of any date of determination, the then applicable
Mortgage Rate in respect thereof net of the sum of the Servicing Fee Rate and
the Administration Fee Rate.
"Mortgage Loan Schedule": As of any date, the list of Mortgage
Loans included in REMIC I on such date, attached hereto as Schedule 1. The
Mortgage Loan Schedule shall set forth the following information with respect to
each Mortgage Loan:
(i) the Master Servicer's Mortgage Loan identifying number;
(ii) a code indicating whether the Mortgaged Property is
owner-occupied;
(iii) the type of Residential Dwelling constituting the
Mortgaged Property;
(iv) the original months to maturity;
(vii) the original date of the mortgage;
(viii) the Loan-to-Value Ratio at origination;
(ix) the Mortgage Rate in effect immediately following the
Cut-off Date;
(x) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(xi) the stated maturity date;
(xii) the amount of the Monthly Payment at origination;
(xiii) the amount of the Monthly Payment as of the Cut-off
Date;
(xiv) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal Balance;
(xv) the original principal amount of the Mortgage Loan;
(xvi) the Scheduled Principal Balance of the Mortgage Loan as
of the close of business on the Cut-off Date;
(xvii) a code indicating the purpose of the Mortgage Loan
(i.e., purchase financing, Rate/Term Refinancing, Cash-Out
Refinancing);
(xviii) a code indicating the documentation style (i.e., full,
alternative or reduced);
20
(xix) a code indicating if the Mortgage Loan is subject to a
Primary Mortgage Insurance Policy;
(xx) the Value of the Mortgaged Property;
(xxi) the sale price of the Mortgaged Property, if applicable;
(xxii) the actual unpaid principal balance of the Mortgage
Loan as of the Cut-off Date;
(xxiii) the Servicing Fee Rate;
(xxiv) the term of the Prepayment Charge , if any;
(xxv) the percentage of the principal balance covered by
lender paid mortgage insurance, if any.
The Mortgage Loan Schedule shall set forth the following
information with respect to the Mortgage Loans in the aggregate as of the
Cut-off Date: (1) the number of Mortgage Loans; (2) the current principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Rate of the
Mortgage Loans; (4) the weighted average maturity of the Mortgage Loans; (5) the
Scheduled Principal Balance of the Mortgage Loans as of the close of business on
the Cut-off Date (not taking into account any Principal Prepayments received on
the Cut-off Date); and (6) the amount of the Monthly Payment as of the Cut-off
Date. The Mortgage Loan Schedule shall be amended from time to time by the
Depositor in accordance with the provisions of this Agreement. With respect to
any Qualified Substitute Mortgage Loan, Cut-off Date shall refer to the related
Cut-off Date for such Mortgage Loan, determined in accordance with the
definition of Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence
of the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on
Schedule 1 from time to time, and any REO Properties acquired in respect
thereof.
"Mortgage Rate": With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note, without regard to
any reduction thereof as a result of a Debt Service Reduction or operation of
the Relief Act. With respect to each Mortgage Loan that becomes an REO Property,
as of any date of determination, the annual rate determined in accordance with
the immediately preceding sentence as of the date such Mortgage Loan became an
REO Property.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, including any REO Property, consisting of an Estate in Real
Property improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
21
"Net Monthly Excess Cashflow": With respect to any
Distribution Date, the sum of (i) any Overcollateralization Reduction Amount and
(ii) the excess of (x) the Available Distribution Amount for such Distribution
Date over (y) the sum for such Distribution Date of (A) the Senior Interest
Distribution Amount distributable to the holders of the Class A Certificates and
the Interest Distribution Amount distributable to the holders of the Mezzanine
Certificates and (B) the Principal Remittance Amount.
"Net WAC Rate": With respect to any Distribution Date and a
Class of Certificates, the rate per annum (adjusted for the actual number of
days in the related Interest Accrual Period in the case of the Floating Rate
Certificates) equal to the weighted average of the Expense Adjusted Mortgage
Rates of the Mortgage Loans, weighted based on their principal balances as of
the first day of the related Due Period. For federal income tax purposes, the
equivalent of the foregoing shall be expressed as the weighted average of the
REMIC I Remittance Rate on the REMIC I Regular Interests, weighted on the basis
of the Uncertificated Balance of each such REMIC I Regular Interest.
"Net WAC Rate Carryover Amount": With respect to any
Distribution Date and any Class of Certificates, the sum of (A) the positive
excess, if any, of (i) the amount of interest that would have accrued on such
Class of Certificates for such Distribution Date if the Pass-Through Rate for
such Class of Certificates for such Distribution Date were calculated at the
related Formula Rate over (ii) the amount of interest accrued on such Class of
Certificates at the Net WAC Rate for such Distribution Date and (B) the related
Net WAC Rate Carryover Amount for the previous Distribution Date not previously
paid together with interest accrued on such unpaid amount for the most recently
ended Interest Accrual Period at the Pass-Through Rate for such Class of
Certificates and such Distribution Date.
"Net WAC Rate Carryover Reserve Account": The Net WAC Rate
Carryover Reserve Account established and maintained pursuant to Section 4.06.
"New Lease": Any lease of REO Property entered into on behalf
of REMIC I, including any lease renewed or extended on behalf of REMIC I, if
REMIC I-A has the right to renegotiate the terms of such lease.
"Nonrecoverable P&I Advance": Any P&I Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Master Servicer, will not or, in the
case of a proposed P&I Advance, would not be ultimately recoverable from related
late payments, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan
or REO Property as provided herein.
"Non-United States Person": Any Person other than a United
States Person.
"Notional Amount": With respect to the Class CE Certificates
and any Distribution Date, the aggregate Uncertificated Balance of the REMIC I
Regular Interests (other than REMIC I Regular Interest I-LTP) for such
Distribution Date.
"Officers' Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), and by
22
the Treasurer, the Secretary, or one of the assistant treasurers or assistant
secretaries of the Seller or the Depositor, as applicable; with respect to the
Master Servicer, any officer who is authorized to act for the Master Servicer in
matters relating to this Agreement, and whose action is binding upon the Master
Servicer, initially including those individuals whose names appear on the list
of authorized officers delivered at the closing.
"One-Month LIBOR": With respect to the Class A-1 Certificates
and for purposes of the Marker Rate and Maximum I-LTZZ Uncertificated Interest
Deferral Amount, REMIC I Remittance Rate for REMIC I Regular Interest I-LTA1,
and any Interest Accrual Period therefor, the rate determined by the Trust
Administrator on the related Interest Determination Date on the basis of the
offered rate for one-month U.S. dollar deposits, as such rate appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on such Interest Determination
Date; provided that if such rate does not appear on Telerate Page 3750, the rate
for such date will be determined on the basis of the offered rates of the
Reference Banks for one-month U.S. dollar deposits, as of 11:00 a.m. (London
time) on such Interest Determination Date. In such event, the Trust
Administrator will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If on such Interest Determination
Date, two or more Reference Banks provide such offered quotations, One-Month
LIBOR for the related Interest Accrual Period shall be the arithmetic mean of
such offered quotations (rounded upwards if necessary to the nearest whole
multiple of 1/16%). If on such Interest Determination Date, fewer than two
Reference Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest Rate.
Notwithstanding the foregoing, if, under the priorities described above, LIBOR
for an Interest Determination Date would be based on LIBOR for the previous
Interest Determination Date for the third consecutive Interest Determination
Date, the Trust Administrator, after consultation with the Depositor, shall
select an alternative comparable index (over which the Trust Administrator has
no control), used for determining one-month Eurodollar lending rates that is
calculated and published (or otherwise made available) by an independent party.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master Servicer
or the Trust Administrator acceptable to the Trustee, if such opinion is
delivered to the Trustee, or reasonably acceptable to the Trust Administrator,
if such opinion is delivered to the Trust Administrator, except that any opinion
of counsel relating to (a) the qualification of any Trust REMIC as a REMIC or
(b) compliance with the REMIC Provisions must be an opinion of Independent
counsel.
"Optional Termination Date": The Determination Date on which
the aggregate Stated Principal Balance of the Mortgage Loans and each REO
Property remaining in the Trust Fund is less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Original Mortgage Loan": Any Mortgage Loans included in Trust
Fund as of the Closing Date.
"Originator": Xxxxx Fargo Bank, N.A.
23
"Overcollateralization Deficiency Amount": With respect to any
Distribution Date, the excess, if any, of (a) the Overcollateralization Target
Amount applicable to such Distribution Date over (b) the Overcollateralized
Amount applicable to such Distribution Date (calculated for this purpose only
after assuming that 100% of the Principal Remittance Amount on such Distribution
Date has been distributed).
"Overcollateralization Increase Amount": With respect to any
Distribution Date, the lesser of (a) the Net Monthly Excess Cashflow for such
Distribution Date and (b) the Overcollateralization Deficiency Amount for such
Distribution Date.
"Overcollateralization Reduction Amount": With respect to any
Distribution Date, an amount equal to the lesser of (a) the Principal Remittance
Amount for such Distribution Date and (b) the Excess Overcollateralized Amount.
"Overcollateralization Target Amount": With respect to any
Distribution Date, (i) prior to the Stepdown Date, an amount equal to 0.35% of
the aggregate outstanding Stated Principal Balance of the Mortgage Loans as of
the Cut-off Date, (ii) on or after the Stepdown Date provided a Trigger Event is
not in effect, the greater of (x) 0.70% of the then current aggregate
outstanding Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period and (y) $1,453,375, or (iii) on or after the Stepdown
Date and if a Trigger Event is in effect, the Overcollateralization Target
Amount for the immediately preceding Distribution Date. Notwithstanding the
foregoing, on and after any Distribution Date following the reduction of the
aggregate Certificate Principal Balance of the Class A Certificates and the
Mezzanine Certificates to zero, the Overcollateralization Target Amount shall be
zero.
"Overcollateralized Amount": With respect to any Distribution
Date, the excess, if any, of (a) the aggregate Stated Principal Balances of the
Mortgage Loans and REO Properties as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) over (b) the sum of the
aggregate Certificate Principal Balance of the Class A Certificates, the
Mezzanine Certificates and the Class P Certificates after giving effect to
distributions to be made on such Distribution Date.
"Ownership Interest": As to any Certificate, any ownership or
security 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, as owner or as pledgee.
"Pass-Through Rate": With respect to the Class A Certificates
and the Mezzanine Certificates and any Distribution Date, the lesser of (x) the
related Formula Rate for such Distribution Date and (y) the Net WAC Rate for
such Distribution Date.
With respect to the Class CE Certificates and any Distribution
Date, a per annum rate equal to the percentage equivalent of a fraction, the
numerator of which is (x) the sum of (i) 100% of the interest on REMIC I Regular
Interest I-LTP and (ii) interest on the Uncertificated Principal Balance of each
REMIC I Regular Interest listed in clause (y) below at a rate equal to the
related REMIC I Remittance Rate minus the Marker Rate and the denominator of
which is
24
(y) the aggregate Uncertificated Balance of REMIC I Regular Xxxxxxxx
X-XXX0, X-XXX0, X-XXX0, X-XXX0, X-XXX0, I-LTM1, I-LTM2, I-LTM3, I-LTM4 and
I-LTZZ.
"Paying Agent": Citibank, or its successor in interest, or any
successor paying agent appointed as herein provided.
"Percentage Interest": With respect to any Class of
Certificates, the portion of the respective Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the initial Certificate
Principal Balance or Notional Amount represented by such Certificate, and the
denominator of which is the initial aggregate Certificate Principal Balance or
Notional Amount of all of the Certificates of such Class. The Class A
Certificates and the Mezzanine Certificates are issuable only in minimum
Percentage Interests corresponding to minimum initial Certificate Principal
Balances of $100,000 and integral multiples of $1.00 in excess thereof. The
Class P Certificates are issuable only in Percentage Interests corresponding to
initial Certificate Principal Balances of $20 and integral multiples thereof.
The Class CE Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Certificate Principal Balances of $100,000 and
integral multiples of $1.00 in excess thereof; provided, however, that a single
Certificate of each such Class of Certificates may be issued having a Percentage
Interest corresponding to the remainder of the aggregate initial Certificate
Principal Balance or Notional Amount of such Class or to an otherwise authorized
denomination for such Class plus such remainder. With respect to any Residual
Certificate, the undivided percentage ownership in such Class evidenced by such
Certificate, as set forth on the face of such Certificate. The Residual
Certificates are issuable in Percentage Interests of 20% and multiples thereof.
"Permitted Investments": Any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
regardless of whether issued by the Depositor, the Master Servicer, the Trustee,
the Paying Agent, the Authenticating Agent, the Certificate Registrar, the Trust
Administrator or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall
in no event have an original maturity of more than 365 days or a
remaining maturity of more than 30 days) denominated in United States
dollars and issued by, any Depository Institution;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by the Rating
Agencies in its highest long-term unsecured
25
rating category at the time of such investment or contractual
commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by the Rating Agencies in its
highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Trustee, the Trust Administrator or an Affiliate of
either of them, that have been rated "AAA" by S&P and "Aaa" by Moody's;
and
(vii) if previously confirmed in writing to the Master
Servicer, the Trustee and the Trust Administrator, any other demand,
money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing securities having ratings equivalent to its
highest initial rating of the Senior Certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
"Permitted Transferee": Any Transferee of a Residual
Certificate other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"P&I Advance": As to any Mortgage Loan or REO Property, any
advance made by the Master Servicer in respect of any Distribution Date pursuant
to Section 4.03.
"Plan": Any employee benefit plan or certain other retirement
plans and arrangements, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
"Prepayment Assumption": A prepayment rate of 20% HEP. 20% HEP
assumes a constant prepayment rate, or CPR, of 2% per annum in the first month
of the life of a pool of mortgage loans and an additional 2% per annum in each
month thereafter until the 10th month. Beginning in the 11th month and in each
month thereafter during the life of such mortgage loans, 20% HEP assumes a CPR
of 20%. The Prepayment Assumption is used solely for determining the accrual of
original issue discount on the Certificates for federal income tax purposes. A
CPR (or Constant Prepayment Rate) represents an annualized constant assumed rate
of prepayment
26
each month of a pool of mortgage loans relative to its outstanding principal
balance for the life of such pool.
"Prepayment Charge": With respect to any Prepayment Period,
any prepayment premium, penalty or charge payable by a Mortgagor in connection
with any Principal Prepayment on a Mortgage Loan pursuant to the terms of the
related Mortgage Note (other than any Servicer Prepayment Charge Payment
Amount).
"Prepayment Charge Schedule": As of any date, the list of
Prepayment Charges included in the Trust Fund on such date, attached hereto as
Schedule 2 (including the prepayment charge summary attached thereto). The
Prepayment Charge Schedule shall set forth the following information with
respect to each Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the date on which the first Monthly Payment was due on
the related Mortgage Loan;
(iv) the term of the related Prepayment Charge;
(v) the original Stated Principal Balance of the related
Mortgage Loan; and
(vi) the Stated Principal Balance of the related Mortgage Loan
as of the Cut-off Date.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, for each Mortgage Loan that was during the related Prepayment
Period the subject of a Principal Prepayment in full or in part that was applied
by the Master Servicer to reduce the outstanding principal balance of such loan
on a date preceding the Due Date in the succeeding Prepayment Period, an amount
equal to interest at the applicable Mortgage Loan Remittance Rate on the amount
of such Principal Prepayment for the number of days commencing on the date on
which the prepayment is applied and ending on the last day of the related
Prepayment Period. The obligations of the Master Servicer in respect of any
Prepayment Interest Shortfall are set forth in Section 3.24.
"Prepayment Period": With respect to any Distribution Date,
the calendar month preceding the calendar month in which such Distribution Date
occurs.
"Primary Mortgage Insurance Policy": Each primary policy of
mortgage guaranty insurance in effect as represented in the Mortgage Loan
Purchase Agreement and as so indicated on the Mortgage Loan Schedule, or any
replacement policy therefor obtained by the Master Servicer or any Sub-Servicer
pursuant to Section 3.13.
"Prime Rate": The lesser of (i) the per annum rate of
interest, publicly announced from time to time by Chase Manhattan Bank at its
principal office in the City of New York, as its prime or base lending rate (any
change in such rate of interest to be effective on the date such
27
change is announced by Chase Manhattan Bank) and (ii) the maximum rate
permissible under applicable usury or similar laws limiting interest rates.
"Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the principal portion of each Monthly Payment
due during the related Due Period, whether or not received on or prior to the
related Determination Date; (ii) the Stated Principal Balance of any Mortgage
Loan that was purchased during the related Prepayment Period pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01 and the amount of
any shortfall deposited in the Collection Account in connection with the
substitution of a Deleted Mortgage Loan pursuant to Section 2.03 during the
related Prepayment Period; (iii) the principal portion of all other unscheduled
collections (including, without limitation, Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, Subsequent Recoveries and REO Principal
Amortization) received on the Mortgage Loans during the related Prepayment
Period, net of any portion thereof that represents a recovery of principal for
which an Advance was made by the Master Servicer pursuant to Section 4.03 in
respect of a preceding Distribution Date and (iv) any Overcollateralization
Increase Amount for such Distribution Date minus (v) any Overcollateralization
Reduction Amount for such Distribution Date. In no event will the Principal
Distribution Amount with respect to any Distribution Date be (x) less than zero
or (y) greater than the then outstanding aggregate Certificate Principal Balance
of the Class A Certificates and the Mezzanine Certificates.
"Principal Remittance Amount": For any Distribution Date, that
portion of the Available Distribution Amount equal to the sum of the amounts set
forth in (i) through (iii) of the definition of Principal Distribution Amount.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the full
amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Private Certificates": Any of the Class CE, Class P or Class
R Certificates.
"Prospectus Supplement": The Prospectus Supplement, dated
February_, 2005, relating to the public offering of the Class A Certificates and
the Mezzanine Certificates.
"PTCE": A Prohibited Transaction Class Exemption issued by the
United States Department of Labor which provides that exemptive relief is
available to any party to any transaction which satisfies the conditions of the
exemption.
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 9.01, and as confirmed by an Officers' Certificate from the
Master Servicer to the Trustee and the Trust Administrator, an amount equal to
the sum of: (i) 100% of the Stated Principal Balance thereof as of the date of
purchase (or such other price as provided in Section 9.01), (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Mortgage Loan Remittance Rate in effect from time to time from the
Due Date as to which interest was last covered by a payment by the Mortgagor or
an advance by the Master Servicer, which payment or
28
advance had as of the date of purchase been distributed pursuant to Section
4.01, through the end of the calendar month in which the purchase is to be
effected, and (y) an REO Property, the sum of (1) accrued interest on such
Stated Principal Balance at the applicable Mortgage Loan Remittance Rate in
effect from time to time from the Due Date as to which interest was last covered
by a payment by the Mortgagor or an advance by the Master Servicer through the
end of the calendar month immediately preceding the calendar month in which such
REO Property was acquired, plus (2) REO Imputed Interest for such REO Property
for each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, minus the total of all net rental income, Insurance Proceeds,
Liquidation Proceeds and P&I Advances that as of the date of purchase had been
distributed as or to cover REO Imputed Interest pursuant to Section 4.01; (iii)
any unreimbursed Servicing Advances and P&I Advances and any unpaid Servicing
Fees and unpaid Administration Fees allocable to such Mortgage Loan or REO
Property; (iv) any amounts previously withdrawn from the Collection Account in
respect of such Mortgage Loan or REO Property pursuant to Sections 3.11(a)(ix)
and Section 3.16(b); and (v) in the case of a Mortgage Loan required to be
purchased pursuant to Section 2.03, expenses incurred or to be incurred by the
Trust Fund in respect of the breach or defect giving rise to the purchase
obligation including any costs and damages incurred by the Trust Fund in
connection with any violation of any predatory or abusive lending law with
respect to the related Mortgage Loan.
"Qualified Insurer": Any insurer which meets the requirements
of Xxxxxx Xxx and Xxxxxxx Mac.
"Qualified Substitute Mortgage Loan": A mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
which must, on the date of such substitution, (i) have an outstanding principal
balance, after application of all scheduled payments of principal and interest
due during or prior to the month of substitution, not in excess of the Scheduled
Principal Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs, (ii) have a Mortgage Rate
not less than (and not more than one percentage point in excess of) the Mortgage
Rate of the Deleted Mortgage Loan, (iii) be covered under a Primary Mortgage
Insurance Policy if such Qualified Substitute Mortgage Loan has a Loan-to-Value
Ratio in excess of 80% and the Deleted Mortgage Loan was covered by a Primary
Mortgage Insurance Policy, (iv) have a remaining term to maturity not greater
than (and not more than one year less than) that of the Deleted Mortgage Loan,
(v) have the same Due Date as the Due Date on the Deleted Mortgage Loan, (x)
have a Loan-to-Value Ratio as of the date of substitution equal to or lower than
the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, and (vi)
conform to each representation and warranty set forth in Section 6 of the
Mortgage Loan Purchase Agreement applicable to the Deleted Mortgage Loan. In the
event that one or more mortgage loans are substituted for one or more Deleted
Mortgage Loans, the amounts described in clause (i) hereof shall be determined
on the basis of aggregate principal balances, the Mortgage Rates described in
clause (ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the terms described in clause (viii) shall be determined on the basis of
weighted average remaining terms to maturity, the Loan-to-Value Ratios described
in clause (iv) hereof shall be satisfied as to each such mortgage loan and,
except to the extent otherwise provided in this sentence, the representations
and warranties described in clause (vi) hereof must be satisfied as to each
Qualified Substitute Mortgage Loan or in the aggregate, as the case may be.
29
"Rate/Term Refinancing": A Refinanced Mortgage Loan, the
proceeds of which are not in excess of the existing first mortgage loan on the
related Mortgaged Property and related closing costs, and were used exclusively
to satisfy the then existing first mortgage loan of the Mortgagor on the related
Mortgaged Property and to pay related closing costs.
"Rating Agencies": S&P, Xxxxx'x and DBRS or their successors.
If such agencies or their successors are no longer in existence, the "Rating
Agencies" shall be such nationally recognized statistical rating agencies, or
other comparable Persons, designated by the Depositor, written notice of which
designation shall be given to the Trustee, the Trust Administrator, the Paying
Agent, the Authenticating Agent, the Certificate Registrar and the Master
Servicer.
"Realized Loss": With respect to each Mortgage Loan as to
which a Final Recovery Determination has been made, an amount (not less than
zero) equal to (i) the unpaid principal balance of such Mortgage Loan as of the
commencement of the calendar month in which the Final Recovery Determination was
made, plus (ii) accrued interest from the Due Date as to which interest was last
paid by the Mortgagor through the end of the calendar month in which such Final
Recovery Determination was made, calculated in the case of each calendar month
during such period (A) at an annual rate equal to the annual rate at which
interest was then accruing on such Mortgage Loan and (B) on a principal amount
equal to the Stated Principal Balance of such Mortgage Loan as of the close of
business on the Distribution Date during such calendar month, plus (iii) any
amounts previously withdrawn from the Collection Account in respect of such
Mortgage Loan pursuant to Section 3.11(a)(ix) and Section 3.16(b), minus (iv)
the proceeds, if any, received in respect of such Mortgage Loan prior to the
date such Final Recovery Determination was made, net of amounts that are payable
therefrom to the Master Servicer with respect to such Mortgage Loan pursuant to
Section 3.11(a)(iii).
With respect to any REO Property as to which a Final Recovery
Determination has been made an amount (not less than zero) equal to (i) the
unpaid principal balance of the related Mortgage Loan as of the date of
acquisition of such REO Property on behalf of any REMIC, plus (ii) accrued
interest from the Due Date as to which interest was last paid by the Mortgagor
in respect of the related Mortgage Loan through the end of the calendar month
immediately preceding the calendar month in which such REO Property was
acquired, calculated in the case of each calendar month during such period (A)
at an annual rate equal to the annual rate at which interest was then accruing
on the related Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of the related Mortgage Loan as of the close of business on
the Distribution Date during such calendar month, plus (iii) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month that occurs during the Prepayment Period in which such Final
Recovery Determination was made, plus (iv) any amounts previously withdrawn from
the Collection Account in respect of the related Mortgage Loan pursuant to
Section 3.11(a)(ix) and Section 3.16(b), minus (v) the aggregate of all
Servicing Advances made by the Master Servicer in respect of such REO Property
or the related Mortgage Loan (without duplication of amounts netted out of the
rental income, Insurance Proceeds and Liquidation Proceeds described in clause
(vi) below) and any unpaid Servicing Fees and unpaid Administration Fees for
which the Master Servicer has been or, in connection with such Final Recovery
Determination, will be reimbursed pursuant to Section 3.11(a)(iii) or
30
Section 3.23 out of rental income, Insurance Proceeds and Liquidation Proceeds
received in respect of such REO Property, minus (vi) the total of all net rental
income, Insurance Proceeds and Liquidation Proceeds received in respect of such
REO Property that has been, or in connection with such Final Recovery
Determination, will be transferred to the Distribution Account pursuant to
Section 3.23.
With respect to each Mortgage Loan which has become the
subject of a Deficient Valuation, the difference between the principal balance
of the Mortgage Loan outstanding immediately prior to such Deficient Valuation
and the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction, the portion, if any, of the reduction in
each affected Monthly Payment attributable to a reduction in the Mortgage Rate
imposed by a court of competent jurisdiction. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Distribution Date and any
Fixed Rate Certificate, the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs (or in the case of the first
Distribution Date, the close of business on the Closing Date). With respect to
each Distribution Date and any Floating Rate Certificate so long as such
Floating Rate Certificates is a Book-Entry Certificate, the Business Day
immediately preceding such Distribution Date. With respect to each Distribution
Date and any other Certificates, including any Definitive Certificates, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged Property.
"Regular Certificate": Any Class A Certificate, Mezzanine
Certificate, Class CE Certificate or Class P Certificate.
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the Code.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
"Relief Act Interest Shortfall": With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended calendar month as
a result of the application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made, consisting of: (i) such
Mortgage Loans and Prepayment Charges related thereto as from time to time are
subject to this Agreement, together with the Mortgage Files relating
31
thereto, and together with all collections thereon and proceeds thereof; (ii)
any REO Property, together with all collections thereon and proceeds thereof;
(iii) the Trustee's rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement and any
proceeds thereof; (iv) the Depositor's rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby); and (v) the
Collection Account (other than any amounts representing any Servicer Prepayment
Charge Payment Amount), the Distribution Account (other than any amounts
representing any Servicer Prepayment Charge Payment Amount) and any REO Account,
and such assets that are deposited therein from time to time and any investments
thereof, together with any and all income, proceeds and payments with respect
thereto. Notwithstanding the foregoing, however, REMIC I specifically excludes
all payments and other collections of principal and interest due on the Mortgage
Loans on or before the Cut-off Date, all Prepayment Charges payable in
connection with Principal Prepayments on the Mortgage Loans made before the
Cut-off Date, the Net WAC Rate Carryover Reserve Account, the Cap Contract and
Servicer Prepayment Charge Payment Amounts.
"REMIC I Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTAA minus the Marker Rate, divided by (b) 12.
"REMIC I Overcollateralized Amount": With respect to any date
of determination, (i) 1% of the aggregate Uncertificated Balance of the REMIC I
Regular Interests minus (ii) the aggregate Uncertificated Balance of REMIC I
Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular
Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I Regular Interest
I-LTA5, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4 and REMIC I Regular
Interest I-LTP, in each case as of such date of determination.
"REMIC I Principal Loss Allocation Amount": With respect to
any Distribution Date, an amount equal to the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times the
aggregate Uncertificated Balance of REMIC I Regular Interest I-LTA1, REMIC I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4 and REMIC I Regular Interest I-LTZZ.
"REMIC I Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I. Each REMIC I Regular Interest
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time or shall otherwise be entitled to interest as set forth herein, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto. The REMIC I Regular
Interests are as follows: REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTZZ, REMIC I Regular Interest I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I-
32
LTA4, REMIC I Regular Interest I-LTA5, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4 and REMIC I Regular Interest I-LTP.
"REMIC I Remittance Rate": With respect to any Distribution
Date, the rate per annum (adjusted for the actual number of days in the related
Interest Accrual Period in the case of the Floating Rate Certificates) equal to
the weighted average of the Expense Adjusted Mortgage Rates of the Mortgage
Loans, weighted based on their principal balances as of the first day of the
related Due Period.
"REMIC I Required Overcollateralized Amount": 1% of the
Overcollateralization Target Amount.
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in trust to the Trustee, for the benefit
of the Class A Certificates, the Mezzanine Certificates and the Class R-II
Interest and all amounts deposited therein, with respect to which a separate
REMIC election is to be made.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of the Code, and related provisions, and proposed, temporary
and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
"REMIC Regular Interests": The REMIC I Regular Interests.
"Remittance Report": A report in form and substance acceptable
to the Trust Administrator and the Trustee prepared by the Master Servicer
pursuant to Section 4.03 with such additions, deletions and modifications as
agreed to by the Trustee, the Trust Administrator and the Master Servicer.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code as being
included in the term "rents from real property."
"REO Account": The account or accounts maintained by the
Master Servicer in respect of an REO Property pursuant to Section 3.23.
"REO Disposition": The sale or other disposition of an REO
Property on behalf of any Trust REMIC.
"REO Imputed Interest": As to any REO Property, for any
calendar month during which such REO Property was at any time part of REMIC I,
one month's interest at the applicable Mortgage Loan Remittance Rate on the
Stated Principal Balance of such REO Property (or, in the case of the first such
calendar month, of the related Mortgage Loan if appropriate) as of the close of
business on the Distribution Date in such calendar month.
33
"REO Property": A Mortgaged Property acquired by the Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.23.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibit E attached hereto.
"Residential Dwelling": Any one of the following: (i) an
attached or detached one- family dwelling, (ii) a detached two- to four-family
dwelling, (iii) a one-family dwelling unit in a Xxxxxx Xxx eligible condominium
project, or (iv) a detached one-family dwelling in a planned unit development,
none of which is a co-operative, mobile or manufactured home (as defined in 00
Xxxxxx Xxxxxx Code, Section 5402(6)).
"Residual Certificates": The Class R Certificates.
"Residual Interest": The sole class of "residual interests" in
a REMIC within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trust
Administrator, the Paying Agent, the Certificate Registrar or the Authenticating
Agent, the President, any vice president, any assistant vice president, the
Secretary, any assistant secretary, the Treasurer, any assistant treasurer, any
trust officer or assistant trust officer, the Controller and any assistant
controller or any other officer thereof customarily performing functions similar
to those performed by any of the above designated officers and, with respect to
a particular matter relating to this Agreement, to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject. When used with respect to the Trustee, any officer of the Trustee with
direct responsibility for the administration of this Agreement and, with respect
to a particular matter relating to this Agreement, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Scheduled Principal Balance": With respect to any Mortgage
Loan: (a) as of the Cut-off Date, the outstanding principal balance of such
Mortgage Loan as of such date, net of the principal portion of all unpaid
Monthly Payments, if any, due on or before such date; (b) as of any Due Date
subsequent to the Cut-off Date up to and including the Due Date in the calendar
month in which a Liquidation Event occurs with respect to such Mortgage Loan,
the Scheduled Principal Balance of such Mortgage Loan as of the Cut-off Date,
minus the sum of (i) the principal portion of each Monthly Payment due on or
before such Due Date but subsequent to the Cut-off Date, whether or not
received, (ii) all Principal Prepayments received before such Due Date but after
the Cut-off Date, (iii) the principal portion of all Liquidation Proceeds and
Insurance Proceeds received before such Due Date but after the Cut-off Date, net
of any portion thereof that represents principal due (without regard to any
acceleration of payments under the related Mortgage and Mortgage Note) on a Due
Date occurring on or before the date on which such proceeds were received and
(iv) any Realized Loss incurred with respect thereto as a result of a Deficient
Valuation occurring before such Due Date, but only to the extent such Realized
Loss represents a reduction in the portion of principal of such Mortgage Loan
not yet due (without regard to any acceleration of payments under the related
Mortgage and Mortgage Note) as of the date of such Deficient Valuation; and (c)
as of any Due Date subsequent to the
34
occurrence of a Liquidation Event with respect to such Mortgage Loan, zero. With
respect to any REO Property: (a) as of any Due Date subsequent to the date of
its acquisition on behalf of the Trust Fund up to and including the Due Date in
the calendar month in which a Liquidation Event occurs with respect to such REO
Property, an amount (not less than zero) equal to the Scheduled Principal
Balance of the related Mortgage Loan as of the Due Date in the calendar month in
which such REO Property was acquired minus the principal portion of each Monthly
Payment that would have become due on such related Mortgage Loan after such REO
Property was acquired if such Mortgage Loan had not been converted to an REO
Property; and (b) as of any Due Date subsequent to the occurrence of a
Liquidation Event with respect to such REO Property, zero.
"Seller": Citigroup Global Markets Realty Corp. or its
successor in interest, in its capacity as seller under the Mortgage Loan
Purchase Agreement.
"Senior Enhancement Percentage": For any Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the sum of
the aggregate Certificate Principal Balance of the Class M, Class CE and Class P
Certificates, calculated after taking into account distribution of the Principal
Distribution Amount to the Certificates then entitled to distributions of
principal on such Distribution Date,and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period).
"Senior Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) the Interest Distribution
Amount for such Distribution Date for the Class A Certificates and (ii) the
Interest Carry Forward Amount, if any, for such Distribution Date for the Class
A Certificates.
"Servicer Prepayment Charge Payment Amount": The amounts
payable by the Master Servicer in respect of any waived Prepayment Charges
pursuant to Section 3.01.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.09.
"Servicing Advances": The reasonable "out-of-pocket" costs and
expenses incurred by the Master Servicer in connection with a default,
delinquency or other unanticipated event by the Master Servicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged
Property, (ii) any enforcement or judicial proceedings, including foreclosures,
in respect of a particular Mortgage Loan, including any expenses incurred in
relation to any such proceedings that result from the Mortgage Loan being
registered on the MERS System, (iii) the management (including reasonable fees
in connection therewith) and liquidation of any REO Property, and (iv) the
performance of its obligations under Section 3.01, Section 3.09, Section 3.13,
Section 3.14, Section 3.16 and Section 3.23. The Master Servicer shall not be
required to make any Servicing Advance in respect of a Mortgage Loan or REO
Property that, in the good faith business
35
judgment of the Master Servicer, would not be ultimately recoverable from
related Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO
Property as provided herein.
"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, an amount equal to one month's interest (or in the event of
any payment of interest which accompanies a Principal Prepayment in full made by
the Mortgagor during such calendar month, interest for the number of days
covered by such payment of interest) at the Servicing Fee Rate on the same
principal amount on which interest on such Mortgage Loan accrues for such
calendar month. A portion of such Servicing Fee may be retained by any
Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": With respect to each Mortgage Loan, the
rate of 0.375% per annum.
"Servicing Officer": Any employee of the Master Servicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans, whose name appear on a list of Servicing Officers furnished by
the Master Servicer to the Trustee, the Trust Administrator and the Depositor on
the Closing Date, as such list may from time to time be amended.
"Single Certificate": With respect to any Class of
Certificates (other than the Residual Certificates), a hypothetical Certificate
of such Class evidencing a Percentage Interest for such Class corresponding to
an initial Certificate Principal Balance or Notional Amount of $1,000. With
respect to the Class P and the Residual Certificates, a hypothetical Certificate
of such Class evidencing a 20% Percentage Interest in such Class.
"S&P": Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"Startup Day": With respect to any Trust REMIC, the day
designated as such pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan:
(a) as of any date of determination up to but not including the Distribution
Date on which the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the Scheduled Principal Balance of such
Mortgage Loan as of the Cut-off Date, as shown in the Mortgage Loan Schedule,
minus the sum of (i) the principal portion of each Monthly Payment due on a Due
Date subsequent to the Cut-off Date, to the extent received from the Mortgagor
or advanced by the Master Servicer and distributed pursuant to Section 4.01 on
or before such date of determination, (ii) all Principal Prepayments received
after the Cut-off Date, to the extent distributed pursuant to Section 4.01 on or
before such date of determination, (iii) all Liquidation Proceeds and Insurance
Proceeds applied by the Master Servicer as recoveries of principal in accordance
with the provisions of Section 3.16, to the extent distributed pursuant to
Section 4.01 on or before such date of determination, and (iv) any Realized Loss
incurred with respect thereto as a result of a Deficient Valuation made during
or prior to the Prepayment Period for the most recent Distribution Date
coinciding with or preceding such date of determination; and (b) as of any date
of determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (a) as of any date
of determination up to but not including the Distribution Date on which the
proceeds, if
36
any, of a Liquidation Event with respect to such REO Property would be
distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of the Trust Fund, minus, the principal portion of
Monthly Payments that would have become due on such related Mortgage Loan after
such REO Property was acquired if such Mortgage Loan had not been converted to
an REO Property, to the extent advanced by the Master Servicer and distributed
pursuant to Section 4.01 on or before such date of determination; and (b) as of
any date of determination coinciding with or subsequent to the Distribution Date
on which the proceeds, if any, of a Liquidation Event with respect to such REO
Property would be distributed, zero.
"Stayed Funds": If the Master Servicer is the subject of a
proceeding under the federal Bankruptcy Code and the making of any payment
required to be made under the terms of the Certificates and this Agreement is
prohibited by Section 362 of the federal Bankruptcy Code, funds which are in the
custody of the Master Servicer, a trustee in bankruptcy or a federal bankruptcy
court and should have been the subject of such Remittance absent such
prohibition.
"Stepdown Date": The earlier to occur of (i) the first
Distribution Date on which the aggregate Certificate Principal Balance of the
Class A Certificates has been reduced to zero and (ii) the later to occur of (a)
the Distribution Date occurring in March 2008 and (b) the first Distribution
Date on which the Senior Enhancement Percentage (calculated for this purpose
only after taking into account distributions of principal on the Mortgage Loans
but prior to any distribution of the Principal Distribution Amount to the
Certificates then entitled to distributions of principal on such Distribution
Date) is equal to or greater than 12.50%.
"Sub-Servicer": Any Person (i) with which the Master Servicer
has entered into a Sub- Servicing Agreement and which meets the qualifications
of a Sub-Servicer pursuant to Section 3.02 or (ii) in the case of the Initial
Sub-Servicing Agreement, Xxxxx Fargo or a successor that is the servicer under
the Initial Sub-Servicing Agreement.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements set forth in Section 3.08 and is
otherwise acceptable to the Master Servicer.
"Sub-Servicing Agreement": Either (i) the written contract
between the Master Servicer and a Sub-Servicer relating to servicing and
administration of certain Mortgage Loans as provided in Section 3.02 or (ii) the
Initial Sub-Servicing Agreement.
"Subsequent Recoveries": As of any Distribution Date, amounts
received by the Trust Fund (net of any related expenses permitted to be
reimbursed to the related Sub-Servicer or the Master Servicer from such amounts
under the related Sub-Servicing Agreement or hereunder) specifically related to
a Mortgage Loan that was the subject of a liquidation or an REO Disposition
prior to the related Prepayment Period that resulted in a Realized Loss.
"Substitution Shortfall Amount": As defined in Section 2.03(d)
hereof.
37
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of any Trust REMIC due to its classification as a REMIC
under the REMIC Provisions, together with any and all other information reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
"Telerate Page 3750": The display designated as page "3750" on
the Dow Xxxxx Telerate Capital Markets Report (or such other page as may replace
page 3750 on that report for the purpose of displaying London interbank offered
rates of major banks).
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
"Trailing Recoveries": Any Insurance Proceeds, Liquidation
Proceeds and other payments or recoveries on a Mortgage Loan received or
collected by the Master Servicer after a Final Recovery Determination has been
made with respect to such Mortgage Loan or related REO Property.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trigger Event": A Trigger Event is in effect on any
Distribution Date on or after the Stepdown Date if:
(a) the three month rolling average of the Delinquency
Percentage exceeds 50% of the Senior Enhancement Percentage for the prior
Distribution Date; or
(b) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the related Due Period (reduced by the
aggregate amount of Subsequent Recoveries received since the Cut-off Date
through the last day of the related Due Period) divided by aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date exceeds the
applicable percentages set forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------------------------------------
March 2008 through February 2009 0.65%
March 2009 through February 2010 1.00%
March 2010 through February 2011 1.30%
March 2011 and thereafter 1.50%
38
"Trust Administrator": CitiMortgage, Inc., or its successor in
interest, or any successor trust administrator appointed as herein provided.
"Trust Fund": Collectively, all of the assets of each Trust
REMIC, the Net WAC Rate Carryover Reserve Account, the Cap Contract, Servicer
Prepayment Charge Payment Amounts and the other assets conveyed by the Depositor
to the Trustee pursuant to Section 2.01.
"Trust REMIC": Any of REMIC I and REMIC II.
"Trustee": U.S. Bank National Association, or its successor in
interest, or any successor trustee appointed as herein provided.
"Uncertificated Balance": The amount of any REMIC Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Balance of each REMIC Regular Interest shall equal the amount
set forth in the Preliminary Statement hereto as its initial uncertificated
balance. On each Distribution Date, the Uncertificated Balance of each REMIC
Regular Interest shall be reduced by all distributions of principal made on such
REMIC Regular Interest on such Distribution Date pursuant to Section 4.01 and,
if and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 4.04. The
Uncertificated Balance of REMIC I Regular Interest I-LTZZ shall be increased by
interest deferrals as provided in Section 4.01). The Uncertificated Balance of
each REMIC Regular Interest shall never be less than zero.
"Uncertificated Interest": With respect to any REMIC Regular
Interest for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC Regular Interest for such Distribution
Date, accrued on the Uncertificated Balance thereof immediately prior to such
Distribution Date. Uncertificated Interest in respect of any REMIC Regular
Interest shall accrue on the basis of a 360-day year consisting of twelve 30-day
months. Uncertificated Interest with respect to each Distribution Date, as to
any REMIC Regular Interest, shall be reduced by an amount equal to the sum of
(a) the aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date to the extent not covered by payments pursuant to Section 3.24 and (b) the
aggregate amount of any Relief Act Interest Shortfall, if any allocated, in each
case, to such REMIC Regular Interest pursuant to Section 1.02. In addition,
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
Regular Interest shall be reduced by Realized Losses, if any, allocated to such
REMIC Regular Interest pursuant to Section 1.02 and Section 4.04.
"Uninsured Cause": Any cause of damage to a Mortgaged Property
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section
3.14.
"United States Person": 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 (except, in the case of a partnership, to the extent provided in
regulations); provided that, for purposes solely of the restrictions on the
transfer of the Class R Certificates, no partnership or other entity treated as
a partnership for United States
39
federal income tax purposes shall be treated as a United States Person unless
all persons that own an interest in such partnership either directly or through
any entity that is not a corporation for United States federal income tax
purposes are required by the applicable operative agreement to be United States
Persons, or an estate whose income is subject to United States federal income
tax regardless of its source, 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. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to be
treated as a United States person notwithstanding the previous sentence. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code.
"Value": With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator of
the Mortgage Loan at the time of origination of the Mortgage Loan and (ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan, provided, however, in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged Property is based solely upon the
value determined by an appraisal made for the originator of such Refinanced
Mortgage Loan at the time of origination of such Refinanced Mortgage Loan by an
appraiser.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. With respect to any date
of determination, 98% of all Voting Rights will be allocated among the holders
of the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates in proportion to the then outstanding Certificate Principal
Balances of their respective Certificates, 1% of all Voting Rights will be
allocated to the holders of the Class P Certificates and 1% of all Voting Rights
will be allocated among the holders of the Residual Certificates. The Voting
Rights allocated to each Class of Certificate shall be allocated among Holders
of each such Class in accordance with their respective Percentage Interests as
of the most recent Record Date.
"Xxxxx Fargo": Xxxxx Fargo Bank, N.A.
SECTION 1.02 Allocation of Certain Interest Shortfalls.
For purposes of calculating the Interest Distribution Amount
for the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates for any Distribution Date, the aggregate amount of any Prepayment
Interest Shortfalls (to the extent not covered by payments by the Master
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfall
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, to the Class CE Certificates based on, and to the extent of,
one month's interest at the then applicable Pass-Through Rate on the Notional
Amount of the Class CE Certificates and, thereafter, among the Class A
Certificates and the Mezzanine Certificates on a pro rata basis based on, and to
the extent of, one month's interest at the then applicable respective
Pass-Through Rate on the respective Certificate Principal Balance of each such
Certificate immediately prior to such Distribution Date.
40
For purposes of calculating the amount of Uncertificated
Interest for the REMIC I Regular Interests for any Distribution Date, the
aggregate amount of any Prepayment Interest Shortfalls (to the extent not
covered by payments by the Master Servicer pursuant to Section 3.24) and any
Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated among REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I Regular
Interest I-LTA5, REMIC I Regular Interest I-LTA1C, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4 and REMIC I Regular Interest I-LTZZ on a pro rata
basis based on, and to the extent of, one month's interest at the then
applicable respective Pass-Through Rate on the respective Uncertificated Balance
of each such REMIC I Regular Interest.
41
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights of the Depositor under the
Mortgage Loan Purchase Agreement (except Section 18 thereof), and all other
assets included or to be included in REMIC I. Such assignment includes all
interest and principal received by the Depositor or the Master Servicer on or
with respect to the Mortgage Loans (other than payments of principal and
interest due on such Mortgage Loans on or before the Cut-off Date). The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan
Purchase Agreement and delivers to the Paying Agent $1,000 for deposit into the
Net WAC Rate Carryover Reserve Account, and the Trustee and the Paying Agent
acknowledge receipt of the same on behalf of the Certificateholders.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, the Trustee or a Custodian on its
behalf, the following documents or instruments (a "Mortgage File") with respect
to each Mortgage Loan so transferred and assigned:
(i) The Mortgage Note, endorsed by manual or
facsimile signature without recourse by the Originator or an
Affiliate of the Originator in blank or to the Trustee showing
a complete chain of endorsements from the named payee to the
Trustee or from the named payee to the Affiliate of the
Originator and from such Affiliate to the Trustee;
(ii) The original recorded Mortgage, noting the
presence of the MIN of the Mortgage Loan and language
indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan, with evidence of recording
thereon or a copy of the Mortgage certified by the public
recording office in those jurisdictions where the public
recording office retains the original;
(iii) unless the Mortgage Loan is registered on the
MERS(R) System, an assignment from the Originator or an
Affiliate of the Originator to the Trustee in recordable form
of the Mortgage which may be included, where permitted by
local law, in a blanket assignment or assignments of the
Mortgage to the Trustee, including any intervening assignments
and showing a complete chain of title from the original
mortgagee named under the Mortgage to the Person assigning the
Mortgage Loan to the Trustee (or to MERS, noting the presence
of the MIN, if the Mortgage Loan is registered on the MERS(R)
System);
42
(iv) Any original assumption, modification, buydown
or conversion-to- fixed-interest-rate agreement applicable to
the Mortgage Loan;
(v) With respect to any Mortgage Loan listed on the
Mortgage Loan Schedule as subject to a Primary Mortgage
Insurance Policy, the original Primary Mortgage Insurance
Policy or certificate or a copy thereof; and
(vi) The original or a copy of the title insurance
policy (which may be a certificate or a short form policy
relating to a master policy of title insurance) pertaining to
the Mortgaged Property, or in the event such original title
policy is unavailable, a copy of the preliminary title report
and the lender's recording instructions, with the original to
be delivered within 180 days of the Closing Date or an
attorney's opinion of title in jurisdictions where such is the
customary evidence of title.
In instances where an original recorded Mortgage cannot be
delivered by the Depositor to the Trustee (or a Custodian on behalf of the
Trustee) prior to or concurrently with the execution and delivery of this
Agreement, due to a delay in connection with the recording of such Mortgage, the
Depositor may, (a) in lieu of delivering such original recorded Mortgage
referred to in clause (ii) above, deliver to the Trustee (or a Custodian on
behalf of the Trustee) a copy thereof, provided that the Depositor certifies
that the original Mortgage has been delivered to a title insurance company for
recordation after receipt of its policy of title insurance or binder therefor
(which may be a certificate relating to a master policy of title insurance), and
(b) in lieu of delivering the completed assignment in recordable form referred
to in clause (iii) above to the Trustee (or a Custodian on behalf of the
Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of
the Trustee) completed except for recording information. In all such instances,
the Depositor will deliver the original recorded Mortgage and completed
assignment (if applicable) to the Trustee (or a Custodian on behalf of the
Trustee) promptly upon receipt of such Mortgage. In instances where an original
recorded Mortgage has been lost or misplaced, the Depositor or the related title
insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage
bearing recordation information and certified as true and correct by the office
in which recordation thereof was made. In instances where the original or a copy
of the title insurance policy referred to in clause (vi) above (which may be a
certificate relating to a master policy of title insurance) pertaining to the
Mortgaged Property relating to a Mortgage Loan cannot be delivered by the
Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or
concurrently with the execution and delivery of this Agreement because such
policy is not yet available, the Depositor may, in lieu of delivering the
original or a copy of such title insurance referred to in clause (vi) above,
deliver to the Trustee (or a Custodian on behalf of the Trustee) a binder with
respect to such policy (which may be a certificate relating to a master policy
of title insurance) and deliver the original or a copy of such policy (which may
be a certificate relating to a master policy of title insurance) to the Trustee
(or a Custodian on behalf of the Trustee) within 180 days of the Closing Date,
in instances where an original assumption, modification, buydown or
conversion-to-fixed- interest-rate agreement cannot be delivered by the
Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or
concurrently with the execution and delivery of this Agreement, the Depositor
may, in lieu of delivering the original of such agreement referred to in clause
(iv) above, deliver a certified copy thereof.
To the extent not already recorded, except with respect to any
Mortgage Loan for which MERS is identified on the Mortgage or on a properly
recorded assignment of the Mortgage as the mortgagee of record, the Master
Servicer, at the expense of the Seller shall promptly (and in no event later
than five Business Days following the later of the Closing Date and the date of
receipt by the Master Servicer of the recording information for a Mortgage)
submit or cause to be submitted for recording, at no expense to any Trust REMIC,
in the appropriate public office for real property records, each Assignment
delivered to it pursuant to (iii) above. In the event that any such Assignment
is lost or returned unrecorded because of a defect therein, the Master Servicer,
at the expense of the Seller, shall promptly prepare or cause to be prepared a
substitute Assignment or cure or cause to be cured such defect, as the case may
be, and thereafter cause each such Assignment to be duly recorded.
Notwithstanding the foregoing, but without limiting the requirement that such
Assignments be in recordable form, neither the Master Servicer nor the Trustee
shall be required to submit or cause to be submitted for recording any
Assignment delivered to it or a Custodian pursuant to (iii) above if such
recordation shall not, as of the Closing Date, be required by the Rating
Agencies, as a condition to their assignment on the Closing Date of their
initial ratings to the Certificates, as evidenced by the delivery by the Rating
Agencies of their ratings letters on the Closing Date; provided, however,
notwithstanding the foregoing, the Master Servicer shall submit each Assignment
for recording, at no expense to the Trust Fund or the Master Servicer, upon the
earliest to occur of: (A) reasonable direction by Holders of Certificates
entitled to at least 25% of the Voting Rights, (B) the occurrence of a Master
Servicer Event of Termination, (C) the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Seller, (D) the occurrence of a servicing transfer
as described in Section 7.02 of this Agreement and (E) with respect to any one
Assignment the occurrence of a foreclosure relating to the Mortgagor under the
related Mortgage. Notwithstanding the foregoing, if the Seller fails to pay the
cost of recording the Assignments, such expense will be paid by the Master
Servicer and the Master Servicer shall be reimbursed for such expenses by the
Trust as set forth herein.
In connection with the assignment of any Mortgage Loan
registered on the MERS System, the Depositor further agrees that it will cause,
within 30 Business Days after the Closing Date, the MERS System to indicate that
such Mortgage Loans have been assigned by the Depositor to the Trustee in
accordance with this Agreement for the benefit of the Certificateholders by
including in such computer files (a) the code in the field which identifies the
specific Trustee and (b) the code in the field "Pool Field" which identifies the
series of the Certificates issued in connection with such Mortgage Loans. The
Depositor further agrees that it will not, and will not permit the Master
Servicer to, and the Master Servicer agrees that it will not and will not permit
a Sub-Servicer to, alter the codes referenced in this paragraph with respect to
any Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
With respect to a maximum of approximately 5.00% of the
Original Mortgage Loans, by outstanding principal balance of the Original
Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to
in (I)(i) or (II)(i) above cannot be located, the obligations of the Depositor
to deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such
Mortgage Note, if available, with a lost note affidavit. If any of the original
Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or
a Custodian on behalf of the Trustee)
44
is subsequently located, such original Mortgage Note shall be delivered to the
Trustee (or a Custodian on behalf of the Trustee) within three Business Days.
The Depositor shall deliver or cause to be delivered to the
Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof
any other original documents constituting a part of a Mortgage File received
with respect to any Mortgage Loan, including, but not limited to, any original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan.
All original documents relating to the Mortgage Loans that are
not delivered to the Trustee (or a Custodian on behalf of the Trustee) are and
shall be held by or on behalf of the Seller, the Depositor or the Master
Servicer, as the case may be, in trust for the benefit of the Trustee on behalf
of the Certificateholders. In the event that any such original document is
required pursuant to the terms of this Section to be a part of a Mortgage File,
such document shall be delivered promptly to the Trustee (or a Custodian on
behalf of the Trustee). Any such original document delivered to or held by the
Depositor that is not required pursuant to the terms of this Section to be a
part of a Mortgage File, shall be delivered promptly to the Master Servicer.
Wherever it is provided in this Section 2.01 that any
document, evidence or information relating to a Mortgage Loan be delivered or
supplied to the Trustee, the Depositor shall do so by delivery thereof to the
Trustee or a Custodian on behalf of the Trustee.
The parties hereto understand and agree that it is not
intended that any mortgage loan be included in the Trust that is a "High-Cost
Home Loan" as defined in the New Jersey Home Ownership Act effective November
27, 2003, the New Mexico Home Loan Protection Act, effective January 1, 2004 and
the Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004.
The Depositor hereby directs the Trustee to execute, deliver
and perform its obligations under the Cap Contract on the Closing Date and
thereafter on behalf of the Trust and the Holders of the Class A-1 Certificates.
The Seller, the Depositor, the Master Servicer, the Trust Administrator, the
Paying Agent and the Holders of the Class A-1 Certificates by their acceptance
of such Certificates acknowledge and agree that the Trustee shall execute,
deliver and perform the Trust Fund's obligations under the Cap Contract and
shall do so solely in its capacity as Trustee of the Trust Fund and not in its
individual capacity.
SECTION 2.02 Acceptance of the Trust Fund by the Trustee.
Subject to the provisions of Section 2.01 and subject to any
exceptions noted on an exception report delivered by or on behalf of the
Trustee, the Trustee acknowledges receipt of the documents referred to in
Section 2.01 (other than such documents described in Sections 2.01(I)(v) and
(II)(viii)) above and all other assets included in the definition of "Trust
Fund" and declares that it holds and will hold such documents and the other
documents delivered to it constituting the Mortgage File, and that it holds or
will hold all such assets and such other assets included in the definition of
"Trust Fund" in trust for the exclusive use and benefit of all present and
future Certificateholders.
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The Trustee, by execution and delivery hereof, acknowledges
receipt, subject to the review described in the succeeding sentence, of the
documents and other property referred to in Section 2.01 and declares that the
Trustee (or a Custodian on behalf of the Trustee) holds and will hold such
documents and other property, including property yet to be received in the Trust
Fund, in trust, upon the trusts herein set forth, for the benefit of all present
and future Certificateholders. The Trustee or the Custodian on its behalf shall,
for the benefit of the Trustee and the Certificateholders, review each Mortgage
File within 90 days after execution and delivery of this Agreement, to ascertain
that all required documents have been executed, received and recorded, if
applicable, and that such documents relate to the Mortgage Loans. If in the
course of such review the Trustee or the Custodian on its behalf finds a
document or documents constituting a part of a Mortgage File to be defective in
any material respect, the Trustee or the Custodian on its behalf shall promptly
so notify the Depositor, the Trust Administrator, the Paying Agent, the Seller,
the Master Servicer and, if such notice is from the Custodian on the Trustee's
behalf, the Trustee. In addition, upon the discovery by the Depositor, the
Master Servicer, the Trust Administrator, the Paying Agent or the Trustee of a
breach of any of the representations and warranties made by the Seller in the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan which
materially adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties.
The Depositor and the Trustee intend that the assignment and
transfer herein contemplated constitute a sale of the Mortgage Loans, the
related Mortgage Notes and the related documents, conveying good title thereto
free and clear of any liens and encumbrances, from the Depositor to the Trustee
in trust for the benefit of the Certificateholders and that such property not be
part of the Depositor's estate or property of the Depositor in the event of any
insolvency by the Depositor. In the event that such conveyance is deemed to be,
or to be made as security for, a loan, the parties intend that the Depositor
shall be deemed to have granted and does hereby grant to the Trustee a first
priority perfected security interest in all of the Depositor's right, title and
interest in and to the Mortgage Loans, the related Mortgage Notes and the
related documents, and that this Agreement shall constitute a security agreement
under applicable law.
The Trustee may, concurrently with the execution and delivery
hereof or at any time thereafter, enter into a custodial agreement with a
Custodian pursuant to which the Trustee appoints a Custodian to hold the
Mortgage Files on behalf of the Trustee for the benefit of the Trustee and all
present and future Certificateholders, which may provide that the Custodian
shall, on behalf of the Trustee, conduct the review of each Mortgage File
required under the first paragraph of this Section 2.02. Initially, Citibank
West, N.A. is appointed as Custodian with respect to the Mortgage Files of all
the Mortgage Loans and, notwithstanding anything to the contrary herein, it is
understood that such initial Custodian shall be responsible for the review
contemplated in the second paragraph of this Section 2.02 and for all other
functions relating to the receipt, review, reporting and certification provided
for herein with respect to the Mortgage Files (other than ownership thereof for
the benefit of the Certificateholders and related duties and obligations set
forth herein).
46
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by
the Seller or the Depositor.
(a) Upon discovery or receipt of notice by the Depositor, the
Master Servicer, the Trust Administrator or the Trustee of any materially
defective document in, or that a document is missing from, a Mortgage File or of
the breach by the Seller of any representation, warranty or covenant under the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan which
materially adversely affects the value of such Mortgage Loan or the interest
therein of the Certificateholders, the party so discovering or receiving notice
shall promptly notify the other parties to this Agreement, and the Trustee
thereupon shall promptly notify the Seller of such defect, missing document or
breach and request that the Seller deliver such missing document or cure such
defect or breach within 90 days from the date the Seller was notified of such
missing document, defect or breach, and if the Seller does not deliver such
missing document or cure such defect or breach in all material respects during
such period, the Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement (i) to repurchase such Mortgage Loan from REMIC
I at the Purchase Price within 90 days after the date on which the Seller was
notified (subject to Section 2.03(e)) of such missing document, defect or
breach, and (ii) to indemnify the Trust Fund in respect of such missing
document, defect or breach, in the case of each of (i) and (ii), if and to the
extent that the Seller is obligated to do so under the Mortgage Loan Purchase
Agreement. The Purchase Price for the repurchased Mortgage Loan and any
indemnification shall be remitted by the Seller to the Master Servicer for
deposit into the Collection Account, and the Trust Administrator, upon receipt
of written notice from the Master Servicer of such deposit, shall give written
notice to the Trustee that such deposit has taken place and the Trustee shall
release (or cause the Custodian to release on its behalf) to the Seller the
related Mortgage File, and the Trustee and the Trust Administrator shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as the Seller shall furnish to it and as shall be necessary to vest in
the Seller any Mortgage Loan released pursuant hereto, and the Trustee and the
Trust Administrator shall have no further responsibility with regard to such
Mortgage File. In furtherance of the foregoing, if the Seller is not a member of
MERS and repurchases a Mortgage Loan which is registered on the MERS System, the
Seller pursuant to the Mortgage Loan Purchase Agreement at its own expense and
without any right of reimbursement, shall cause MERS to execute and deliver an
assignment of the Mortgage in recordable form to transfer the Mortgage from MERS
to the Seller and shall cause such Mortgage to be removed from registration on
the MERS System in accordance with MERS rules and regulations. In lieu of
repurchasing any such Mortgage Loan as provided above, if so provided in the
Mortgage Loan Purchase Agreement the Seller may cause such Mortgage Loan to be
removed from REMIC I (in which case it shall become a Deleted Mortgage Loan) and
substitute one or more Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(d). It is understood and
agreed that the obligation of the Seller to cure or to repurchase (or to
substitute for) any Mortgage Loan as to which a document is missing, a material
defect in a constituent document exists or as to which such a breach has
occurred and is continuing, and if and to the extent provided in the Mortgage
Loan Purchase Agreement to perform any applicable indemnification obligations
with respect to any such omission, defect or breach, as provided in the Mortgage
Loan Purchase Agreement, shall constitute the only remedies respecting such
omission, defect or breach available to the Trustee or the Trust Administrator
on behalf of the Certificateholders.
47
(b) Notwithstanding anything to the contrary in this Section
2.03, with respect to any breach by the Seller of the representation and
warranty set forth in Section 5(a)(vii) of the Mortgage Loan Purchase Agreement,
which breach materially and adversely affects the value of any Prepayment Charge
or the interests of the Certificateholders therein, Trustee shall enforce the
obligation of the Seller to remedy such breach as provided in the Mortgage Loan
Purchase Agreement as follows: upon any Principal Prepayment with respect to the
affected Mortgage Loan, the Seller shall pay or cause to be paid to the
Purchaser the excess, if any, of (x) the amount of such Prepayment Charge
calculated as set forth in the Mortgage Loan Schedule and (y) the amount
collected from the Mortgagor in respect of such Prepayment Charge.
(c) Within 90 days of the earlier of discovery by the Master
Servicer or receipt of notice by the Master Servicer of the breach of any
representation, warranty or covenant of the Master Servicer set forth in Section
2.05 which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the Master Servicer shall cure such
breach in all material respects.
(d) Any substitution of Qualified Substitute Mortgage Loans
for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected
prior to the date which is two years after the Startup Day for REMIC I.
As to any Deleted Mortgage Loan for which the Seller
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by the Seller delivering to the Trustee (or to the Custodian
on behalf of the Trustee, as applicable), for such Qualified Substitute Mortgage
Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to
the Trustee, and such other documents and agreements, with all necessary
endorsements thereon, as are required by Section 2.01, together with an
Officers' Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection with such substitution. The
Custodian on its behalf and on behalf of the Trustee shall, for the benefit of
the Certificateholders, review each Mortgage File within 90 days after execution
and delivery of this Agreement, to ascertain that all required documents have
been executed, received and recorded, if applicable, and that such documents
relate to the Mortgage Loans. If in the course of such review the Trustee or the
Custodian on its behalf finds a document or documents constituting a part of a
Mortgage File to be defective in any material respect, the Trustee or the
Custodian on its behalf shall promptly so notify the Depositor, the Trust
Administrator, the Seller and the Master Servicer. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution are
not part of the Trust Fund and will be retained by the Seller. For the month of
substitution, distributions to Certificateholders will reflect the Monthly
Payment due on such Deleted Mortgage Loan on or before the Due Date in the month
of substitution, and the Seller shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage Loan. The
Trust Administrator shall give or cause to be given written notice to the
Trustee and the Certificateholders that such substitution has taken place, and
the Trust Administrator shall amend or cause the Custodian to amend the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the
terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and, upon receipt thereof, shall deliver a copy of such
amended Mortgage Loan Schedule to the Master Servicer. Upon such substitution,
such Qualified Substitute Mortgage Loan or Loans shall constitute part of the
48
Mortgage Pool and shall be subject in all respects to the terms of this
Agreement and the Mortgage Loan Purchase Agreement (including all applicable
representations and warranties thereof included in the Mortgage Loan Purchase
Agreement), in each case as of the date of substitution.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (the "Substitution Shortfall Amount"),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan,
the Scheduled Principal Balance thereof as of the date of substitution, together
with one month's interest on such Scheduled Principal Balance at the applicable
Mortgage Rate. On the date of such substitution, the Trustee will monitor the
obligation of the Seller to deliver or cause to be delivered, and shall request
that such delivery be to the Master Servicer for deposit in the Collection
Account, an amount equal to the Substitution Shortfall Amount, if any, and the
Trustee (or the Custodian on behalf of the Trustee, as applicable), upon receipt
of the related Qualified Substitute Mortgage Loan or Loans and written notice
given by the Master Servicer of such deposit, shall release to the Seller the
related Mortgage File or Files and the Trustee and the Trust Administrator shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as the Seller shall deliver to it and as shall be necessary to
vest therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and
deliver to the Trustee and the Trust Administrator an Opinion of Counsel to the
effect that such substitution will not cause (a) any federal tax to be imposed
on any Trust REMIC, including without limitation, any federal tax imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code, or
(b) any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(e) Upon discovery by the Depositor, the Master Servicer, the
Trust Administrator 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 within two Business Days give written notice
thereof to the other parties to this Agreement, and the Trustee shall give
written notice thereof to the Seller. In connection therewith, the Seller
pursuant to the Mortgage Loan Purchase Agreement or the Depositor pursuant to
this Agreement shall repurchase or, subject to the limitations set forth in
Section 2.03(d), substitute one or more Qualified Substitute Mortgage Loans for
the affected Mortgage Loan within 90 days of the earlier of discovery or receipt
of such notice with respect to such affected Mortgage Loan. Such repurchase or
substitution shall be made by (i) the Seller if the affected Mortgage Loan's
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Seller under the Mortgage Loan
Purchase Agreement or (iii) the Depositor, if the affected Mortgage Loan's
status as a non-qualified mortgage is a breach of no representation or warranty.
Any such repurchase or substitution shall be made in the same manner as set
forth in Sections 2.03(a). The Trustee shall reconvey to the Depositor or the
Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in
the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased by the Seller for breach of a representation or warranty.
49
SECTION 2.04 Reserved.
SECTION 2.05 Representations, Warranties and Covenants of the
Master Servicer.
The Master Servicer hereby represents, warrants and covenants
to the Trust Administrator and the Trustee, for the benefit of each of the
Trustee, the Trust Administrator, the Certificateholders and to the Depositor
that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware and is duly authorized and
qualified to transact any and all business contemplated by
this Agreement to be conducted by the Master Servicer in any
state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business
laws of any such State, to the extent necessary to ensure its
ability to enforce each Mortgage Loan and to service the
Mortgage Loans in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power
and authority to service each Mortgage Loan, and to execute,
deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly
authorized by all necessary corporate action on the part of
the Master Servicer the execution, delivery and performance of
this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other
parties hereto, constitutes a legal, valid and binding
obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with its terms, except to the
extent that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b)
the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by
the Master Servicer, the servicing of the Mortgage Loans by
the Master Servicer hereunder, the consummation of any other
of the transactions herein contemplated, and the fulfillment
of or compliance with the terms hereof are in the ordinary
course of business of the Master Servicer and will not (A)
result in a breach of any term or provision of the charter or
by-laws of the Master Servicer or (B) conflict with, result in
a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument
to which the Master Servicer is a party or by which it may be
bound, or any statute, order or regulation applicable to the
Master Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the
Master Servicer; and the Master Servicer is not a party to,
bound by, or in breach or violation of any
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indenture or other agreement or instrument, or subject to or
in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over it, which materially and adversely
affects or, to the Master Servicer's knowledge, would in the
future materially and adversely affect, (x) the ability of the
Master Servicer to perform its obligations under this
Agreement or (y) the business, operations, financial
condition, properties or assets of the Master Servicer taken
as a whole;
(iv) The Master Servicer is an approved
seller/servicer for Xxxxxx Xxx or Xxxxxxx Mac in good standing
and is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act;
(v) No litigation is pending against the Master
Servicer that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or the
ability of the Master Servicer to service the Mortgage Loans
or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(vi) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Master Servicer of,
or compliance by the Master Servicer with, this Agreement or
the consummation of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations
or orders, if any, that have been obtained prior to the
Closing Date;
(vii) The Master Servicer covenants that its computer
and other systems used in servicing the Mortgage Loans operate
in a manner such that the Master Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement;
and
(viii) The Master Servicer (or a Sub-Servicer
servicing the Mortgage Loans on its behalf) is a member of
MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered
with MERS.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.05 shall survive delivery
of the Mortgage Files to the Trustee or to the Custodian on its behalf and shall
inure to the benefit of the Trustee, the Trust Administrator, the Depositor and
the Certificateholders. Upon discovery by any of the Depositor, the Master
Servicer, the Trust Administrator or the Trustee of a breach of any of the
foregoing representations, warranties and covenants which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to the Trustee. Subject to Section 7.01, the obligation of the Master Servicer
set forth in Section 2.03(c) to cure breaches shall constitute the sole remedies
against the Master Servicer available to the Certificateholders, the Depositor,
the Trust Administrator or the Trustee
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on behalf of the Certificateholders respecting a breach of the representations,
warranties and covenants contained in this Section 2.05.
SECTION 2.06 Issuance of the Certificates.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery to it or to the Custodian on its behalf of the Mortgage
Files, subject to the provisions of Section 2.01 and Section 2.02, together with
the assignment to it of all other assets included in REMIC I delivered on the
date hereof, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery of such assets delivered on the date hereof and in
exchange therefor, the Trust Administrator, pursuant to the written request of
the Depositor executed by an officer of the Depositor, has executed, and the
Authenticating Agent has authenticated and delivered, to or upon the order of
the Depositor, the Certificates in authorized denominations. The interests
evidenced by the Certificates constitute the entire beneficial ownership
interest in REMIC II.
SECTION 2.07 Conveyance of the REMIC Regular Interests;
Acceptance of the Trust REMICs by the Trustee.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and interest of the
Depositor in and to the assets described in the definition of REMIC I for the
benefit of the holders of the REMIC I Regular Interests (which are
uncertificated) and the Class R Certificates (in respect of the Class R-I
Interest). The Trustee (or the Custodian on its behalf, as applicable)
acknowledges receipt of the assets described in the definition of REMIC I and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of the holders of the REMIC I Regular Interests and the Class R
Certificates (in respect of the Class R-I Interest). The interests evidenced by
the Class R-I Interest, together with the REMIC I Regular Interests, constitute
the entire beneficial ownership interest in REMIC I.
(b) The Depositor, concurrently with the execution and
delivery hereof, does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and interest of the
Depositor in and to the REMIC I Regular Interests (which are uncertificated) for
the benefit of the Holders of the Regular Certificates and the Class R
Certificates (in respect of the Class R-II Interest). The Trustee acknowledges
receipt of the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of the Holders of the
Regular Certificates and the Class R Certificates (in respect of the Class R-II
Interest). The interests evidenced by the Class R-II Interest, together with the
Regular Certificates, constitute the entire beneficial ownership interest in
REMIC II.
(c) Concurrently with (i) the assignment and delivery to the
Trustee of REMIC I and the acceptance by the Trustee thereof, pursuant to
Section 2.01, Section 2.02 and subsection (a) hereof, and (ii) the assignment
and delivery to the Trustee of REMIC II (including the Residual Interest therein
represented by the Class R-II Interest) and the acceptance by the Trustee
thereof, the Trustee, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed, authenticated and delivered to or
upon the order of the
52
Depositor, and the Class R Certificates in authorized denominations evidencing
the Class R-I Interest and the Class R-II Interest.
53
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01 Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage
Loans on behalf of the Trustee and in the best interests of and for the benefit
of the Certificateholders (as determined by the Master Servicer in its
reasonable judgment) in accordance with the terms of this Agreement and the
respective Mortgage Loans and, to the extent consistent with such terms, in the
same manner in which it services and administers similar mortgage loans for its
own portfolio, giving due consideration to customary and usual standards of
practice of prudent mortgage lenders and loan servicers administering similar
mortgage loans but without regard to:
(i) any relationship that the Master Servicer, any
Sub-Servicer or any Affiliate of the Master Servicer or any
Sub-Servicer may have with the related Mortgagor;
(ii) the ownership of any Certificate by the Master
Servicer or any Affiliate of the Master Servicer;
(iii) the Master Servicer's obligation to make P&I
Advances or Servicing Advances; or
(iv) the Master Servicer's or any Sub-Servicer's
right to receive compensation for its services hereunder or
with respect to any particular transaction.
To the extent consistent with the foregoing, the Master Servicer (a)
shall seek the timely and complete recovery of principal and interest on the
Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a
Prepayment Charge only under the following circumstances: (i) such waiver is
standard and customary in servicing similar Mortgage Loans and (ii) such waiver
relates to a default or a reasonably foreseeable default and would, in the
reasonable judgment of the Master Servicer, maximize recovery of total proceeds
taking into account the value of such Prepayment Charge and the related Mortgage
Loan. If a Prepayment Charge or any portion thereof is waived for any reason
other than as permitted by meeting the standards described in clauses (i) and
(ii) above, then the Master Servicer shall be required to pay the amount of such
waived Prepayment Charge, as a Servicer Prepayment Charge Payment Amount, for
the benefit of the Holders of the P Certificates, by depositing such amount into
the Collection Account together with and at the time that amounts prepaid on the
related Mortgage Loan are required to be deposited into the Collection Account.
To the extent consistent with the foregoing, the Master Servicer shall
also seek to maximize the timely and complete recovery of principal and interest
on the Mortgage Notes. Subject only to the above-described servicing standards
and the terms of this Agreement and of the respective Mortgage Loans, the Master
Servicer shall have full power and authority, acting
54
alone or through Sub-Servicers as provided in Section 3.02, to do or cause to be
done any and all things in connection with such servicing and administration
which it may deem necessary or desirable. Without limiting the generality of the
foregoing, the Master Servicer in its own name or in the name of a Sub-Servicer
is hereby authorized and empowered by the Trustee when the Master Servicer
believes it appropriate in its best judgment in accordance with the servicing
standards set forth above, to execute and deliver, on behalf of the
Certificateholders and the Trustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and Certificateholders. The Master Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided to
them thereby. The Master Servicer shall also comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under each
Primary Mortgage Insurance Policy and any standard hazard insurance policy.
Subject to Section 3.17, the Trustee shall execute, at the written request of
the Master Servicer, and furnish to the Master Servicer and any Sub-Servicer
such documents as are necessary or appropriate to enable the Master Servicer or
any Sub-Servicer to carry out their servicing and administrative duties
hereunder, and the Trustee hereby grants to the Master Servicer a power of
attorney to carry out such duties. The Trustee shall not be liable for the
actions of the Master Servicer or any Sub-Servicers under such powers of
attorney.
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 timely payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.09, and further as provided in Section 3.11. Any cost incurred by the
Master Servicer or by Sub- Servicers in effecting the timely payment of taxes
and assessments on a Mortgaged Property shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit.
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 Sub-Servicer, when the Master Servicer or the Sub-Servicer,
as the case may be, believes it is appropriate in its best judgment to register
any Mortgage Loan on the MERS System, or cause the removal from the registration
of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and all instruments
of assignment and other comparable instruments with respect to such assignment
or re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. Any reasonable expenses (i) incurred as
a result of MERS discontinuing or becoming unable to continue operations in
connection with the MERS System or (ii) if the affected Mortgage Loan is in
default or, in the judgment of the Master Servicer, such default is reasonably
foreseeable, incurred in connection with the actions described in the preceding
sentence, shall be subject to withdrawal by the Master Servicer from the
Collection Account.
55
Notwithstanding anything in this Agreement to the contrary,
the Master Servicer may not make any future advances with respect to a Mortgage
Loan (except as provided in Section 4.03) and the Master Servicer shall not (i)
permit any modification with respect to any Mortgage Loan (except with respect
to a Mortgage Loan that is in default or, in the judgment of the Master
Servicer, such default is reasonably foreseeable) that would change the Mortgage
Rate, reduce or increase the principal balance (except for reductions resulting
from actual payments of principal) or change the final maturity date on such
Mortgage Loan or (ii) permit any modification, waiver or amendment of any term
of any Mortgage Loan that would both (A) effect an exchange or reissuance of
such Mortgage Loan under Section 1001 of the Code (or final, temporary or
proposed Treasury regulations promulgated thereunder) and (B) cause any Trust
REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax
on "prohibited transactions" or "contributions after the startup date" under the
REMIC Provisions.
The Master Servicer may delegate its responsibilities under
this Agreement; provided, however, that no such delegation shall release the
Master Servicer from the responsibilities or liabilities arising under this
Agreement.
SECTION 3.02 Sub-Servicing Agreements Between the Master
Servicer and Sub-Servicers.
(a) The Master Servicer may enter into Sub-Servicing
Agreements (provided that such agreements would not result in a withdrawal or a
downgrading by the Rating Agencies of the rating on any Class of Certificates)
with Sub-Servicers, for the servicing and administration of the Mortgage Loans.
As of the Cut-Off Date, Xxxxx Fargo is the Sub-Servicer with respect to the
Mortgage Loans and in such capacity Xxxxx Fargo will be primarily responsible
for the servicing of such Mortgage Loans.
(b) Each Sub-Servicer shall be (i) authorized to transact
business in the state or states in which the related Mortgaged Properties it is
to service are situated, if and to the extent required by applicable law to
enable the Sub-Servicer to perform its obligations hereunder and under the
Sub-Servicing Agreement, (ii) an institution approved as a mortgage loan
originator by the Federal Housing Administration or an institution the deposit
accounts of which are insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae
approved mortgage servicer. Each Sub-Servicing Agreement must impose on the
Sub-Servicer requirements conforming to the provisions set forth in Section 3.08
and provide for servicing of the Mortgage Loans consistent with the terms of
this Agreement. The Master Servicer will examine each Sub-Servicing Agreement
and will be familiar with the terms thereof. The terms of any Sub-Servicing
Agreement will not be inconsistent with any of the provisions of this Agreement.
The Master Servicer and the Sub-Servicers may enter into and make amendments to
the Sub-Servicing Agreements or enter into different forms of Sub-Servicing
Agreements; provided, however, that any such amendments or different forms shall
be consistent with and not violate the provisions of this Agreement, and that no
such amendment or different form shall be made or entered into which could be
reasonably expected to be materially adverse to the interests of the
Certificateholders, without the consent of the Holders of Certificates entitled
to at least 66% of the Voting Rights. Any variation without the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Sub-Servicing
56
Accounts, or credits and charges to the Sub- Servicing Accounts or the timing
and amount of remittances by the Sub-Servicers to the Master Servicer, are
conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. The Master Servicer shall deliver to the Trustee and the Trust
Administrator copies of all Sub-Servicing Agreements, and any amendments or
modifications thereof, promptly upon the Master Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the Master
Servicer (except as otherwise provided in the last sentence of this paragraph),
for the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement and
of the Seller under the Mortgage Loan Purchase Agreement, including, without
limitation, any obligation to make advances in respect of delinquent payments as
required by a Sub- Servicing Agreement, or to purchase a Mortgage Loan on
account of missing or defective documentation or on account of a breach of a
representation, warranty or covenant, as described in Section 2.03(a). Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer, in its good faith business judgment, would require
were it the owner of the related Mortgage Loans. The Master Servicer shall pay
the costs of such enforcement at its own expense, and shall be reimbursed
therefor only (i) from a general recovery resulting from such enforcement, to
the extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loans, or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed.
SECTION 3.03 Successor Sub-Servicers.
The Master Servicer shall be entitled to terminate any
Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Master Servicer without any act or deed on the part of
such Sub-Servicer or the Master Servicer, and the Master Servicer either shall
service directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02.
Any Sub-Servicing Agreement (other than any Initial
Sub-Servicing Agreement) shall include the provision that such agreement may be
immediately terminated by the Trustee or the Trust Administrator without fee, in
accordance with the terms of this Agreement, in the event that the Master
Servicer shall, for any reason, no longer be the Master Servicer (including
termination due to a Master Servicer Event of Default).
SECTION 3.04 Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Master Servicer and a Sub-Servicer or reference to actions taken through a
Sub-Servicer or otherwise, the Master Servicer shall remain obligated and
primarily liable to the Trustee and the Certificateholders for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
57
3.01 without diminution of such obligation or liability by virtue of such
Sub-Servicing Agreements or arrangements or by virtue of indemnification from
the Sub-Servicer 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. The Master Servicer shall be entitled to enter into any agreement with a
Sub- Servicer for indemnification of the Master Servicer by such Sub-Servicer
and nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
SECTION 3.05 No Contractual Relationship Between
Sub-Servicers and Trustee, Trust Administrator
or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Master Servicer alone, and the Trustee, the Trust Administrator and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Sub-Servicer
except as set forth in Section 3.06. The Master Servicer shall be solely liable
for all fees owed by it to any Sub-Servicer, irrespective of whether the Master
Servicer's compensation pursuant to this Agreement is sufficient to pay such
fees.
SECTION 3.06 Assumption or Termination of Sub-Servicing
Agreements by Trustee.
In the event the Master Servicer shall for any reason no
longer be the master servicer (including by reason of the occurrence of a Master
Servicer Event of Default), the Trustee or its designee shall thereupon assume
all of the rights and obligations of the Master Servicer under each
Sub-Servicing Agreement that the Master Servicer may have entered into, unless
the Trustee elects to terminate any Sub-Servicing Agreement in accordance with
its terms as provided in Section 3.03. Upon such assumption, the Trustee, its
designee or the successor servicer for the Trustee appointed pursuant to Section
7.02 shall be deemed, subject to Section 3.03, to have assumed all of the Master
Servicer's interest therein and to have replaced the Master Servicer as a party
to each Sub-Servicing Agreement to the same extent as if each Sub-Servicing
Agreement had been assigned to the assuming party, except that (i) the Master
Servicer shall not thereby be relieved of any liability or obligations under any
Sub-Servicing Agreement and (ii) none of the Trustee, its designee or any
successor Master Servicer shall be deemed to have assumed any liability or
obligation of the Master Servicer that arose before it ceased to be the Master
Servicer.
The Master Servicer at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
each Sub-Servicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the Sub-
Servicing Agreements to the assuming party.
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SECTION 3.07 Collection of Certain Mortgage Loan Payments.
The Master Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans,
and shall, to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any related Primary Mortgage Insurance Policy
and any other applicable insurance policies, follow such collection procedures
as it would follow with respect to mortgage loans comparable to the Mortgage
Loans and held for its own account. Consistent with the foregoing and the
servicing standards set forth in Section 3.01, the Master Servicer may in its
discretion (i) waive any late payment charge or, if applicable, penalty
interest, only upon determining that the coverage of such Mortgage Loan by the
related Primary Mortgage Insurance Policy, if any, will not be affected, or (ii)
extend the due dates for Monthly Payments due on a Mortgage Note for a period of
not greater than 180 days; provided that any extension pursuant to clause (ii)
above shall not affect the amortization schedule of any Mortgage Loan for
purposes of any computation hereunder, except as provided below. In the event of
any such arrangement pursuant to clause (ii) above, the Master Servicer shall
make timely advances on such Mortgage Loan during such extension pursuant to
Section 4.03 and in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such arrangements.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or, in the judgment of the Master Servicer, such default is reasonably
foreseeable, the Master Servicer, consistent with the standards set forth in
Section 3.01, may waive, modify or vary any term of such Mortgage Loan
(including modifications that change the Mortgage Rate, forgive the payment of
principal or interest or extend the final maturity date of such Mortgage Loan),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan (such payment, a
"Short Pay-off") or consent to the postponement of strict compliance with any
such term or otherwise grant indulgence to any Mortgagor, if in the Master
Servicer's determination such waiver, modification, postponement or indulgence
is not materially adverse to the interests of the Certificateholders (taking
into account any estimated Realized Loss that might result absent such action)..
SECTION 3.08 Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage
Loan pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Agreement relating to the Collection
Account (provided, however, that in the case of the Initial Sub-Servicing
Agreement, the applicable Sub-Servicing Account shall comply with all
requirements of the Initial Sub-Servicing Agreement relating to the Custodial
Account as defined therein). The Sub-Servicer shall deposit in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
two Business Days after the Sub-Servicer's receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than one
Business Day after the deposit of such funds into the clearing account. The
Sub-Servicer shall thereafter remit such proceeds to the Master Servicer for
deposit in the Collection Account
59
not later than two Business Days after the deposit of such amounts in the
Sub-Servicing Account (or, in the case of the Initial Sub-Servicing Agreement,
at such time as is required pursuant to the terms of the Initial Sub-Servicing
Agreement). For purposes of this Agreement, the Master Servicer shall be deemed
to have received payments on the Mortgage Loans when the Sub-Servicer receives
such payments.
SECTION 3.09 Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
The Master Servicer shall establish and maintain (or cause a
Sub-Servicer to establish and maintain) one or more accounts (the "Servicing
Accounts"), into which all collections from the Mortgagors (or related advances
from Sub-Servicers) for the payment of ground rents, taxes, assessments, fire
and hazard insurance premiums, Primary Mortgage Insurance Premiums, water
charges, sewer rents and comparable items for the account of the Mortgagors
("Escrow Payments") shall be deposited and retained. Servicing Accounts shall be
Eligible Accounts. The Master Servicer (or the applicable Sub-Servicer) shall
deposit in the clearing account (which account must be an Eligible Account) in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than two Business Days after the Master Servicer's (or the
applicable Sub-Servicer's) receipt thereof, all Escrow Payments collected on
account of the Mortgage Loans and shall thereafter deposit such Escrow Payments
in the Servicing Accounts, in no event more than one Business Day after the
deposit of such funds in the clearing account, for the purpose of effecting the
payment of any such items as required under the terms of this Agreement.
Withdrawals of amounts from a Servicing Account may be made only to (i) effect
payment of Escrow Payments; (ii) reimburse the Master Servicer (or a
Sub-Servicer to the extent provided in the related Sub-Servicing Agreement) out
of related collections for any advances made pursuant to Section 3.01 (with
respect to taxes and assessments) and Section 3.14 (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on balances in the Servicing Account; (v) clear and terminate the Servicing
Account at the termination of the Master Servicer's obligations and
responsibilities in respect of the Mortgage Loans under this Agreement in
accordance with Article IX; or (vi) recover amounts deposited in error. As part
of its servicing duties, the Master Servicer or Sub-Servicers shall pay to the
Mortgagors interest on funds in Servicing Accounts, to the extent required by
law and, to the extent that interest earned on funds in the Servicing Accounts
is insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. To the extent that a Mortgage does not provide for
Escrow Payments, the Master Servicer shall determine whether any such payments
are made by the Mortgagor in a manner and at a time that avoids the loss of the
Mortgaged Property due to a tax sale or the foreclosure of a tax lien. The
Master Servicer assumes full responsibility for the payment of all such bills
and shall effect payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
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SECTION 3.10 Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Master Servicer shall
establish and maintain one or more separate, segregated trust accounts (such
account or accounts, the "Collection Account"), held in trust for the benefit of
the Trustee and the Certificateholders. On behalf of the Trust Fund, the Master
Servicer shall deposit or cause to be deposited in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than two Business Days after
the Master Servicer's receipt thereof, and shall thereafter deposit in the
Collection Account, in no event more than one Business Day after the deposit of
such funds into the clearing account, as and when received or as otherwise
required hereunder, the following payments and collections received or made by
it from and after the Cut-off Date (other than in respect of principal or
interest on the related Mortgage Loans due on or before the Cut-off Date), or
payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including
Principal Prepayments (but not Prepayment Charges), on the
Mortgage Loans;
(ii) all payments on account of interest (net of the
related Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds, Trailing Recoveries and
Liquidation Proceeds (other than proceeds collected in respect
of any particular REO Property and amounts paid by the Master
Servicer in connection with a purchase of Mortgage Loans and
REO Properties pursuant to Section 9.01);
(iv) any amounts required to be deposited pursuant to
Section 3.12 in connection with any losses realized on
Permitted Investments with respect to funds held in the
Collection Account;
(v) any amounts required to be deposited by the
Master Servicer pursuant to the second paragraph of Section
3.14(a) in respect of any blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or
purchased in accordance with Section 2.03 or Section 9.01;
(vii) all amounts required to be deposited in
connection with shortfalls in principal amount of Qualified
Substitute Mortgage Loans pursuant to Section 2.03;
(viii) all Prepayment Charges collected by the Master
Servicer and any Servicer Prepayment Charge Payment Amounts in
connection with the Principal Prepayment of any of the
Mortgage Loans.
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For purposes of the immediately preceding sentence, the
Cut-off Date with respect to any Qualified Substitute Mortgage Loan shall be
deemed to be the date of substitution.
The foregoing requirements for deposit in the Collection
Accounts shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late payment
charges or assumption fees (other than Prepayment Charges) need not be deposited
by the Master Servicer in the Collection Account. In the event the Master
Servicer shall deposit in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Paying Agent on behalf of
the Trust Administrator shall establish and maintain one or more separate,
segregated trust accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Certificateholders. On behalf of
the Trust Fund, the Master Servicer shall deliver to the Paying Agent in
immediately available funds for deposit in the Distribution Account on or before
12:00 p.m. New York time (i) on the Master Servicer Remittance Date, that
portion of the Available Distribution Amount (calculated without regard to the
subtraction therefrom of the Credit Risk Oversight Advisor Fee or any amounts
described in clause (ii)(a) of the definition thereof) for the related
Distribution Date then on deposit in the Collection Account, the amount of all
Prepayment Charges collected during the applicable Prepayment Period by the
Master Servicer and Servicer Prepayment Charge Payment Amounts in connection
with the Principal Prepayment of any of the Mortgage Loans then on deposit in
the Collection Account and (ii) on each Business Day as of the commencement of
which the balance on deposit in the Collection Account exceeds $75,000 following
any withdrawals pursuant to the next succeeding sentence, the amount of such
excess, but only if the Collection Account constitutes an Eligible Account
solely pursuant to clause (ii) of the definition of "Eligible Account." If the
balance on deposit in the Collection Account exceeds $75,000 as of the
commencement of business on any Business Day and the Collection Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of "Eligible Account," the Master Servicer shall, on or before 12:00 p.m. New
York time on such Business Day, withdraw from the Collection Account any and all
amounts payable or reimbursable to the Depositor, the Master Servicer, the
Trustee, the Trust Administrator, the Seller or any Sub-Servicer pursuant to
Section 3.11 and shall pay such amounts to the Persons entitled thereto.
(c) Funds in the Collection Account and the Distribution
Account may be invested in Permitted Investments in accordance with the
provisions set forth in Section 3.12. The Master Servicer shall give notice to
the Trustee, the Trust Administrator, the Paying Agent and the Depositor of the
location of the Collection Account maintained by it when established and prior
to any change thereof. The Paying Agent shall give notice to the Master
Servicer, the Trust Administrator, the Paying Agent and the Depositor of the
location of the Distribution Account when established and prior to any change
thereof. Funds on deposit in the Net WAC Rate Carryover Reserve Account may be
invested in Permitted Investments in accordance with Section 3.12 subject to any
limitations set forth in Section 4.06, and any investment earnings or interest
paid shall accrue to the benefit of the party designated in such section.
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(d) Funds held in the Collection Account at any time may be
delivered by the Master Servicer to the Paying Agent on behalf of the Trust
Administrator for deposit in an account (which may be the Distribution Account
and must satisfy the standards for the Distribution Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed to be
a part of the Collection Account; provided, however, that the Paying Agent shall
have the sole authority to withdraw any funds held pursuant to this subsection
(d). In the event the Master Servicer shall deliver to the Paying Agent for
deposit in the Distribution Account any amount not required to be deposited
therein, it may at any time request that the Paying Agent withdraw such amount
from the Distribution Account and remit to it any such amount, any provision
herein to the contrary notwithstanding. In addition, the Master Servicer shall
deliver to the Paying Agent from time to time for deposit, and upon written
notification from the Master Servicer, the Paying Agent shall so deposit, in the
Distribution Account:
(i) any P&I Advances, as required pursuant to Section
4.03;
(ii) any amounts required to be deposited pursuant to
Section 3.23(d) or (f) in connection with any REO Property;
(iii) any amounts to be paid by the Master Servicer
in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 9.01;
(iv) any amounts required to be deposited pursuant to
Section 3.24 in connection with any Prepayment Interest
Shortfalls; and
(v) any Stayed Funds, as soon as permitted by the
federal bankruptcy court having jurisdiction in such matters.
(e) Promptly upon receipt of any Stayed Funds, whether from
the Master Servicer, a trustee in bankruptcy, or federal bankruptcy court or
other source, the Paying Agent shall deposit such funds in the Distribution
Account, subject to withdrawal thereof as permitted hereunder.
(f) The Master Servicer shall deposit in the Collection
Account any amounts required to be deposited pursuant to Section 3.12(b) in
connection with losses realized on Permitted Investments with respect to funds
held in the Collection Account.
SECTION 3.11 Withdrawals from the Collection Account and
Distribution Account.
(a) The Master Servicer shall, from time to time, make
withdrawals from the Collection Account for any of the following purposes or as
described in Section 4.03:
(i) to remit to the Paying Agent for deposit in the
Distribution Account the amounts required to be so remitted
pursuant to Section 3.10(b) or permitted to be so remitted
pursuant to the first sentence of Section 3.10(d);
(ii) subject to Section 3.16(d), to reimburse the
Master Servicer for P&I Advances, but only to the extent of
amounts received which represent Late
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Collections (net of the related Servicing Fees) of Monthly
Payments on Mortgage Loans with respect to which such P&I
Advances were made in accordance with the provisions of
Section 4.03; (iii) subject to Section 3.16(d), to pay the
Master Servicer or any Sub- Servicer (A) any unpaid Servicing
Fees and unpaid Administration Fees, (B) any unreimbursed
Servicing Advances with respect to each Mortgage Loan, but
only to the extent of any Liquidation Proceeds, Insurance
Proceeds or other amounts as may be collected by the Master
Servicer from a Mortgagor, or otherwise received with respect
to such Mortgage Loan and (C) any nonrecoverable Servicing
Advances following the final liquidation of a Mortgage Loan,
but only to the extent that Late Collections, Liquidation
Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Master
Servicer or any Sub-Servicer for such Servicing Advances;
(iv) to pay to the Master Servicer as servicing
compensation (in addition to the Servicing Fee and the
Administration Fee) on the Master Servicer Remittance Date any
interest or investment income earned on funds deposited in the
Collection Account;
(v) to pay to the Master Servicer, the Depositor or
the Seller, as the case may be, with respect to each Mortgage
Loan that has previously been purchased or replaced pursuant
to Section 2.03 or Section 3.16(c) all amounts received
thereon subsequent to the date of purchase or substitution, as
the case may be;
(vi) to reimburse the Master Servicer for any P&I
Advance previously made which the Master Servicer has
determined to be a Nonrecoverable P&I Advance in accordance
with the provisions of Section 4.03;
(vii) to reimburse the Master Servicer or the
Depositor for expenses incurred by or reimbursable to the
Master Servicer or the Depositor, as the case may be, pursuant
to Section 6.03;
(viii) to reimburse the Master Servicer, the Trust
Administrator or the Trustee, as the case may be, for expenses
reasonably incurred in respect of the breach or defect giving
rise to the purchase obligation under Section 2.03 or Section
2.04 of this Agreement that were included in the Purchase
Price of the Mortgage Loan, including any expenses arising out
of the enforcement of the purchase obligation;
(ix) to pay, or to reimburse the Master Servicer for
advances in respect of expenses incurred in connection with
any Mortgage Loan pursuant to Section 3.16(b);
(x) [reserved]; and
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(xi) to clear and terminate the Collection Account
pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection Account, to the extent held by or
on behalf of it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (viii) and
(ix) above. The Master Servicer shall provide written notification to the
Trustee, the Trust Administrator and the Paying Agent, on or prior to the next
succeeding Master Servicer Remittance Date, upon making any withdrawals from the
Collection Account pursuant to subclause (vii) above.
(b) The Paying Agent shall, from time to time, make
withdrawals from the Distribution Account, for any of the following purposes,
without priority:
(i) to make distributions to Certificateholders in
accordance with Section 4.01;
(ii) to pay to itself any interest income earned on
funds deposited in the Distribution Account pursuant to
Section 3.12(c);
(iii) to reimburse the Trust Administrator or the
Trustee pursuant to Section 7.02;
(iv) to pay any amounts in respect of taxes pursuant
to 10.01(g)(iii);
(v) to pay any Extraordinary Trust Fund Expenses;
(vi) to reimburse the Paying Agent or the Trustee for
any P&I Advance made by it under Section 7.01 (if not
reimbursed by the Master Servicer) to the same extent the
Master Servicer would be entitled to reimbursement under
Section 3.11(a); and
(vii) to clear and terminate the Distribution Account
pursuant to Section 9.01.
SECTION 3.12 Investment of Funds in the Collection Account
and the Distribution Account.
(a) The Master Servicer may direct any depository institution
maintaining the Collection Account (for purposes of this Section 3.12, an
"Investment Account"), and the Paying Agent may direct any depository
institution maintaining the Distribution Account (for purposes of this Section
3.12, also an "Investment Account"), to hold the funds in such Investment
Account uninvested or to invest the funds in such Investment Account in one or
more Permitted Investments specified in such instruction bearing interest or
sold at a discount, and maturing, unless payable on demand, (i) no later than
the Business Day immediately preceding the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if a Person other
than the Paying Agent is the obligor thereon, and (ii) no later than the date on
which such funds are required to be withdrawn from such account pursuant to this
Agreement, if
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the Paying Agent is the obligor thereon. All such Permitted Investments shall be
held to maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Trust Administrator (in its
capacity as such) or in the name of a nominee of the Trust Administrator. The
Trust Administrator shall be entitled to sole possession (except with respect to
investment direction of funds held in the Collection Account and the
Distribution Account and any income and gain realized thereon) over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trust Administrator or its agent,
together with any document of transfer necessary to transfer title to such
investment to the Trust Administrator or its nominee. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trust Administrator shall:
(x) consistent with any notice required to be
given thereunder, demand that payment
thereon be made on the last day such
Permitted Investment may otherwise mature
hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder
and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder
promptly upon determination by a Responsible
Officer of the Trust Administrator that such
Permitted Investment would not constitute a
Permitted Investment in respect of funds
thereafter on deposit in the Investment
Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account held by or on behalf of the Master Servicer,
shall be for the benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.11. The Master Servicer shall deposit in
the Collection Account the amount of any loss of principal incurred in respect
of any such Permitted Investment made with funds in such accounts immediately
upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by or on behalf of the Paying Agent,
shall be for the benefit of the Paying Agent and shall be subject to its
withdrawal at any time. The Paying Agent shall deposit in the Distribution
Account the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately upon
realization of such loss.
(d) Funds on deposit in the Net WAC Rate Carryover Reserve
Account may be invested in Permitted Investments in accordance with this Section
3.06 subject to any limitations set forth in Section 4.06, and any investment
earnings or interest paid shall accrue to the benefit of the party designated in
such applicable section.
(e) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.01 and Section
8.02(a)(v), upon the request of the Holders of Certificates representing
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more than 50% of the Voting Rights allocated to any Class of Certificates, shall
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
SECTION 3.13 Maintenance of the Primary Mortgage Insurance
Policies; Collections Thereunder.
The Master Servicer will maintain or cause the related
Sub-Servicer, if any, to maintain in full force and effect, if required under
the Mortgage Loan Purchase Agreement and to the extent available, a Primary
Mortgage Insurance Policy with respect to each Mortgage Loan so insured as of
the Closing Date (or, in the case of a Qualified Substitute Mortgage Loan, on
the date of substitution). Such coverage will be maintained with respect to each
such Mortgage Loan for so long as it is outstanding, subject to any applicable
laws. The Master Servicer shall cause the premium for each Primary Mortgage
Insurance Policy to be paid on a timely basis and shall pay such premium out of
its own funds if it is not otherwise paid. The Master Servicer or the related
Sub-Servicer, if any, will not cancel or refuse to renew any such Primary
Mortgage Insurance Policy in effect on the Closing Date (or, in the case of a
Qualified Substitute Mortgage Loan, on the date of substitution) that is
required to be kept in force under this Agreement unless a replacement Primary
Mortgage Insurance Policy for such canceled or non-renewed policy is obtained
from and maintained with a Qualified Insurer.
The Master Servicer shall not take, or permit any Sub-Servicer
to take, any action which would result in non-coverage under any applicable
Primary Mortgage Insurance Policy of any loss which, but for the actions of the
Master Servicer or Sub-Servicer, would have been covered thereunder. The Master
Servicer will comply in the performance of this Agreement with all reasonable
rules and requirements of each insurer under each Primary Mortgage Insurance
Policy. In connection with any assumption and modification agreement or
substitution of liability agreement entered into or to be entered into pursuant
to Section 3.15, the Master Servicer shall promptly notify the insurer under the
related Primary Mortgage Insurance Policy, if any, of such assumption in
accordance with the terms of such policies and shall take all actions which may
be required by such insurer as a condition to the continuation of coverage under
the Primary Mortgage Insurance Policy. If any such Primary Mortgage Insurance
Policy is terminated as a result of such assumption, the Master Servicer or the
related Sub-Servicer shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
In connection with its activities as administrator and
servicer of the Mortgage Loans, the Master Servicer agrees to prepare and
present, on behalf of itself, the Trustee and the Certificateholders, claims to
the insurer under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such policies and, in this regard, to take such
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Any amounts collected by
the Master Servicer under any Primary Mortgage Insurance Policy shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.11; and any amounts collected by the Master Servicer under any Primary
Mortgage Insurance Policy in respect of any REO Property shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 3.23. In those
cases in which a Mortgage Loan is serviced by a Sub-Servicer, the Sub-Servicer,
on behalf of itself, the Trustee, and the Certificateholders, will present
claims to the insurer under any Primary Mortgage
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Insurance Policy and all collections thereunder shall be deposited initially in
the Sub-Servicing Account.
SECTION 3.14 Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the least of (i) the current
principal balance of such Mortgage Loan, (ii) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis and (iii) the maximum insurable value of
the improvements which are a part of such Mortgaged Property, in each case in an
amount not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. The Master
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage Loan
at the time it became an REO Property, plus accrued interest at the Mortgage
Rate and related Servicing Advances. The Master Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any such hazard policies. Any amounts to be collected by the
Master Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Master Servicer would follow in servicing loans held for its own account,
subject to the terms and conditions of the related Mortgage and Mortgage Note)
shall be deposited in the Collection Account, subject to withdrawal pursuant to
Section 3.11, if received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.23, if received in respect of an REO
Property. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or other additional insurance is
to be required of any Mortgagor other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property or REO Property is at any time
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Master Servicer will
cause to be maintained a flood insurance policy in respect thereof. Such flood
insurance shall be in an amount equal to the lesser of (i) the unpaid principal
balance of the related Mortgage Loan and (ii) the maximum amount of such
insurance available for the related Mortgaged Property under the national flood
insurance program (assuming that the area in which such Mortgaged Property is
located is participating in such program).
In the event that the Master Servicer shall obtain and
maintain a blanket policy with an insurer having a General Policy Rating of A:X
or better in Best's Key Rating Guide (or such other rating that is comparable to
such rating) insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first two sentences of this Section 3.14, it being understood and agreed
that such policy may contain a deductible clause, in which case the Master
Servicer shall, in the event that there shall
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not have been maintained on the related Mortgaged Property or REO Property a
policy complying with the first two sentences of this Section 3.14, and there
shall have been one or more losses which would have been covered by such policy,
deposit to the Collection Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Master Servicer agrees to prepare and present, on behalf of itself,
the Trustee and the Certificateholders, claims under any such blanket policy in
a timely fashion in accordance with the terms of such policy.
(b) The Master Servicer shall keep in force during the term of
this Agreement a policy or policies of insurance covering errors and omissions
for failure in the performance of the Master Servicer's obligations under this
Agreement, which policy or policies shall be in such form and amount that would
meet the requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of
the Mortgage Loans, unless the Master Servicer has obtained a waiver of such
requirements from Xxxxxx Mae or Xxxxxxx Mac. The Master Servicer shall also
maintain a fidelity bond in the form and amount that would meet the requirements
of Xxxxxx Mae or Xxxxxxx Mac, unless the Master Servicer has obtained a waiver
of such requirements from Xxxxxx Mae or Xxxxxxx Mac. The Master Servicer shall
provide the Trustee (upon the Trustee's reasonable request) with copies of any
such insurance policies and fidelity bond. The Master Servicer shall be deemed
to have complied with this provision if an Affiliate of the Master Servicer has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Master Servicer. Any such errors and omissions policy and fidelity bond
shall by its terms not be cancelable without thirty days' prior written notice
to the Trustee. The Master Servicer shall also cause each Sub-Servicer to
maintain a policy of insurance covering errors and omissions and a fidelity bond
which would meet such requirements.
SECTION 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of
any conveyance or prospective conveyance of any Mortgaged Property by any
Mortgagor (whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains or is to remain liable under the Mortgage Note and/or
the Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto; provided,
however, that the Master Servicer shall not exercise any such rights if
prohibited by law from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Master Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, or if any of the other
conditions set forth in the proviso to the preceding sentence apply, the Master
Servicer will enter into an assumption and modification agreement from or with
the person to whom such property has been conveyed or is proposed to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. The Master Servicer is also authorized to enter into a
substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted as
the Mortgagor and becomes liable under the Mortgage Note, provided that no such
substitution shall be effective unless such person
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satisfies the underwriting criteria of the Master Servicer. In connection with
any assumption or substitution, the Master Servicer shall apply such
underwriting standards and follow such practices and procedures as shall be
normal and usual in its general mortgage servicing activities and as it applies
to other mortgage loans owned solely by it. The Master Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable Primary Mortgage
Insurance Policy or hazard insurance policy, or a new policy meeting the
requirements of this Section is obtained. Any fee collected by the Master
Servicer in respect of an assumption or substitution of liability agreement will
be retained by the Master Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the related Mortgage Rate and the amount of the
Monthly Payment) may be amended or modified, except as otherwise required
pursuant to the terms thereof. The Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by forwarding
to the Custodian (with a copy to the Trustee) the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Master Servicer shall not be deemed to be in default,
breach or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or by the terms of the
Mortgage Note or any assumption which the Master Servicer may be restricted by
law from preventing, for any reason whatever. For purposes of this Section 3.15,
the term "assumption" is deemed to also include a sale (of the Mortgaged
Property) subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
SECTION 3.16 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall, consistent with the servicing
standard set forth in Section 3.01, foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments pursuant to Section 3.07. The Master
Servicer shall be responsible for all costs and expenses incurred by it in any
such proceedings; provided, however, that such costs and expenses will be
recoverable as Servicing Advances by the Master Servicer as contemplated in
Section 3.11 and Section 3.23. The foregoing is subject to the provision that,
in any case in which Mortgaged Property shall have suffered damage from an
Uninsured Cause, the Master Servicer shall not be required to expend its own
funds toward the restoration of such property unless it shall determine in its
discretion that such restoration will increase the proceeds of liquidation of
the related Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section
3.16 or any other provision of this Agreement, with respect to any Mortgage Loan
as to which the Master Servicer has received actual notice of, or has actual
knowledge of, the presence of any toxic or hazardous substance on the related
Mortgaged Property, the Master Servicer shall not, on behalf of the
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Trustee, either (i) obtain title to such Mortgaged Property as a result of or in
lieu of foreclosure or otherwise, or (ii) otherwise acquire possession of, or
take any other action with respect to, such Mortgaged Property, if, as a result
of any such action, the Trustee, the Trust Fund, the Trust Administrator, the
Master Servicer or the Certificateholders would be considered to hold title to,
to be a "mortgagee-in- possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Master Servicer has also previously
determined, based on its reasonable judgment and a report prepared by a Person
who regularly conducts environmental audits using customary industry standards,
that:
(1) such Mortgaged Property is in compliance with
applicable environmental laws or, if not, that it would be in
the best economic interest of the Trust Fund to take such
actions as are necessary to bring the Mortgaged Property into
compliance therewith; and
(2) there are no circumstances present at such
Mortgaged Property relating to the use, management or disposal
of any hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials for which investigation,
testing, monitoring, containment, clean-up or remediation
could be required under any federal, state or local law or
regulation, or that if any such materials are present for
which such action could be required, that it would be in the
best economic interest of the Trust Fund to take such actions
with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by
this Section 3.23 shall be advanced by the Master Servicer, subject to the
Master Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.11(a)(ix), such right of reimbursement being prior to the
rights of Certificateholders to receive any amount in the Collection Account
received in respect of the affected Mortgage Loan or other Mortgage Loans.
If the Master Servicer determines, as described above, that it
is in the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Master Servicer,
subject to the Master Servicer's right to be reimbursed therefor from the
Collection Account as provided in Section 3.11(a)(ix), such right of
reimbursement being prior to the rights of Certificateholders to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
(c) The Master Servicer shall have the right to purchase from
REMIC I any defaulted Mortgage Loan that is 90 days or more delinquent, which
the Servicer determines in good faith will otherwise become subject to
foreclosure proceedings (evidence of such determination to be delivered in
writing to the Trustee and the Trust Administrator, in form and
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substance satisfactory to the Trustee and the Trust Administrator prior to
purchase), at a price equal to the Purchase Price. The Purchase Price for any
Mortgage Loan purchased hereunder shall be deposited in the Collection Account,
and the Trust Administrator, upon receipt of written certification from the
Master Servicer of such deposit, shall release or cause to be released to the
Servicer the related Mortgage File and the Trustee, upon receipt of written
certification from the Master Servicer of such deposit, shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Master Servicer shall furnish and as shall be necessary to vest
in the Master Servicer title to any Mortgage Loan released pursuant hereto.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds, in respect of any Mortgage Loan,
will be applied in the following order of priority: first, to reimburse the
Master Servicer or any Sub-Servicer for any related unreimbursed Servicing
Advances and P&I Advances, pursuant to Section 3.11(a)(ii) or (a)(iii)(B);
second, to accrued and unpaid interest on the Mortgage Loan, to the date of the
Final Recovery Determination, or to the Due Date prior to the Distribution Date
on which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the amount
of such recovery will be allocated by the Master Servicer as follows: first, to
unpaid Servicing Fees and unpaid Administration Fees; and second, to the balance
of the interest then due and owing. The portion of the recovery so allocated to
unpaid Servicing Fees and unpaid Administration Fees shall be reimbursed to the
Master Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii)(A).
SECTION 3.17 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer will
immediately notify the Custodian, on behalf of the Trustee, by a certification
in the form of Exhibit E (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request that the Custodian, on behalf of the Trustee, deliver to it the Mortgage
File. Upon receipt of such certification and request, the Custodian, on behalf
of the Trustee, shall promptly release the related Mortgage File to the Master
Servicer, and the Master Servicer is authorized to cause the removal from the
registration on the MERS(R) System of any such Mortgage, if applicable, and to
execute and deliver, on behalf of the Trustee and the Certificateholders or any
of them, any and all instruments of satisfaction or cancellation or of partial
or full release. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or the Distribution Account.
The Trustee (or a Custodian on its behalf) shall, at the
written request and expense of any Certificateholder, provide a written report
to such Certificateholder of all Mortgage Files released to the Master Servicer
for servicing purposes.
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(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Primary Mortgage Insurance Policy or any other insurance policy relating to
the Mortgage Loans, the Custodian, on behalf of the Trustee, shall, upon request
of the Master Servicer and delivery to the Custodian and the Trustee of a
Request for Release in the form of Exhibit E-l, release the related Mortgage
File to the Master Servicer, and the Custodian, on behalf of the Trustee, shall,
at the direction of the Master Servicer, execute such documents as shall be
necessary to the prosecution of any such proceedings. Such Request for Release
shall obligate the Master Servicer to return each and every document previously
requested from the Mortgage File to the Custodian when the need therefor by the
Master Servicer no longer exists, unless the Mortgage Loan has been liquidated
and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Collection Account or the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Master Servicer has delivered to the Custodian, on
behalf of the Trustee, a certificate of a Servicing Officer certifying as to the
name and address of the Person to which such Mortgage File or such document was
delivered and the purpose or purposes of such delivery. Upon receipt of a
certificate of a Servicing Officer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the Collection Account
have been so deposited, or that such Mortgage Loan has become an REO Property, a
copy of the Request for Release shall be released by the Custodian, on behalf of
the Trustee, to the Master Servicer.
(c) Upon written certification of a Servicing Officer, the
Trustee shall execute and deliver to the Master Servicer any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
SECTION 3.18 Servicing Compensation.
As compensation for the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to the Servicing Fee and the
Administration Fee with respect to each Mortgage Loan payable solely from
payments of interest in respect of such Mortgage Loan, subject to Section 3.24.
In addition, the Master Servicer shall be entitled to recover unpaid Servicing
Fees and unpaid Administration Fees out of Insurance Proceeds or Liquidation
Proceeds to the extent permitted by Section 3.11(a)(iii)(A) and out of amounts
derived from the operation and sale of an REO Property to the extent permitted
by Section 3.23. The right to receive the Servicing Fee and the Administration
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer's responsibilities and obligations under
this Agreement.
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Additional servicing compensation in the form of assumption
fees, late payment charges and other similar fees and charges (other than
Prepayment Charges) shall be retained by the Master Servicer (subject to Section
3.24) only to the extent such fees or charges are received by the Master
Servicer. The Master Servicer shall also be entitled pursuant to Section
3.11(a)(iv) to withdraw from the Collection Account, and pursuant to Section
3.23(b) to withdraw from any REO Account, as additional servicing compensation,
interest or other income earned on deposits therein, subject to Section 3.12 and
Section 3.24. The Master Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder (including premiums
due under the Primary Insurance Policies, if any, premiums for the insurance
required by Section 3.14, to the extent such premiums are not paid by the
related Mortgagors or by a Sub-Servicer, servicing compensation of each
Sub-Servicer, and to the extent provided herein in Section 8.05, the fees and
expenses of the Trustee and the Trust Administrator) and shall not be entitled
to reimbursement therefor except as specifically provided herein.
SECTION 3.19 Reports to the Trust Administrator; Collection
Account Statements.
Not later than fifteen days after each Distribution Date, the
Master Servicer shall forward to the Trust Administrator and the Trustee, upon
the request of the Trust Administrator or the Trustee, a statement prepared by
the Master Servicer setting forth the status of the Collection Account as of the
close of business on the last day of the calendar month relating to such
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Collection Account of
each category of deposit specified in Section 3.10(a) and each category of
withdrawal specified in Section 3.11. Such statement may be in the form of the
then current Xxxxxx Xxx Monthly Accounting Report for its Guaranteed Mortgage
Pass-Through Program with appropriate additions and changes, and shall also
include information as to the aggregate of the outstanding principal balances of
all of the Mortgage Loans as of the last day of the calendar month immediately
preceding such Distribution Date. Copies of such statement shall be provided by
the Trust Administrator to the Certificates Registrar, and the Certificate
Registrar shall provide the same to any Certificateholder and to any Person
identified to the Certificate Registrar as a prospective transferee of a
Certificate, upon the request and at the expense of the requesting party,
provided such statement is delivered by the Master Servicer to the Trust
Administrator and by the Trust Administrator to the Certificate Registrar.
SECTION 3.20 Statement as to Compliance.
The Master Servicer shall deliver to the Trustee, the Trust
Administrator, the Depositor and the Rating Agencies on or before March 15 of
each year, commencing in 2006, an Officer's Certificate, certifying that with
respect to the period ending December 31 of the prior year: (i) such Servicing
Officer has reviewed the activities of such Master Servicer during the preceding
calendar year or portion thereof and its performance under this Agreement, (ii)
to the best of such Servicing Officer's knowledge, based on such review, such
Master Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, (iii) nothing has come to
the attention of such Servicing
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Officer to lead such Servicing Officer to believe that any Servicer has failed
to perform any of its duties, responsibilities and obligations under its
Servicing Agreement in all material respects throughout such year, or, if there
has been a material default in the performance or fulfillment of any such
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof. Copies of such
statements shall be provided to any Certificateholder upon request, by the Trust
Administrator at the Master Servicer's expense.
SECTION 3.21 Independent Public Accountants' Servicing
Report.
The Master Servicer at its expense shall cause a nationally
recognized firm of independent certified public accountants to furnish a
statement to the Trustee, the Trust Administrator, the Depositor and the Rating
Agencies on or before March 15 of each year, commencing in 2006 to the effect
that, with respect to the most recently ended fiscal year, such firm has
examined certain records and documents relating to the Master Servicer's
performance of its servicing obligations under this Agreement and pooling and
servicing and trust agreements in material respects similar to this Agreement
and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
Xxxxxxx Mac or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master Servicer's activities have been conducted
in compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac
requires it to report. Copies of such statements shall be provided to any
Certificateholder upon request by the Trust Administrator at the expense of the
Master Servicer. If such report discloses exceptions that are material, the
Master Servicer shall advise the Trustee whether such exceptions have been or
are susceptible of cure, and if susceptible of cure will take prompt action to
cure.
SECTION 3.22 Access to Certain Documentation.
The Master Servicer shall provide to the Office of the
Controller of the Currency, the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to the documentation
regarding the Mortgage Loans required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Master Servicer designated by
it. In addition, access to the documentation regarding the Mortgage Loans
required by applicable laws and regulations will be provided to such
Certificateholder, the Trustee, the Trust Administrator and to any Person
identified to the Master Servicer as a prospective transferee of a Certificate,
upon reasonable request during normal business hours at the offices of the
Master Servicer designated by it at the expense of the Person requesting such
access.
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SECTION 3.23 Title, Management and Disposition of REO
Property.
(a) The deed or certificate of sale of any REO Property shall
be taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. The Master Servicer, on behalf of the Trust Fund, shall
either sell any REO Property before the close of the third taxable year
following the year the Trust Fund acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code or request from the Internal Revenue
Service, no later than 60 days before the day on which the above three-year
grace period would otherwise expire, an extension of the above three-year grace
period, unless the Master Servicer shall have delivered to the Trustee, the
Trust Administrator and the Depositor an Opinion of Counsel, addressed to the
Trustee, the Trust Administrator and the Depositor, to the effect that the
holding by the Trust Fund of such REO Property subsequent to the close of the
third taxable year after its acquisition will not result in the imposition on
the Trust Fund of taxes on "prohibited transactions" thereof, as defined in
Section 860F of the Code, or cause any Trust REMIC to fail to qualify as a REMIC
under Federal law at any time that any Certificates are outstanding. The Master
Servicer shall manage, conserve, protect and operate each REO Property for the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by any Trust REMIC of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code, or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions.
(b) The Master Servicer shall segregate and hold all funds
collected and received in connection with the operation of any REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to REO Properties an account held in trust for the Trustee
for the benefit of the Certificateholders (the "REO Account"), which shall be an
Eligible Account. The Master Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to separate ledgers for each REO
Property. The Master Servicer shall be entitled to retain or withdraw any
interest income paid on funds deposited in the REO Account.
(c) The Master Servicer shall have full power and authority,
subject only to the specific requirements and prohibitions of this Agreement, to
do any and all things in connection with any REO Property as are consistent with
the manner in which the Master Servicer manages and operates similar property
owned by the Master Servicer or any of its Affiliates, all on such terms and for
such period as the Master Servicer deems to be in the best interests of
Certificateholders. In connection therewith, the Master Servicer shall deposit,
or cause to be deposited in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than two Business Days after the Master
Servicer's receipt thereof, and shall thereafter deposit in the REO Account, in
no event more than one Business Day after the deposit of such funds into the
clearing account, all revenues received by it with respect to an REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of such REO Property including, without limitation:
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(i) all insurance premiums due and payable in respect
of such REO Property;
(ii) all real estate taxes and assessments in respect
of such REO Property that may result in the imposition of a
lien thereon; and
(iii) all costs and expenses necessary to maintain
such REO Property.
To the extent that amounts on deposit in the REO Account with
respect to an REO Property are insufficient for the purposes set forth in
clauses (i) through (iii) above with respect to such REO Property, the Master
Servicer shall advance from its own funds such amount as is necessary for such
purposes if, but only if, the Master Servicer would make such advances if the
Master Servicer owned the REO Property and if in the Master Servicer's judgment,
the payment of such amounts will be recoverable from the rental or sale of the
REO Property.
Notwithstanding the foregoing, none of the Master Servicer,
the Trust Administrator or the Trustee shall:
(i) authorize the Trust Fund to enter into, renew or
extend any New Lease with respect to any REO Property, if the
New Lease by its terms will give rise to any income that does
not constitute Rents from Real Property;
(ii) authorize any amount to be received or accrued
under any New Lease other than amounts that will constitute
Rents from Real Property;
(iii) authorize any construction on any REO Property,
other than the completion of a building or other improvement
thereon, and then only if more than ten percent of the
construction of such building or other improvement was
completed before default on the related Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of
the Code; or
(iv) authorize any Person to Directly Operate any REO
Property on any date more than 90 days after its date of
acquisition by the Trust Fund;
unless, in any such case, the Master Servicer has obtained an Opinion of
Counsel, provided to the Trust Administrator and the Trustee, to the effect that
such action will not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code at any time that
it is held by the Trust Fund, in which case the Master Servicer may take such
actions as are specified in such Opinion of Counsel.
The Master Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract
shall not be inconsistent herewith;
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(ii) any such contract shall require, or shall be
administered to require, that the Independent Contractor pay
all costs and expenses incurred in connection with the
operation and management of such REO Property, including those
listed above and remit all related revenues (net of such costs
and expenses) to the Master Servicer as soon as practicable,
but in no event later than thirty days following the receipt
thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.23(c)
relating to any such contract or to actions taken through any
such Independent Contractor shall be deemed to relieve the
Master Servicer of any of its duties and obligations to the
Trustee on behalf of the Certificateholders with respect to
the operation and management of any such REO Property; and
(iv) the Master Servicer shall be obligated with
respect thereto to the same extent as if it alone were
performing all duties and obligations in connection with the
operation and management of such REO Property.
The Master Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Master Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. The Master Servicer shall be solely liable for
all fees owed by it to any such Independent Contractor, irrespective of whether
the Master Servicer's compensation pursuant to Section 3.18 is sufficient to pay
such fees.
(d) In addition to the withdrawals permitted under Section
3.23(c), the Master Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself or any Sub-Servicer unpaid
Servicing Fees and unpaid Administration Fees in respect of the related Mortgage
Loan; and (ii) to reimburse itself or any Sub-Servicer for unreimbursed
Servicing Advances and P&I Advances made in respect of such REO Property or the
related Mortgage Loan. Any income from the related REO Property received during
any calendar months prior to a Final Recovery Determination, net of any
withdrawals made pursuant to Section 3.23(c) or this Section 3.23(d), shall be
withdrawn by the Master Servicer from each REO Account maintained by it and
remitted to the Paying Agent for deposit into the Distribution Account in
accordance with Section 3.10(d)(ii) on the Master Servicer Remittance Date
relating to a Final Recovery Determination with respect to such Mortgage Loan,
for distribution on the related Distribution Date in accordance with Section
4.01.
(e) Subject to the time constraints set forth in Section
3.23(a), and further subject to obtaining the approval of the insurer under any
related Primary Mortgage Insurance Policy (if and to the extent that such
approvals are necessary to make claims under such policies in respect of the
affected REO Property), each REO Disposition shall be carried out by the Master
Servicer at such price and upon such terms and conditions as the Master Servicer
shall deem necessary or advisable, as shall be normal and usual in its general
servicing activities for similar properties.
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(f) The proceeds from the REO Disposition, net of any amount
required by law to be remitted to the Mortgagor under the related Mortgage Loan
and net of any payment or reimbursement to the Master Servicer or any
Sub-Servicer as provided above, shall be remitted to the Paying Agent for
deposit in the Distribution Account in accordance with Section 3.10(d)(ii) on
the Master Servicer Remittance Date in the month following the receipt thereof
for distribution on the related Distribution Date in accordance with Section
4.01. Any REO Disposition shall be for cash only (unless changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(g) The Master Servicer shall file information returns with
respect to the receipt of mortgage interest received in a trade or business,
reports of foreclosures and abandonments of any Mortgaged Property and
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code, respectively. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
SECTION 3.24 Obligations of the Master Servicer in Respect of
Prepayment Interest Shortfalls.
The Master Servicer shall deliver to the Paying Agent for
deposit into the Distribution Account on or before 12:00 p.m. New York time on
the Master Servicer Remittance Date from its own funds (or from a Sub-Servicer's
own funds received by the Master Servicer in respect of Compensating Interest)
an amount equal to the lesser of (i) the aggregate of the Prepayment Interest
Shortfalls for the related Distribution Date resulting from full or partial
Principal Prepayments during the related Prepayment Period and (ii) the
applicable Compensating Interest Payment.
SECTION 3.25 Obligations of the Master Servicer in Respect of
Monthly Payments.
In the event that a shortfall in any collection on or
liability with respect to any Mortgage Loan results from or is attributable to
adjustments to Stated Principal Balances that were made by the Master Servicer
in a manner not consistent with the terms of the related Mortgage Note and this
Agreement, the Master Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Paying Agent for deposit in the Distribution
Account from its own funds the amount of any such shortfall and shall indemnify
and hold harmless the Trust Fund, the Trustee, the Trust Administrator, the
Depositor and any successor master servicer in respect of any such liability.
Such indemnities shall survive the termination or discharge of this Agreement.
If amounts paid by the Master Servicer with respect to any Mortgage Loan
pursuant to this Section 3.25 are subsequently recovered from the related
Mortgagor, the Master Servicer shall be permitted to reimburse itself for such
amounts paid by it pursuant to this Section 3.25 from such recoveries.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
(a) On each Distribution Date, the Paying Agent, in accordance
with calculations and determinations made by the Trust Administrator as
reflected in the statement to Certificateholders prepared by the Trust
Administrator pursuant to Section 4.02, shall, first, withdraw from the
Distribution Account an amount equal to the Credit Risk Oversight Advisor Fee
for such Distribution Date and shall pay such amount to the Credit Risk
Oversight Advisor (or, if the Early Termination Date under the Credit Risk
Oversight Advisor Agreement shall have occurred, shall pay such amount to the
Seller) and, second, withdraw from the Distribution Account an amount equal to
the Available Distribution Amount for such Distribution Date and shall
distribute the following amounts, in the following order of priority:
(1) the Interest Remittance Amount shall be distributed in the
following order of priority:
(i) concurrently, to the Holders of each Class of Class A
Certificates, on a pro rata basis based on the entitlement of each such Class,
the Senior Interest Distribution Amount for such Distribution Date;
(ii) sequentially, to the Holders of the Class X-0, Xxxxx X-0,
Class M-3 and Class M-4 Certificates, in that order, in an amount equal to the
Interest Distribution Amount for each such Class.
(2) the Principal Distribution Amount shall be distributed in
the following order of priority:
(A) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Principal Distribution Amount
shall be distributed in the following order of priority:
(i) to the Holders of the Class A Certificates (allocated
among the Class A Certificates in the priority described below), the
Class A Principal Distribution Amount for such Distribution Date until
the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero; and
(ii) sequentially, to the Holders of the Class X-0, Xxxxx X-0,
Class M-3 and Class M-4 Certificates, in that order, the Principal
Distribution Amount remaining after the distribution in clause (2)(A)
(i) above, until the Certificate Principal Balance of each such Class
has been reduced to zero.
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(B) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Principal
Distribution Amount shall be distributed in the following order of priority:
(i) to the Holders of the Class A Certificates (allocated
among the Class A Certificates in the priority described below), up to
an amount equal to the Class A Principal Distribution Amount, until the
aggregate Certificate Principal Balance of the Class A Certificates has
been reduced to zero;
(ii) to the Holders of the Class M-1 Certificates, up to an
amount equal to the Class M-1 Principal Distribution Amount for such
Distribution Date, until the Certificate Principal Balance of such
Class has been reduced to zero;
(iii) to the Holders of the Class M-2 Certificates, up to an
amount equal to the Class M-2 Principal Distribution Amount for such
Distribution Date, until the Certificate Principal Balance of such
Class has been reduced to zero;
(iv) to the Holders of the Class M-3 Certificates, up to an
amount equal to the Class M-3 Principal Distribution Amount for such
Distribution Date, until the Certificate Principal Balance of such
Class has been reduced to zero; and
(v) to the Holders of the Class M-4 Certificates, up to an
amount equal to the Class M-4 Principal Distribution Amount for such
Distribution Date, until the Certificate Principal Balance of such
Class has been reduced to zero.
With respect to the Class A Certificates, all principal
distributions will be distributed first, to the Class A-5 Certificates up to the
Lockout Distribution Amount for such Distribution Date and then, sequentially,
to the Class A-1 Certificates, the Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates and the Class A-5 Certificates, in that
order, until the Certificate Principal Balance of each such Class has been
reduced to zero.
(3) On each Distribution Date, the Net Monthly Excess Cashflow
shall be distributed by the Paying Agent as follows:
(i) to the Holders of the Class or Classes of Certificates
then entitled to receive distributions in respect of principal, as part
of the Principal Distribution Amount in an amount equal to the
Overcollateralization Increase Amount for the Certificates, applied to
reduce the Certificate Principal Balance of such Certificates until the
aggregate Certificate Principal Balance of such Certificates is reduced
to zero;
(ii) sequentially, to the Holders of the Class X-0, Xxxxx X-0,
Class M-3 and Class M-4 Certificates in that order, in each case, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(iii) sequentially to the Class X-0, Xxxxx X-0, Class M-3 and
Class M-4 Certificates, in that order, in each case up to the related
Allocated Realized Loss Amount related to each such Class of
Certificates for such Distribution Date;
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(iv) to the Net WAC Rate Carryover Reserve Account, the amount
by which any Net WAC Rate Carryover Amounts for such Distribution Date
exceed Cap Amount for such Distribution Date;
(v) to the Holders of the Class CE Certificates, (a) the
Interest Distribution Amount and any Overcollateralization Reduction
Amount for such Distribution Date and (b) on any Distribution Date on
which the aggregate Certificate Principal Balance of the Class A
Certificates and the Mezzanine Certificates have been reduced to zero,
any remaining amounts in reduction of the Certificate Principal Balance
of the Class CE Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and
(vi) to the Holders of the Class R Certificates, any remaining
amounts; provided that if such Distribution Date is the Distribution
Date immediately following the expiration of the latest Prepayment
Charge term on a Mortgage Loan as identified on the Mortgage Loan
Schedule or any Distribution Date thereafter, then any such remaining
amounts will be distributed first, to the Holders of the Class P
Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and second, to the Holders of the Class R
Certificates.
On each Distribution Date, after making the distributions of
the Available Distribution Amount as set forth above, the Paying Agent will
withdraw from the Net WAC Rate Carryover Reserve Account, to the extent of
amounts remaining on deposit therein, the amount of any Net WAC Rate Carryover
Amount for such Distribution Date and distribute such amount in the following
order of priority:
(A) to the Class A-1 Certificates, the related Cap Amount, up
to a maximum amount equal to the related Net WAC Rate Carryover Amount
for such Distribution Date
(B) concurrently, to each Class of Class A Certificates, the
related Net WAC Rate Carryover Amount for such Distribution Date (A)
above or in the case of the Class A-1 Certificate, the related Net WAC
Rate Carryover Amount remaining undistributed pursuant to clause (A)
above, on a pro rata basis based on such respective Net WAC Rate
Carryover Amounts due pursuant to this Clause (B); and
(C) sequentially, to the Class X-0, Xxxxx X-0, Class M-3 and
Class M-4 Certificates, in that order, the related Net WAC Rate
Carryover Amount.
(4) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC I to REMIC II on
account of the REMIC I Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R-I Interest, as the case
may be:
(i) first, to Holders of REMIC Regular Interest I-LTAA, REMIC
I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I
Regular Interest I-LTA5, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest I-LTM4 and REMIC I Regular Interest I-LTZZ, in an
amount
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equal to (A) the Uncertificated Interest for such Distribution Date,
plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Interest in
respect of REMIC I Regular Interest I-LTZZ shall be reduced when the
sum of the REMIC I Overcollateralized Amount is less than the REMIC I
Required Overcollateralized Amount, by the lesser of (x) the amount of
such difference and (y) the Maximum I-LTZZ Uncertificated Interest
Deferral Amount and such amounts will be payable to the Holders of
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC
I Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I
Regular Interest I-LTA5, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, and REMIC I
Regular Interest I-LTM4, in the same proportion as the
Overcollateralization Increase Amount is allocated to the Corresponding
Certificates and the Uncertificated Balance of REMIC I Regular Interest
I-LTZZ shall be increased by such amount;
(ii) second, to the Holders of REMIC I Regular Interests, in
an amount equal to the remainder of the Available Distribution Amount
for such Distribution Date after the distributions made pursuant to
clause (i) above, allocated as follows:
(a) 98.00% of such remainder (less the amount payable
in clause (d) below) to the Holders of REMIC I Regular
Interest I-LTAA, until the Uncertificated Balance of such
REMIC I Regular Interest is reduced to zero;
(b) 2.00% of such remainder (less the amount payable
in clause (d) below) first, to the Holders of REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4,
REMIC I Regular Interest I-LTA5, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3 and REMIC I Regular Interest I-LTM4,, and in
the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Balances
of such REMIC I Regular Interests are reduced to zero and
second, to the Holders of REMIC I Regular Interest I-LTZZ,
until the Uncertificated Balance of such REMIC I Regular
Interest is reduced to zero; then
(c) to the Holders of REMIC I Regular Interest I-LTP,
on the Distribution Date immediately following the expiration
of the latest Prepayment Charge as identified on the
Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause; and
(i) (d) any remaining amount to the Holders of the Class R
Certificates (as Holder of the Class R-I Interest).
(b) On each Distribution Date, the Paying Agent shall withdraw
any amounts then on deposit in the Distribution Account that represent
Prepayment Charges collected by the Master Servicer or any Sub-Servicer in
connection with the Principal Prepayment of any of the Mortgage Loans or any
Servicer Prepayment Charge Payment Amount and shall distribute such amounts to
the Holders of the Class P Certificates. Such distributions shall not be applied
to reduce the Certificate Principal Balance of the Class P Certificates.
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Following the foregoing distributions, an amount equal to the
amount of Subsequent Recoveries shall be applied to increase the Certificate
Principal Balance of the Class of Certificates with the Highest Priority up to
the extent of such Realized Losses previously allocated to that Class of
Certificates pursuant to Section 4.04. An amount equal to the amount of any
remaining Subsequent Recoveries shall be applied to increase the Certificate
Principal Balance of the Class of Certificates with the next Highest Priority,
up to the amount of such Realized Losses previously allocated to that Class of
Certificates pursuant to Section 4.04. Holders of such Certificates will not be
entitled to any distribution in respect of interest on the amount of such
increases for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(c) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date will be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section 4.01(e) or
Section 9.01 respecting the final distribution on such Class), based on the
aggregate Percentage Interest represented by their respective Certificates, and
shall be made by wire transfer of immediately available funds to the account of
any such Holder at a bank or other entity having appropriate facilities
therefor, if such Holder shall have so notified the Certificate Registrar in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and with respect to any Class of Certificates other
than the Residual Certificates is the registered owner of Certificates having an
initial aggregate Certificate Principal Balance that is in excess of the lesser
of (i) $5,000,000 or (ii) two-thirds of the initial Certificate Principal
Balance of such Class of Certificates, or otherwise by check mailed by first
class mail to the address of such Holder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the Corporate Trust Office
of the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Trust
Administrator, the Paying Agent, the Certificate Registrar, the Authenticating
Agent, the Depositor or the Master Servicer shall have any responsibility
therefor except as otherwise provided by this Agreement or applicable law.
(d) The rights of the Certificateholders to receive
distributions in respect of the Certificates, and all interests of the
Certificateholders in such distributions, shall be as set forth in this
Agreement. None of the Holders of any Class of Certificates, the Depositor, the
Trustee, the Trust Administrator, the Authenticating Agent, the Paying Agent,
the Certificate Registrar or the Master Servicer shall in any way be responsible
or liable to the Holders of any
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other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(e) Except as otherwise provided in Section 9.01, whenever the
Trust Administrator expects that the final distribution with respect to any
Class of Certificates will be made on the next Distribution Date, the Trust
Administrator shall so timely advise the Paying Agent and the Paying Agent
shall, no later than five days after the latest related Determination Date, mail
on such date to each Holder of such Class of Certificates a notice to the effect
that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date, but only upon presentation and surrender of such Certificates at
the office of the Certificate Registrar therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the related Interest Accrual Period.
(iii) Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the
failure of such Holder or Holders to tender their Certificates shall,
on such date, be set aside and held in trust by the Paying Agent and
credited to the account of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant
to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice,
the Paying Agent shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect
thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the
Paying Agent shall, directly or through an agent, mail a final notice
to remaining non-tendering Certificateholders concerning surrender of
their Certificates and shall continue to hold any remaining funds for
the benefit of non-tendering Certificateholders. The costs and expenses
of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in such
trust fund. If within one year after the final notice any such
Certificates shall not have been surrendered for cancellation, the
Paying Agent shall pay to Citigroup Global Markets Inc. all such
amounts, and all rights of non-tendering Certificateholders in or to
such amounts shall thereupon cease. No interest shall accrue or be
payable to any Certificateholder on any amount held in trust by the
Paying Agent as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance
with this Section 4.01(e).
(f) Notwithstanding anything to the contrary herein, (i) in no
event shall the Certificate Principal Balance of a Class A Certificate or a
Mezzanine Certificate be reduced more than once in respect of any particular
amount allocated to such Certificate in respect of Realized Losses pursuant to
Section 4.04 and (ii) in no event shall the Uncertificated Balance of a REMIC
Regular Interest be reduced more than once in respect of any particular amount
both (a) allocated to such REMIC Regular Interest in respect of Realized Losses
pursuant to Section 4.04 and (b) distributed on such REMIC
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Regular Interest in reduction of the Uncertificated Balance thereof pursuant to
this Section 4.01.
SECTION 4.02 Statements to Certificateholders.
On each Distribution Date, the Trust Administrator shall
prepare and make available to the Paying Agent, and the Paying Agent shall make
available to each Holder of the Regular Certificates, a statement as to the
distributions made on such Distribution Date setting forth:
(i) the amount of the distribution made on such
Distribution Date to the Holders of Certificates of each such
Class allocable to principal and the amount of the
distribution made on such Distribution Date to the Holders of
the Class P Certificates allocable to Prepayment Charges;
(ii) the amount of the distribution made on such
Distribution Date to the Holders of Certificates of each such
Class allocable to interest;
(iii) the aggregate amount of servicing compensation
received by the Master Servicer during the related Due Period
and such other customary information as the Trust
Administrator deems necessary or desirable, or which a
Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of P&I Advances for such
Distribution Date;
(v) the aggregate Stated Principal Balance of the
Mortgage Loans and any REO Properties at the close of business
on such Distribution Date;
(vi) the number, aggregate principal balance,
weighted average remaining term to maturity and weighted
average Mortgage Rate of the Mortgage Loans as of the related
Due Date;
(vii) the number and aggregate unpaid principal
balance of Mortgage Loans that are (a) delinquent 30 to 59
days, (b) delinquent 60 to 89 days, (c) delinquent 90 or more
days in each case, as of the last day of the preceding
calendar month, (d) as to which foreclosure proceedings have
been commenced and (e) with respect to which the related
Mortgagor has filed for protection under applicable bankruptcy
laws, with respect to whom bankruptcy proceedings are pending
or with respect to whom bankruptcy protection is in force;
(viii) with respect to any Mortgage Loan that became
an REO Property during the preceding calendar month, the loan
number of such Mortgage Loan, the unpaid principal balance and
the Stated Principal Balance of such Mortgage Loan as of the
date it became an REO Property;
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(ix) the book value and the Stated Principal Balance
of any REO Property as of the close of business on the last
Business Day of the calendar month preceding the Distribution
Date;
(x) the aggregate amount of Principal Prepayments
made during the related Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred
during the related Prepayment Period (or, in the case of
Bankruptcy Losses allocable to interest, during the related
Due Period), separately identifying whether such Realized
Losses constituted Bankruptcy Losses;
(xii) the aggregate amount of Extraordinary Trust
Fund Expenses withdrawn from the Collection Account or the
Distribution Account for such Distribution Date;
(xiii) the aggregate Certificate Principal Balance of
each such Class of Certificates, after giving effect to the
distributions, and allocations of Realized Losses and
Extraordinary Trust Fund Expenses, made on such Distribution
Date, separately identifying any reduction thereof due to
allocations of Realized Losses and Extraordinary Trust Fund
Expenses;
(xiv) the Certificate Factor for each such Class of
Certificates applicable to such Distribution Date;
(xv) the Interest Distribution Amount in respect of
each such Class of Certificates for such Distribution Date
(separately identifying any reductions in the case of
Subordinate Certificates resulting from the allocation of
Realized Losses allocable to interest and Extraordinary Trust
Fund Expenses on such Distribution Date) and the respective
portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such
Distribution Date;
(xvi) the aggregate amount of any Prepayment Interest
Shortfalls for such Distribution Date, to the extent not
covered by payments by the Master Servicer pursuant to Section
3.24;
(xvii) the aggregate amount of Relief Act Interest
Shortfalls for such Distribution Date;
(xviii) reserved;
(xix) with respect to any Mortgage Loan as to which
foreclosure proceedings have been concluded, the loan number
and unpaid principal balance of such Mortgage Loan as of the
date of such conclusion of foreclosure proceedings;
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(xx) with respect to Mortgage Loans as to which a
Final Liquidation has occurred, the number of Mortgage Loans,
the unpaid principal balance of such Mortgage Loans as of the
date of such Final Liquidation and the amount of proceeds
(including Liquidation Proceeds and Insurance Proceeds)
collected in respect of such Mortgage Loans;
(xxi) any Allocated Realized Loss Amount with respect
to each Class of Certificates for such Distribution Date;
(xxii) the amounts deposited into the Net WAC Rate
Carryover Reserve Account for such Distribution Date, the
amounts withdrawn from such account and distributed to each
Class of Certificates, and the amounts remaining on deposit in
such account after all deposits into and withdrawals from such
account on such Distribution Date;
(xxiii) the Net WAC Rate Carryover Amounts for each
Class of Certificates, if any, for such Distribution Date and
the amounts remaining unpaid after reimbursements therefor on
such Distribution Date;
(xxiv) the Cap Amount for such Distribution Date.
In the case of information furnished pursuant to subclauses
(i) through (iii) above, the amounts shall be expressed as a dollar amount per
Single Certificate of the relevant Class.
Within a reasonable period of time after the end of each
calendar year, the Paying Agent shall forward to each Person (with a copy to the
Trust Administrator and the Trustee) who at any time during the calendar year
was a Holder of a Regular Certificate a statement containing the information set
forth in subclauses (i) through (iii) above, aggregated for such calendar year
or applicable portion thereof during which such person was a Certificateholder.
Such obligation of the Paying Agent shall be deemed to have been satisfied to
the extent that substantially comparable information shall be prepared by the
Trust Administrator and provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make
available to the Depositor, each Holder of a Residual Certificate, the Trust
Administrator and the Master Servicer, a copy of the reports forwarded to the
Regular Certificateholders on such Distribution Date and a statement setting
forth the amounts, if any, actually distributed with respect to the Residual
Certificates, respectively, on such Distribution Date.
Within a reasonable period of time after the end of each
calendar year, the Paying Agent shall forward to each Person (with a copy to the
Trust Administrator and the Trustee) who at any time during the calendar year
was a Holder of a Residual Certificate a statement setting forth the amount, if
any, actually distributed with respect to the Residual Certificates, as
appropriate, aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Paying
Agent shall be deemed to have been satisfied to the extent that substantially
comparable information shall be prepared by the
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Trust Administrator and furnished by the Paying Agent to such Holders pursuant
to the rules and regulations of the Code as are in force from time to time.
Upon request, the Paying Agent shall forward to each
Certificateholder, during the term of this Agreement, such periodic, special, or
other reports or information, whether or not provided for herein, as shall be
reasonable with respect to the Certificateholder, or otherwise with respect to
the purposes of this Agreement, all such reports or information to be provided
at the expense of the Certificateholder in accordance with such reasonable and
explicit instructions and directions as the Certificateholder may provide. For
purposes of this Section 4.02, the Paying Agent's duties are limited to the
extent that the Paying Agent receives timely reports as required from the Trust
Administrator and the Master Servicer and that the Trust Administrator receives
timely reports as required from the Master Servicer.
On each Distribution Date, the Trust Administrator shall
provide Bloomberg Financial Markets, L.P. ("Bloomberg") (1) CUSIP level factors
for each class of Certificates as of such Distribution Date and (2) the number
and aggregate unpaid principal balance of Mortgage Loans that are (a) delinquent
30 to 59 days, (b) delinquent 60 to 89 days, (c) delinquent 90 or more days in
each case, as of the last day of the preceding calendar month, (d) as to which
foreclosure proceedings have been commenced and (e) with respect to which the
related Mortgagor has filed for protection under applicable bankruptcy laws,
with respect to whom bankruptcy proceedings are pending or with respect to whom
bankruptcy protection is in force, in each case using a format and media
mutually acceptable to the Trust Administrator and Bloomberg.
SECTION 4.03 Remittance Reports; P&I Advances.
(a) On the second Business Day prior to the related
Distribution Date, the Master Servicer shall deliver to the Trust Administrator,
the Paying Agent and the Trustee by telecopy (or by such other means as the
Master Servicer, the Paying Agent and the Trust Administrator and the Trustee
may agree from time to time) a Remittance Report with respect to the related
Distribution Date. Such Remittance Report will include (i) the amount of P&I
Advances to be made by the Master Servicer in respect of the related
Distribution Date, the aggregate amount of P&I Advances outstanding after giving
effect to such P&I Advances, and the aggregate amount of Nonrecoverable P&I
Advances in respect of such Distribution Date and (ii) such other information
with respect to the Mortgage Loans as the Trust Administrator or the Paying
Agent may reasonably require to perform the calculations necessary for the
Paying Agent to make the distributions contemplated by Section 4.01 and for the
Trust Administrator to prepare the statements to Certificateholders contemplated
by Section 4.02; provided, however, that if the Master Servicer is not the Trust
Administrator, the Master Servicer will forward to the successor Trust
Administrator the information set forth in clause (i) above on the next Business
Day following the related Determination Date and the information set forth in
clause (ii) above on the fifth Business Day following the last day of the
related calendar month. Neither the Trustee, the Paying Agent nor the Trust
Administrator shall be responsible to recompute, recalculate or verify any
information provided to it by the Master Servicer.
(b) The amount of P&I Advances to be made by the Master
Servicer for any Distribution Date shall equal, subject to Section 4.03(d), the
sum of (i) the aggregate amount of
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Monthly Payments (with each interest portion thereof net of the related
Servicing Fee and the related Administration Fee), due on the related Due Date
in respect of the Mortgage Loans, which Monthly Payments were delinquent as of
the close of business on the related Determination Date and (ii) with respect to
each REO Property, which REO Property was acquired during or prior to the
related Prepayment Period and as to which such REO Property an REO Disposition
did not occur during the related Prepayment Period, an amount equal to the
Monthly Payments (with each interest portion thereof net of the related
Servicing Fee and the related Administration Fee) that would have been due on
the related Due Date in respect of the related Mortgage Loans.
On or before 12:00 p.m. New York time on the Master Servicer
Remittance Date, the Master Servicer shall remit in immediately available funds
to the Paying Agent for deposit in the Distribution Account an amount equal to
the aggregate amount of P&I Advances, if any, to be made in respect of the
Mortgage Loans and REO Properties for the related Distribution Date either (i)
from its own funds or, if received from a Sub-Servicer, from funds remitted by a
Sub-Servicer in payment of required P&I Advances or (ii) from the Collection
Account, to the extent of funds held therein for future distribution (in which
case, it will cause to be made an appropriate entry in the records of Collection
Account that amounts held for future distribution have been, as permitted by
this Section 4.03, used by the Master Servicer in discharge of any such P&I
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made by the Master Servicer with respect to
the Mortgage Loans and REO Properties. Any amounts held for future distribution
and so used shall be appropriately reflected in the Master Servicer's records
and replaced by the Master Servicer by deposit in the Collection Account on or
before any future Master Servicer Remittance Date to the extent that the
Available Distribution Amount for the related Distribution Date (determined
without regard to P&I Advances to be made on the Master Servicer Remittance
Date) shall be less than the total amount that would be distributed to the
Classes of Certificateholders pursuant to Section 4.01 on such Distribution Date
if such amounts held for future distributions had not been so used to make P&I
Advances. The Trust Administrator will provide notice to the Master Servicer by
telecopy by the close of business on the Master Servicer Remittance Date in the
event that the amount remitted by the Master Servicer to the Trust Administrator
on such Master Servicer Remittance Date is less than the P&I Advances required
to be made by the Master Servicer for the related Distribution Date.
(c) The obligation of the Master Servicer to make such P&I
Advances is mandatory, notwithstanding any other provision of this Agreement but
subject to (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from REMIC I pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder by the Master Servicer if such
P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. The
determination by the Master Servicer that it has made a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officers' Certificate of
the Master Servicer delivered to the Depositor, the Trust Administrator, the
Paying Agent and the Trustee.
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(e) If the Master Servicer shall fail to make any P&I Advance
on any Master Servicer Remittance Date required to be made from its own funds
pursuant to this Section 4.03, then the Paying Agent, by not later than 1:00
p.m. on the related Distribution Date, shall make such P&I advance from its own
funds by depositing the amount of such advance into the Distribution Account,
and the Trust Administrator and the Paying Agent shall include the amount so
advanced by the Paying Agent in the Available Distribution Amount distributed on
such Distribution Date.
SECTION 4.04 Allocation of Extraordinary Trust Fund Expenses
and Realized Losses.
(a) Prior to each Distribution Date, the Master Servicer shall
determine as to each Mortgage Loan and REO Property: (i) the total amount of
Realized Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Prepayment Period; (ii) whether and the
extent to which such Realized Losses constituted Bankruptcy Losses; and (iii)
the respective portions of such Realized Losses allocable to interest and
allocable to principal. Prior to each Distribution Date, the Master Servicer
shall also determine as to each Mortgage Loan: (A) the total amount of Realized
Losses, if any, incurred in connection with any Deficient Valuations made during
the related Prepayment Period; and (B) the total amount of Realized Losses, if
any, incurred in connection with Debt Service Reductions in respect of Monthly
Payments due during the related Due Period. The information described in the two
preceding sentences that is to be supplied by the Master Servicer shall be
evidenced by an Officers' Certificate delivered to the Trust Administrator, the
Paying Agent and the Trustee by the Master Servicer prior to the Determination
Date immediately following the end of (x) in the case of Bankruptcy Losses
allocable to interest, the Due Period during which any such Realized Loss was
incurred, and (y) in the case of all other Realized Losses, the Prepayment
Period during which any such Realized Loss was incurred.
(b) All Realized Losses on the Mortgage Loans shall be
allocated by the Paying Agent on each Distribution Date as follows: first, to
the Interest Distribution Amount for the Class CE Certificates for the related
Interest Accrual Period; second, to the Class CE Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; third, to the
Class M-4 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero, fourth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero, fifth, to the Class M-2
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; and sixth, to the Class M-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero.
All Realized Losses to be allocated to the Certificate
Principal Balances of all Classes on any Distribution Date shall be so allocated
after the actual distributions to be made on such date as provided above. All
references above to the Certificate Principal Balance of any Class of
Certificates shall be to the Certificate Principal Balance of such Class
immediately prior to the relevant Distribution Date, before reduction thereof by
any Realized Losses, in each case to be allocated to such Class of Certificates,
on such Distribution Date.
Any allocation of Realized Losses to a Mezzanine Certificate
on any Distribution Date shall be made by reducing the Certificate Principal
Balance thereof by the amount so
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allocated and any allocation of Realized Losses to a Class CE Certificates shall
be made by reducing the amount otherwise payable in respect thereof pursuant to
Section 4.01(a)(3). No allocations of any Realized Losses shall be made to the
Certificate Principal Balances of the Class A Certificates or the Class P
Certificates.
All Realized Losses and all other losses allocated to a Class
of Certificates hereunder will be allocated among the Certificates of such Class
in proportion to the Percentage Interests evidenced thereby.
All Realized Losses on the Mortgage Loans shall be allocated
by the Paying Agent on each Distribution Date to the following REMIC I Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Interest payable to the REMIC I Regular Interest I-LTA1 and REMIC I Regular
Interest I-LTZZ up to an aggregate amount equal to the REMIC I Interest Loss
Allocation Amount, 98% and 2%, respectively; second, to the Uncertificated
Balances of the REMIC I Regular Interest I-LTAA and REMIC I Regular Interest
I-LTZZ up to an aggregate amount equal to the REMIC I Principal Loss Allocation
Amount, 98% and 2%, respectively; third, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM4 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM10 has been reduced to zero; fourth, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM4 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM4 has been reduced to zero; fifth, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM3 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM2 has been reduced to zero; sixth, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM1 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM1 has been reduced to zero.
SECTION 4.05 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Paying Agent does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Paying Agent shall indicate the amount withheld to
such Certificateholders.
SECTION 4.06 Net WAC Rate Carryover Reserve Account.
(a) No later than the Closing Date, the Paying Agent shall
establish and maintain a separate, segregated trust account titled, "Net WAC
Rate Carryover Reserve Account, Citibank, N.A., as Paying Agent, in trust for
the registered holders of Citigroup Mortgage Loan Trust, Asset-Backed
Pass-Through Certificates, Series 2005-WF1."
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(b) On each Distribution Date, the Paying Agent has been
directed by the Class CE Certificateholders to, and therefore shall, deposit
into the Net WAC Rate Carryover Reserve Account the sum of (A) the Cap Amount
for such Distribution Date and (B) the amount by which any Net WAC Rate
Carryover Amounts for such Distribution Date exceed the amounts received by the
Paying Agent under the Cap Contract, rather than distributing such amounts to
the Class CE Certificateholders. On each such Distribution Date, the Paying
Agent shall hold all such amounts for the benefit of the Holders of the Class A
and Mezzanine Certificates, and shall distribute the aggregate Net WAC Rate
Carryover Amount, if any, for such Distribution Date from the Net WAC Rate
Carryover Reserve Account to the Holders of the Class A and Mezzanine
Certificates in the amounts and priorities set forth in Section 4.01(g).
On each Distribution Date, after the payment of any Net WAC
Rate Carryover Amounts on the Class A Certificates and Mezzanine Certificates,
any amounts remaining in the Net WAC Rate Carryover Reserve Account
(representing payments received by the Paying Agent under the Cap Contract),
shall be payable to the Paying Agent as additional compensation to it, subject
to the immediately following paragraph.
(c) For federal and state income tax purposes, the Class CE
Certificateholders shall be deemed to be the owners of the Net WAC Rate
Carryover Reserve Account and all amounts deposited into the Net WAC Rate
Carryover Reserve Account (other than the initial deposit therein of $1,000)
shall be treated as amounts distributed by REMIC II to the Holders of the Class
CE Certificates. Upon the termination of the Trust Fund, or the payment in full
of the Class A and Mezzanine Certificates, all amounts remaining on deposit in
the Net WAC Rate Carryover Reserve Account shall be released by the Trust Fund
and distributed to the Class CE Certificateholders or their designees. The Net
WAC Rate Carryover Reserve Account shall be part of the Trust Fund but not part
of any Trust REMIC and any payments to the Holders of the Class A or Mezzanine
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a "regular interest" in a REMIC within the meaning of Code Section
860(G)(a)(1).
(d) By accepting a Class CE Certificate, each Class CE
Certificateholder hereby agrees to direct the Paying Agent, and the Paying Agent
is hereby is directed, to deposit into the Net WAC Rate Carryover Reserve
Account the amounts described above on each Distribution Date rather than
distributing such amounts to the Class CE Certificateholders. By accepting a
Class CE Certificate, each Class CE Certificateholder further agrees that such
direction is given for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by such acceptance.
(e) At the direction of the Holders of a majority in
Percentage Interest in the Class CE Certificates, the Paying Agent shall direct
any depository institution maintaining the Net WAC Rate Carryover Reserve
Account to invest the funds in such account in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the Paying Agent or an Affiliate manages or advises such
investment, and (ii) no later than the date on which such funds are required to
be withdrawn from such account pursuant to this Agreement, if the Paying Agent
or an Affiliate manages or advises such investment. If no
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investment direction of the Holders of a majority in Percentage Interest in the
Class CE Certificates with respect to the Net WAC Rate Carryover Reserve Account
is received by the Paying Agent, the Paying Agent shall invest the funds in any
Permitted Investment that meets the requirements of clause (vi) thereof.
Interest earned on such investment shall be deposited into the Net WAC Rate
Carryover Reserve Account.
(f) For federal tax return and information reporting, the
right of the Holders of the Class A and Mezzanine Certificates to receive
payments from the Net WAC Rate Carryover Reserve Account in respect of any Net
Wac Rate Carryover Amount shall be assigned a value of $15,000 (with respect to
the Class A-1 Certificates) and zero (with respect to each other Class of Class
A Certificates and each Class of Mezzanine Certificates).
SECTION 4.07 Commission Reporting.
The Depositor shall prepare or cause to be prepared the initial current
report on Form 8-K. Within 15 days after each Distribution Date, the Trust
Administrator shall, in accordance with industry standards, file with the
Commission via the Electronic Data Gathering and Retrieval System ("XXXXX"), a
Form 8-K with a copy of the statement to be furnished to the Certificateholders
for such Distribution Date as an exhibit thereto. Prior to January 30, 2006, the
Trust Administrator shall, in accordance with industry standards, file a Form 15
Suspension Notice with respect to the Trust Fund, if applicable. Prior to (i)
March 31, 2006 and (ii) unless and until a Form 15 Suspension Notice shall have
been filed, March 31st of each year thereafter, the Trust Administrator, in its
capacity as trust administrator hereunder, shall execute and file a Form 10-K,
in substance conforming to industry standards, with respect to the Trust. Such
Form 10-K shall include the Master Servicer Certification, the annual
independent accountant's servicing report and annual statement of compliance to
be delivered by the Master Servicer pursuant to Sections 3.20 and 3.21. The
Depositor hereby grants to the Trust Administrator a limited power of attorney
to execute and file the Forms 8-K and the Form 10-K on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt by
the Trust Administrator from the Depositor of written termination of such power
of attorney and (ii) the termination of the Trust Fund. The Depositor agrees to
promptly furnish to the Trust Administrator and the Master Servicer, from time
to time upon request, such further information, reports and financial statements
within its control related to this Agreement or the Mortgage Loans as the Trust
Administrator or the Master Servicer reasonably deems appropriate to prepare and
file all necessary reports with the Commission. Neither the Trust Administrator
nor the Master Servicer shall have any responsibility to file any items other
than those specified in this Section 4.07; provided, however, the Trust
Administrator and the Master Servicer will cooperate with the Depositor in
connection with any additional filings with respect to the Trust Fund as the
Depositor deems necessary under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Fees and expenses incurred by the Trust Administrator or
the Master Servicer in connection with this Section 4.07 shall not be
reimbursable from the Trust Fund.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates in the aggregate will represent the
entire beneficial ownership interest in the Mortgage Loans and all other assets
included in the Trust Fund. At the Closing Date, the aggregate Certificate
Principal Balance of the Certificates will equal the aggregate Stated Principal
Balance of the Mortgage Loans.
The Certificates will be substantially in the forms annexed
hereto as Exhibits A-1 through A-5. The Certificates of each Class will be
issuable in registered form only, in denominations of authorized Percentage
Interests as described in the definition thereof. Each Certificate will share
ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed by the
Paying Agent and delivered by the Authenticating Agent to or upon the order of
the Depositor. The Certificates shall be executed and attested by manual or
facsimile signature on behalf of the Paying Agent by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Paying Agent shall bind the Paying Agent,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the execution, authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
shall be conclusive evidence, and the only evidence, that such Certificate has
been duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication.
(b) The Book-Entry Certificates shall initially be issued as
one or more Certificates held by Book-Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration of
such Certificates may not be transferred by the Certificate Registrar except to
another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book- Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Paying Agent is hereby initially appointed
as the Book-Entry Custodian
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and hereby agrees to act as such in accordance herewith and in accordance with
the agreement that it has with the Depository authorizing it to act as such. The
Book-Entry Custodian may, and if it is no longer qualified to act as such, the
Book-Entry Custodian shall, appoint, by a written instrument delivered to the
Depositor, the Master Servicer and the Trust Administrator and any other
transfer agent (including the Depository or any successor Depository) to act as
Book-Entry Custodian under such conditions as the predecessor Book-Entry
Custodian and the Depository or any successor Depository may prescribe, provided
that the predecessor Book-Entry Custodian shall not be relieved of any of its
duties or responsibilities by reason of any such appointment of other than the
Depository. If the Paying Agent resigns or is removed in accordance with the
terms hereof, the successor Paying Agent or, if it so elects, the Depository
shall immediately succeed to its predecessor's duties as Book-Entry Custodian.
The Depositor shall have the right to inspect, and to obtain copies of, any
Certificates held as Book-Entry Certificates by the Book-Entry Custodian.
The Trustee, the Trust Administrator, the Master Servicer, the
Paying Agent, the Authenticating Agent, the Certificate Registrar and the
Depositor may for all purposes (including the making of payments due on the
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Paying Agent may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trust Administrator, the
Paying Agent and the Certificate Registrar in writing that the Depository is no
longer willing or able to properly discharge its responsibilities as Depository,
and (B) the Depositor is unable to locate a qualified successor or (ii) after
the occurrence of a Master Servicer Event of Default, Certificate Owners
representing in the aggregate not less than 51% of the Ownership Interests of
the Book-Entry Certificates advise the Trust Administrator, the Paying Agent and
the Certificate Registrar through the Depository, in writing, that the
continuation of a book-entry system through the Depository is no longer in the
best interests of the Certificate Owners, the Certificate Registrar shall notify
all Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Certificate Registrar of the Book-
Entry Certificates by the Book-Entry Custodian or the Depository, as applicable,
accompanied by registration instructions from the Depository for registration of
transfer, the Paying Agent shall issue the Definitive Certificates. Such
Definitive Certificates will be issued in minimum denominations of $100,000,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $100,000 immediately prior to the issuance of
a Definitive Certificate shall be issued in a minimum denomination equal to the
amount represented by such Book-Entry Certificate. None of the Depositor, the
Master Servicer, the Trust Administrator, the Authenticating Agent, the Paying
Agent, the Certificate Registrar nor the Trustee shall be liable for any delay
in the
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delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Certificate Registrar and the Paying Agent, to the extent applicable with
respect to such Definitive Certificates, and the Certificate Registrar and the
Paying Agent shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
SECTION 5.02 Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall cause to be kept at one of
the offices or agencies to be appointed by the Trust Administrator in accordance
with the provisions of Section 8.12 a Certificate Register for the Certificates
in which, subject to such reasonable regulations as it may prescribe, the Trust
Administrator shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided.
(b) No transfer of any Private Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "1933 Act"), and effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of a Private Certificate is to be made without
registration or qualification (other than in connection with (i) the initial
transfer of any such Certificate by the Depositor to an Affiliate of the
Depositor or, in the case of the Residual Certificates, the first transfer by an
Affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or
Residual Certificate to the issuer under the Indenture or the indenture trustee
or indenture trustee administrator under the Indenture or (iii) a transfer of
any such Class C, Class P or Residual Certificate from the issuer under the
Indenture or the indenture trustee or indenture trustee administrator under the
Indenture to the Depositor or an Affiliate of the Depositor), the Trustee shall
require receipt of: (i) if such transfer is purportedly being made in reliance
upon Rule 144A under the 1933 Act, written certifications from the
Certificateholder desiring to effect the transfer and from such
Certificateholder's prospective transferee, substantially in the forms attached
hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
(which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator, the Certificate Registrar, the
Authenticating Agent , the Paying Agent, the Master Servicer in its capacity as
such or any Sub-Servicer), together with copies of the written certification(s)
of the Certificateholder desiring to effect the transfer and/or such
Certificateholder's prospective transferee upon which such Opinion of Counsel is
based, if any. None of the Depositor or the Trustee is obligated to register or
qualify any such Certificates under the 1933 Act or any other securities laws or
to take any action not otherwise required under this Agreement to permit the
transfer of such Certificates without registration or qualification. Any
Certificateholder desiring to effect the transfer of any such Certificate shall,
and does hereby agree to, indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Notwithstanding the foregoing, in the event of any such
transfer of any Ownership Interest in any Private Certificate that is a
Book-Entry Certificate, except with respect to the initial transfer of any such
Ownership Interest by the Depositor, such transfer shall be
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required to be made in reliance upon Rule 144A under the 1933 Act, and the
transferee will be deemed to have made each of the transferee representations
and warranties set forth Exhibit F-1 hereto in respect of such interest as if it
was evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Book-Entry Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
Notwithstanding the foregoing, no certification or Opinion of
Counsel described in this Section 5.02(b) will be required in connection with
the transfer, on the Closing Date, of any Residual Certificate by the Depositor
to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
No transfer of a Private Certificate or any interest therein
shall be made to any Plan subject to ERISA or Section 4975 of the Code, any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring such Certificates with "Plan Assets" of a Plan within the meaning of
the Department of Labor regulation promulgated at 29 X.X.X.xx. 2510.3-101 ("Plan
Assets"), as certified by such transferee in the form of Exhibit G, unless, in
the case of a Class CE Certificate, a Class P Certificate or Residual
Certificate, the Certificate Registrar is provided with an Opinion of Counsel on
which the Certificate Registrar, the Depositor, the Trustee, the Trust
Administrator, the Paying Agent, the Authenticating Agent and the Master
Servicer may rely, to the effect that the purchase of such Certificates is
permissible under ERISA and the Code, will not constitute or result in any
non-exempt prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Depositor, the Master Servicer, the Trustee, the Trust
Administrator, the Paying Agent, the Authenticating Agent, the Certificae
Registrar or the Trust Fund to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator, the Paying Agent, the Authenticating Agent, the Certificate
Registrar or the Trust Fund. Neither a certification nor an Opinion of Counsel
will be required in connection with (i) the initial transfer of any such
Certificate by the Depositor to an Affiliate of the Depositor or, in the case of
the Residual Certificates, the first transfer by an Affiliate of the Depositor,
(ii) the transfer of any such Class C, Class P or Residual Certificate to the
issuer under the Indenture or the indenture trustee under the Indenture or (iii)
a transfer of any such Class CE, Class P or Residual Certificate from the issuer
under the Indenture or the indenture trustee under the Indenture to the
Depositor or an Affiliate of the Depositor (in which case, the Depositor or any
Affiliate thereof shall have deemed to have represented that such Affiliate is
not a Plan or a Person investing Plan Assets) and the Certificate Registrar
shall be entitled to conclusively rely upon a representation (which, upon the
request of the Certificate Registrar, shall be a written representation) from
the Depositor of the status of such transferee as an affiliate of the Depositor.
Each beneficial owner of a Mezzanine Certificate or any
interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or interest therein, that either (i)
it is not a Plan investor, (ii) it has acquired and is holding such Mezzanine
Certificate in reliance on the Underwriters' Exemption, and that it understands
that there are certain conditions to the availability of the Underwriters'
Exemption, including that such
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Mezzanine Certificate must be rated, at the time of purchase, not lower than
"BBB-" (or its equivalent) by S&P, Xxxxx'x or Fitch and the Certificates are so
rated or (iii) (1) it is an insurance company, (2) the source of funds used to
acquire or hold the Certificate or interest therein is an "insurance company
general account," as such term is defined in PTCE 95-60, and (3) the conditions
in Sections I and III of PTCE 95-60 have been satisfied.
If any Certificate or any interest therein is acquired or held
in violation of the provisions of the preceding two paragraphs, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
that Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any such
Certificate or interest therein was effected in violation of the provisions of
the preceding paragraph shall indemnify and hold harmless the Depositor, the
Master Servicer, the Trustee, the Trust Administrator, the Certificate
Registrar, the Paying Agent, the Authenticating Agent and the Trust Fund from
and against any and all liabilities, claims, costs or expenses incurred by those
parties as a result of that acquisition or holding.
(c) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Paying Agent or its
designee under clause (iii)(A) below to deliver payments to a Person other than
such Person and to negotiate the terms of any mandatory sale under clause
(iii)(B) below and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Certificate Registrar
of any change or impending change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it and shall not register
the Transfer of any Residual Certificate until its receipt of
an affidavit and agreement (a "Transfer Affidavit and
Agreement"), in the form attached hereto as Exhibit F-2, from
the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among
other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is
not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor
to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of the Certificate
Registrar who is assigned to this transaction has actual
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knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (x) to require
a Transfer Affidavit and Agreement from any other Person to
whom such Person attempts to transfer its Ownership Interest
in a Residual Certificate and (y) not to transfer its
Ownership Interest unless it provides a transferor affidavit
(a "Transferor Affidavit"), in the form attached hereto as
Exhibit F-2, to the Certificate Registrar stating that, among
other things, it has no actual knowledge that such other
Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing an Ownership
Interest in such Certificate, agrees to give the Certificate
Registrar written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation
Section 1.67- 3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is
holding an Ownership Interest in a Residual Certificate on
behalf of, a "pass-through interest holder."
(ii) The Certificate Registrar will register the
Transfer of any Residual Certificate only if it shall have
received the Transfer Affidavit and Agreement and all of such
other documents as shall have been reasonably required by the
Certificate Registrar as a condition to such registration. In
addition, no Transfer of a Residual Certificate shall be made
unless the Certificate Registrar shall have received a
representation letter from the Transferee of such Certificate
to the effect that such Transferee is a Permitted Transferee.
(iii) (A) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(d), then the last preceding
Permitted Transferee shall be restored, to the extent
permitted by law, to all rights as holder thereof retroactive
to the date of registration of such Transfer of such Residual
Certificate. The Certificate Registrar shall be under no
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such
Certificate to the holder thereof or for taking any other
action with respect to such holder under the provisions of
this Agreement.
(B) If any purported Transferee shall become a holder
of a Residual Certificate in violation of the restrictions in
this Section 5.02(d) and to the extent that the retroactive
restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Certificate
Registrar shall have the right, without notice to the holder
or any prior holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the
Certificate Registrar on such terms as the Certificate
Registrar may choose. Such purported Transferee shall promptly
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endorse and deliver each Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such
purchaser may be the Certificate Registrar itself or any
Affiliate of the Certificate Registrar. The proceeds of such
sale, net of the commissions (which may include commissions
payable to the Certificate Registrar or its Affiliates),
expenses and taxes due, if any, will be remitted by the
Certificate Registrar to such purported Transferee. The terms
and conditions of any sale under this clause (iii)(B) shall be
determined in the sole discretion of the Certificate
Registrar, and the Certificate Registrar shall not be liable
to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iv) The Trust Administrator and the Certificate
Registrar shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all
information necessary to compute any tax imposed (A) as a
result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations
sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the
"excess inclusions" of such Residual Certificate and (B) as a
result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate
having as among its record holders at any time any Person
which is a Disqualified Organization. Reasonable compensation
for providing such information may be accepted by the Trust
Administrator and the Certificate Registrar.
(v) The provisions of this Section 5.02(d) set forth
prior to this subsection (v) may be modified, added to or
eliminated, provided that there shall have been delivered to
the Trust Administrator and the Certificate Registrar at the
expense of the party seeking to modify, add to or eliminate
any such provision the following:
(A) written notification from the Rating Agencies to
the effect that the modification, addition to or elimination
of such provisions will not cause the Rating Agencies to
downgrade its then-current ratings of any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Trust
Administrator, to the effect that such modification of,
addition to or elimination of such provisions will not cause
any Trust REMIC to cease to qualify as a REMIC and will not
cause (x) any Trust REMIC to be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person
that is not a Permitted Transferee or (y) a Person other than
the prospective transferee to be subject to a REMIC-tax caused
by the Transfer of a Residual Certificate to a Person that is
not a Permitted Transferee.
(d) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the
Certificate Registrar maintained for such
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purpose pursuant to Section 8.12, the Certificate Registrar shall give notice of
such surrender to the Paying Agent and the Authenticating Agent. Upon receipt of
such notice, the Paying Agent shall execute and the Authenticating Agent shall
authenticate and deliver, in the name of the designated Transferee or
Transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest.
(e) At the option of the Holder thereof, any Certificate may
be exchanged for other Certificates of the same Class with authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any office or agency of the Certificate Registrar
maintained for such purpose pursuant to Section 8.12. Whenever any Certificates
are so surrendered for exchange, upon notice from the Certificate Registrar, the
Paying Agent shall execute, and the Authenticating Agent shall authenticate and
deliver, the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(f) No service charge to the Certificateholders shall be made
for any transfer or exchange of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(g) All Certificates surrendered for transfer and exchange
shall be canceled and destroyed by the Certificate Registrar in accordance with
its customary procedures.
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar, the Trustee and the Trust
Administrator such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of actual knowledge by the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Paying Agent shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and of like denomination
and Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Certificate Registrar may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
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SECTION 5.04 Persons Deemed Owners.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator, the Certificate Registrar, the Authenticating Agent, the Paying
Agent and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the Trustee, the
Trust Administrator, the Certificate Registrar, the Authenticating Agent, the
Paying Agent or any agent of any of them shall be affected by notice to the
contrary.
SECTION 5.05 Certain Available Information.
The Paying Agent shall maintain at its Corporate Trust Office
and shall make available free of charge during normal business hours for review
by any Holder of a Certificate or any Person identified to the Paying Agent as a
prospective transferee of a Certificate, originals or copies of the following
items: (A) this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all monthly statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trust Administrator since the Closing
Date pursuant to Section 10.01(h), (D) any and all Officers' Certificates
delivered to the Trust Administrator or the Paying Agent by the Master Servicer
since the Closing Date to evidence the Master Servicer's determination that any
P&I Advance was, or if made, would be a Nonrecoverable P&I Advance and (E) any
and all Officers' Certificates delivered to the Trust Administrator or the
Paying Agent by the Master Servicer since the Closing Date pursuant to Section
4.04(a). Copies and mailing of any and all of the foregoing items will be
available from the Paying Agent upon request at the expense of the person
requesting the same.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01 Liability of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement and undertaken hereunder by the Depositor and the Master
Servicer herein.
SECTION 6.02 Merger or Consolidation of the Depositor or the
Master Servicer.
Subject to the following paragraph, the Depositor will keep in
full effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation. Subject to the following paragraph,
the Master Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and its qualification as an approved conventional seller/servicer
for Xxxxxx Xxx or Xxxxxxx Mac in good standing. The Depositor and the Master
Servicer each will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
The Depositor or the Master Servicer may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Mae or Xxxxxxx Mac; and provided further that the Rating Agencies'
ratings of the Class A Certificates and the Mezzanine Certificates in effect
immediately prior to such merger or consolidation will not be qualified, reduced
or withdrawn as a result thereof (as evidenced by a letter to such effect from
the Rating Agencies).
SECTION 6.03 Limitation on Liability of the Depositor, the
Master Servicer and Others.
None of the Depositor, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor or the Master Servicer
shall be under any liability to the Trust Fund or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or any such
person against
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any breach of warranties, representations or covenants made herein, or against
any specific liability imposed on the Master Servicer pursuant hereto, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Depositor, the
Master Servicer and any director, officer, employee or agent of the Depositor or
the Master Servicer may rely in good faith on any document of any kind which,
PRIMA FACIE, is properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Master Servicer and any director,
officer, employee or agent of the Depositor or the Master Servicer shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Certificates, other than any loss, liability or expense to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, in its opinion, does not involve it in any expense or
liability; provided, however, that each of the Depositor and the Master Servicer
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, unless the Depositor or the Master Servicer acts without the consent of
Holders of Certificates entitled to at least 51% of the Voting Rights (which
consent shall not be necessary in the case of litigation or other legal action
by either to enforce their respective rights or defend themselves hereunder),
the legal expenses and costs of such action and any liability resulting
therefrom (except any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder) shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor (subject to
the limitations set forth above) and the Master Servicer shall be entitled to be
reimbursed therefor from the Collection Account as and to the extent provided in
Section 3.11, any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Collection Account.
The Credit Risk Oversight Advisor and any director, officer,
employee or agent of the Credit Risk Oversight Advisor shall be indemnified and
held harmless by the Trust Fund against any loss, liability or expense (not
including expenses, disbursements and advances incurred or made by the Credit
Risk Oversight Advisor, including the compensation and the expenses and
disbursements of its agents and counsel, in the ordinary course of its
appointment as credit risk oversight advisor or its performance of its duties as
such) incurred in connection with any claim or legal action or any pending or
threatened claim or legal action relating to this Agreement, the Credit Risk
Oversight Advisor Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of duties under the Credit Risk Oversight Advisor Agreement or
by reason of reckless disregard of obligations and duties thereunder.
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SECTION 6.04 Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and
duties hereby imposed on it except (i) upon determination that its duties
hereunder are no longer permissible under applicable law or (ii) with the
written consent of the Trustee and the Trust Administrator, which consent may
not be unreasonably withheld, with written confirmation from the Rating Agencies
(which confirmation shall be furnished to the Depositor, the Trustee and the
Trust Administrator) that such resignation will not cause the Rating Agencies to
reduce the then current rating of the Class A Certificates and provided that a
qualified successor has agreed to assume the duties and obligations of the
Master Servicer hereunder. Any such determination pursuant to clause (i) of the
preceding sentence permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect obtained at the expense of the
Master Servicer and delivered to the Trustee and the Trust Administrator. No
resignation of the Master Servicer shall become effective until the Trustee or a
successor servicer shall have assumed the Master Servicer's responsibilities,
duties, liabilities (other than those liabilities arising prior to the
appointment of such successor) and obligations under this Agreement.
Except as expressly provided herein, the Master Servicer shall
not assign nor transfer any of its rights, benefits or privileges hereunder to
any other Person, nor delegate to or subcontract with, nor authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer are transferred to a successor master
servicer, the entire amount of the Servicing Fee, the Administration Fee and
other compensation payable to the Master Servicer pursuant hereto shall
thereafter be payable to such successor master servicer.
SECTION 6.05 Rights of the Depositor in Respect of the Master
Servicer.
The Master Servicer shall afford (and any Sub-Servicing
Agreement shall provide that each Sub-Servicer shall afford) the Depositor, the
Trustee and the Trust Administrator, upon reasonable notice, during normal
business hours, access to all records maintained by the Master Servicer (and any
such Sub-Servicer) in respect of the Master Servicer's rights and obligations
hereunder and access to officers of the Master Servicer (and those of any such
Sub-Servicer) responsible for such obligations. Upon request, the Master
Servicer shall furnish to the Depositor, the Trustee and the Trust Administrator
its (and any such Sub-Servicer's) most recent financial statements of the parent
company of the Master Servicer and such other information relating to the Master
Servicer's capacity to perform its obligations under this Agreement that it
possesses. Notwithstanding the foregoing, in the case of the Initial
Sub-Servicer, such access and information described in the preceding two
sentences shall be required to be provided only to the extent provided in the
Sub-Servicing Agreement. To the extent such information is not otherwise
available to the public, the Depositor, the Trustee and the Trust Administrator
shall not disseminate any information obtained pursuant to the preceding two
sentences without the Master Servicer's written consent, except as required
pursuant to this Agreement or to the extent that it is appropriate to do so (i)
in working with legal counsel, auditors, taxing authorities or other
governmental agencies, rating agencies or reinsurers or (ii) pursuant to any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Depositor, the Trustee,
the Trust Administrator or the Trust Fund,
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and in either case, the Depositor, the Trustee or the Trust Administrator, as
the case may be, shall use its best efforts to assure the confidentiality of any
such disseminated non-public information. 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 or
exercise the 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. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer and is not obligated to supervise the
performance of the Master Servicer under this Agreement or otherwise.
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ARTICLE VII
DEFAULT
SECTION 7.01 Master Servicer Events of Default.
"Master Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Master Servicer to remit to
the Paying Agent for distribution to the Certificateholders
any payment (other than a P&I Advance required to be made from
its own funds on any Master Servicer Remittance Date pursuant
to Section 4.03) required to be made under the terms of the
Certificates and this Agreement which continues unremedied for
a period of one Business Day after the date upon which written
notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer (with a copy to
the Paying Agent ) by the Depositor, the Trust Administrator
or the Trustee (in which case notice shall be provided by
telecopy), or to the Master Servicer, the Depositor, the Trust
Administrator, the Paying Agent and the Trustee by the Holders
of Certificates entitled to at least 25% of the Voting Rights;
or
(ii) any failure on the part of the Master Servicer
duly to observe or perform in any material respect any of the
covenants or agreements on the part of the Master Servicer
contained in the Certificates or in this Agreement which
continues unremedied for a period of 30 days after the earlier
of (i) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Master Servicer by the Depositor, the Trust Administrator
or the Trustee, or to the Master Servicer, the Depositor, the
Trust Administrator and the Trustee by the Holders of
Certificates entitled to at least 25% of the Voting Rights and
(ii) actual knowledge of such failure by a Servicing Officer
of the Master Servicer; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in
an involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceeding, or for the winding-up or liquidation of
its affairs, shall have been entered against the Master
Servicer and if such proceeding is being contested by the
Master Servicer in good faith such decree or order shall have
remained in force undischarged or unstayed for a period of 60
consecutive days or results in the entry of an order for
relief or any such adjudication or appointment; or
(iv) the Master Servicer shall consent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt,
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marshalling of assets and liabilities or similar proceedings
of or relating to the Master Servicer or of or relating to all
or substantially all of its property; or
(v) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
(vi) any failure of the Master Servicer to make, or of the Paying
Agent to make on behalf of the Master Servicer, any P&I
Advance on any Master Servicer Remittance Date required to be
made from its own funds pursuant to Section 4.03.
If a Master Servicer Event of Default described in clauses (i)
through (v) of this Section shall occur, then, and in each and every such case,
so long as such Master Servicer Event of Default shall not have been remedied,
the Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of Voting Rights, the Trustee shall, by
notice in writing to the Master Servicer (and to the Depositor if given by the
Trustee or to the Trustee if given by the Depositor), terminate all of the
rights and obligations of the Master Servicer in its capacity as a Master
Servicer under this Agreement, to the extent permitted by law, and in and to the
Mortgage Loans and the proceeds thereof. If a Master Servicer Event of Default
described in clause (vi) hereof shall occur and shall not have been remedied by
1:00 p.m. on the related Distribution Date, the Paying Agent shall notify the
Trustee of the same, and the Trustee shall be obligated to make such P&I Advance
and, then so long as such Master Servicer Event of Default shall not have been
remedied during the applicable time period set forth in clause (vi) above
(including the reimbursement to the Trustee by the Master Servicer, with
interest thereon at the Prime Rate, for any P&I Advance made), the Trustee
shall, by notice in writing to the Master Servicer and the Depositor, terminate
all of the rights and obligations of the Master Servicer in its capacity as a
Master Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section and, without limitation, the
Trustee is hereby authorized and empowered, as attorney-in-fact or otherwise, to
execute and deliver on behalf of and at the expense of the Master Servicer, any
and all documents and other instruments and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees, at its sole cost and expense, promptly (and in any event no later than
ten Business Days subsequent to such notice) to provide the Trustee with all
documents and records requested by it to enable it to assume the Master
Servicer's functions under this Agreement, and to cooperate with the Trustee in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, the transfer within one
Business Day to the Trustee for administration by it of all cash amounts which
at the time shall be or should have been credited by the Master Servicer to the
Collection Account held by or on behalf of the Master Servicer, the Distribution
Account or any REO Account or Servicing Account held by or on behalf of the
Master Servicer or thereafter be received with respect to the
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Mortgage Loans or any REO Property serviced by the Master Servicer (provided,
however, that the Master Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the date of
such termination, whether in respect of P&I Advances or otherwise, and shall
continue to be entitled to the benefits of Section 6.03, notwithstanding any
such termination, with respect to events occurring prior to such termination).
For purposes of this Section 7.01, the Trustee shall not be deemed to have
knowledge of a Master Servicer Event of Default unless a Responsible Officer of
the Trustee assigned to and working in the Trustee's Corporate Trust Office has
actual knowledge thereof or unless written notice of any event which is in fact
such a Master Servicer Event of Default is received by the Trustee and such
notice references the Certificates, the Trust Fund or this Agreement.
SECTION 7.02 Trustee to Act; Appointment of Successor.
(a) On and after the time the Master Servicer receives a
notice of termination, the Trustee shall be the successor in all respects to the
Master Servicer in its capacity as Master Servicer under this Agreement, the
Master Servicer shall not have the right to withdraw any funds from the
Collection Account without the consent of the Trustee and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer (except for any representations or warranties of the Master
Servicer under this Agreement, the responsibilities, duties and liabilities
contained in Section 2.03(c) and its obligation to deposit amounts in respect of
losses pursuant to Section 3.12) by the terms and provisions hereof including,
without limitation, the Master Servicer's obligations to make P&I Advances
pursuant to Section 4.03; provided, however, that if the Trustee is prohibited
by law or regulation from obligating itself to make advances regarding
delinquent mortgage loans, then the Trustee shall not be obligated to make P&I
Advances pursuant to Section 4.03; and provided further, that any failure to
perform such duties or responsibilities caused by the Master Servicer's failure
to provide information required by Section 7.01 shall not be considered a
default by the Trustee as successor to the Master Servicer hereunder. As
compensation therefor, the Trustee shall be entitled to the Servicing Fees and
Administration Fees and all funds relating to the Mortgage Loans to which the
Master Servicer would have been entitled if it had continued to act hereunder
(other than amounts which were due or would become due to the Master Servicer
prior to its termination or resignation). Notwithstanding the above, the Trustee
may, if it shall be unwilling to so act, or shall, if it is unable to so act or
if it is prohibited by law from making advances regarding delinquent mortgage
loans, or if the Holders of Certificates entitled to at least 51% of the Voting
Rights so request in writing to the Trustee, promptly appoint or petition a
court of competent jurisdiction to appoint, an established mortgage loan
servicing institution acceptable to the Rating Agencies and having a net worth
of not less than $15,000,000 as the successor to the Master Servicer under this
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer under this Agreement. No appointment of a
successor to the Master Servicer under this Agreement shall be effective until
the assumption by the successor of all of the Master Servicer's
responsibilities, duties and liabilities hereunder. In connection with such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Master Servicer as such
hereunder. The Depositor, the Trustee and such
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successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Pending appointment of a successor
to the Master Servicer under this Agreement, the Trustee shall act in such
capacity as hereinabove provided.
(b) In connection with the termination or resignation of the
Master Servicer hereunder, either (i) the successor servicer, including the
Trustee, if the Trustee is acting as successor Master Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, in which case the predecessor Master Servicer shall cooperate with the
successor Master Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor Master Servicer as necessary under MERS'
rules and regulations, or (ii) the predecessor Master Servicer shall cooperate
with the successor Master Servicer in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
successor Master Servicer. The predecessor Master Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Master Servicer shall bear any and all fees of MERS, costs of
preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this Section 7.02(b).
SECTION 7.03 Notification to Certificateholders.
(a) Upon any termination of the Master Servicer pursuant to
Section 7.01 above or any appointment of a successor to the Master Servicer
pursuant to Section 7.02 above, the Trustee shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register.
(b) Not later than the later of 60 days after the occurrence
of any event, which constitutes or which, with notice or lapse of time or both,
would constitute a Master Servicer Event of Default or five days after a
Responsible Officer of the Trustee becomes aware of the occurrence of such an
event, the Trustee shall transmit by mail to all Holders of Certificates notice
of each such occurrence, unless such default or Master Servicer Event of Default
shall have been cured or waived.
SECTION 7.04 Waiver of Master Servicer Events of Default.
Subject to Section 11.09(d), the Holders representing at least
66% of the Voting Rights evidenced by all Classes of Certificates affected by
any default or Master Servicer Event of Default hereunder may waive such default
or Master Servicer Event of Default; provided, however, that a default or Master
Servicer Event of Default under clause (i) or (vi) of Section 7.01 may be waived
only by all of the Holders of the Regular Certificates. Upon any such waiver of
a default or Master Servicer Event of Default, such default or Master Servicer
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Master Servicer
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Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE, THE TRUST ADMINISTRATOR, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR AND THE
AUTHENTICATING AGENT
SECTION 8.01 Duties of Trustee, Trust Administrator and
Others.
The Trustee, prior to the occurrence of a Master Servicer
Event of Default and after the curing of all Master Servicer Events of Default
which may have occurred, and each of the Trust Administrator, the Paying Agent,
the Certificate Registrar and the Authenticating Agent, at all times, undertakes
to perform such duties and only such duties as are specifically set forth in
this Agreement. During a Master Servicer Event of Default, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs. Any permissive right of the Trustee, the Trust Administrator, the
Paying Agent, the Certificate Registrar or the Authenticating Agent enumerated
in this Agreement shall not be construed as a duty.
Each of the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar and the Authenticating Agent, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to it, which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement; provided,
however, that none of the Trustee, the Trust Administrator, the Paying Agent,
the Certificate Registrar or the Authenticating Agent will be responsible for
the accuracy or content of any such resolutions, certificates, statements,
opinions, reports, documents or other instruments. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
it shall take such action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to its satisfaction, it will
provide notice thereof to the Certificateholders.
No provision of this Agreement shall be construed to relieve
the Trustee, the Trust Administrator, the Paying Agent, the Certificate
Registrar or the Authenticating Agent from liability for its own negligent
action, its own negligent failure to act or its own misconduct; provided,
however, that:
(i) With respect to the Trustee, prior to the
occurrence of a Master Servicer Event of Default, and after
the curing of all such Master Servicer Events of Default which
may have occurred, and with respect to the Trust
Administrator, the Paying Agent, the Certificate Registrar and
the Authenticating Agent, at all times, the duties and
obligations of each of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar and the
Authenticating Agent, shall be determined solely by the
express provisions of this Agreement, none of the Trustee, the
Trust Administrator, the Paying Agent, the Certificate
Registrar or the Authenticating Agent shall be liable except
for the performance of such duties
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and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee, the Trust
Administrator, the Paying Agent, the Certificate Registrar or
the Authenticating Agent and, in the absence of bad faith on
the part of the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar or the Authenticating Agent,
as applicable, the Trustee, the Trust Administrator, the
Paying Agent, the Certificate Registrar or the Authenticating
Agent, as the case may be, may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trustee, the Trust Administrator, the Paying Agent, the
Certificate Registrar or the Authenticating Agent, as the case
may be, that conform to the requirements of this Agreement;
(ii) None of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar or the
Authenticating Agent shall be personally liable for any error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of it unless it shall be proved that it
was negligent in ascertaining the pertinent facts;
(iii) None of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar or the
Authenticating Agent shall be personally liable with respect
to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
Certificates entitled to at least 25% of the Voting Rights
relating to the time, method and place of conducting any
proceeding for any remedy available to the it or exercising
any trust or power conferred upon it, under this Agreement;
and
(iv) The Trustee shall not be required to take notice
or be deemed to have notice or knowledge of any default unless
a Responsible Officer of the Trustee shall have received
written notice thereof or a Responsible Officer shall have
actual knowledge thereof. In the absence of receipt of such
notice or actual knowledge, the Trustee may conclusively
assume there is no default.
None of the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar or the Authenticating Agent shall be required
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, in each case not including expenses, disbursements and
advances incurred or made by the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar or the Authenticating Agent, as applicable,
including the compensation and the expenses and disbursements of its agents and
counsel, in the ordinary course of the Trustee's, the Trust Administrator's the
Paying Agent's, the Certificate Registrar's or the Authenticating Agent's, as
the case may be, performance in accordance with the provisions of this
Agreement, if there is reasonable ground for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. With respect to the Trustee, none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations of
the Master Servicer under this Agreement, except during such time, if any, as
the Trustee shall be the successor to,
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and be vested with the rights, duties, powers and privileges of, the Master
Servicer in accordance with the terms of this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee, the Trust
Administrator and Others.
(a) Except as otherwise provided in Section 8.01:
(i) Each of the Trustee, the Trust Administrator, the
Paying Agent, the Certificate Registrar and the Authenticating
Agent and any director, officer, employee or agent of the
Trustee, the Trust Administrator, the Paying Agent, the
Certificate Registrar or the Authenticating Agent, as the case
may be, may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any
resolution, Officers' Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or
parties;
(ii) Each of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar and the
Authenticating Agent may consult with counsel of its selection
and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) None of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar or the
Authenticating Agent shall be under any obligation to exercise
any of the trusts or powers vested in it by this Agreement or
to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of
the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered
to the Trustee, the Trust Administrator, the Paying Agent, the
Certificate Registrar or the Authenticating Agent, as
applicable, security or indemnity satisfactory to it against
the costs, expenses and liabilities which may be incurred
therein or thereby; the right of the Trustee, the Trust
Administrator, the Paying Agent, the Certificate Registrar or
the Authenticating Agent to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty,
and none of the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar or the Authenticating Agent
shall be answerable for other than its negligence or willful
misconduct in the performance of any such act; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of a Master Servicer Event of
Default (which has not been cured or waived), to exercise such
of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as
a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs;
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(iv) None of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar or the
Authenticating Agent shall be personally liable for any action
taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) With respect to the Trustee, prior to the
occurrence of a Master Servicer Event of Default hereunder,
and after the curing of all Master Servicer Events of Default
which may have occurred, and with respect to the Trust
Administrator, the Paying Agent, the Certificate Registrar or
the Authenticating Agent, at all times, none of the Trustee,
the Trust Administrator, the Paying Agent, the Certificate
Registrar or the Authenticating Agent shall be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so
by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee, the Trust Administrator, the
Paying Agent, the Certificate Registrar or the Authenticating
Agent, as applicable, of the costs, expenses or liabilities
likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, the Trust
Administrator, the Paying Agent, the Certificate Registrar or
the Authenticating Agent, as applicable, not reasonably
assured to the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar or the Authenticating Agent,
as applicable, by such Certificateholders, the Trustee, the
Trust Administrator, the Paying Agent, the Certificate
Registrar or the Authenticating Agent, as applicable, may
require indemnity satisfactory to it against such cost,
expense, or liability from such Certificateholders as a
condition to taking any such action;
(vi) Each of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar and the
Authenticating Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and none of the Trustee, the
Trust Administrator, the Paying Agent, the Certificate
Registrar or the Authenticating Agent shall be responsible for
any misconduct or negligence on the part of any agent or
attorney appointed with due care;
(vii) None of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar or the
Authenticating Agent shall be personally liable for any loss
resulting from the investment of funds held in the Collection
Account at the direction of the Master Servicer pursuant to
Section 3.12; and
(viii) Any request or direction of the Depositor, the
Master Servicer or the Certificateholders mentioned herein
shall be sufficiently evidenced in writing.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, the Trust Administrator, the
Paying Agent, the Certificate Registrar
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or the Authenticating Agent, may be enforced by it without the possession of any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee, the Trust Administrator, the Paying Agent, the Certificate Registrar or
the Authenticating Agent shall be brought in its name for the benefit of all the
Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 8.03 Trustee, Trust Administrator and Others not
Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the signatures of the Trustee, the Trust Administrator and Citibank hereto,
the signature of the Paying Agent and the authentication of the Authenticating
Agent on the Certificates, the acknowledgments of the Trustee and the Trust
Administrator contained in Article II and the representations and warranties of
the Trustee, the Trust Administrator and Citibank in Section 8.12) shall be
taken as the statements of the Depositor and none of the Trustee, the Trust
Administrator, the Paying Agent, the Certificate Registrar or the Authenticating
Agent assumes any responsibility for their correctness. None of the Trustee, the
Trust Administrator, the Paying Agent, the Certificate Registrar or the
Authenticating Agent makes any representations or warranties as to the validity
or sufficiency of this Agreement (other than as specifically set forth in
Section 8.12) or of the Certificates (other than the signature of the Paying
Agent and authentication of the Authenticating Agent on the Certificates) or of
any Mortgage Loan or related document or of MERS or the MERS System. None of the
Trustee, the Trust Administrator, the Paying Agent, the Certificate Registrar or
the Authenticating Agent shall be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Collection Account by the Master Servicer.
SECTION 8.04 Trustee, Trust Administrator and Others May Own
Certificates.
Each of the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar and the Authenticating Agent in its individual
capacity or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Trustee, the Trust
Administrator, the Paying Agent, the Certificate Registrar or the Authenticating
Agent, as applicable.
SECTION 8.05 Trustee's, Trust Administrator's, Paying Agent's,
Authenticating Agent's, Certificate Registrar's
and Custodians' Fees and Expenses.
(a) The compensation to be paid to the Trustee, the Trust
Administrator, the Paying Agent, the Authenticating Agent and the Certificate
Registrar in respect of each of its obligations under this Agreement or of a
Custodian's obligations under the applicable Custodial Agreement will be the
amounts paid by the Master Servicer from its own funds or from a portion of the
compensation paid to the Master Servicer hereunder pursuant to letter agreements
between the Master Servicer and the Trustee, the Trust Administrator, the Paying
Agent, the
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Authenticating Agent, the Certificate Registrar and such Custodian (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and no such compensation shall be
paid from the assets of the Trust. Each of the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar, the Authenticating Agent, a
Custodian and any director, officer, employee or agent of any of them, as
applicable, shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense (not including expenses, disbursements and advances
incurred or made by the Trustee, the Trust Administrator, the Paying Agent, the
Certificate Registrar, the Authenticating Agent or a Custodian, as applicable,
including the compensation and the expenses and disbursements of its agents and
counsel, in the ordinary course of the Trustee's, the Trust Administrator's the
Paying Agent's, the Certificate Registrar's, the Authenticating Agent's or a
Custodian's, as the case may be, performance in accordance with the provisions
of this Agreement) incurred by the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar, the Authenticating Agent or a Custodian, as
applicable, in connection with any claim or legal action or any pending or
threatened claim or legal action arising out of or in connection with the
acceptance or administration of its obligations and duties under this Agreement
(or, in the case of a Custodian, under the applicable Custodial Agreement),
other than any loss, liability or expense (i) resulting from any breach of the
Master Servicer's (and in the case of the Trustee, the Trust Administrator's or
the Paying Agent's; in the case of the Trust Administrator, the Trustee's or the
Paying Agent's; or in the case of the Paying Agent, the Trustee's or the Trust
Administrator's) obligations in connection with this Agreement and the Mortgage
Loans, (ii) that constitutes a specific liability of the Trustee, the Trust
Administrator or the Paying Agent, as applicable, pursuant to Section 10.01(g)
or (iii) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder (or, in the
case of a Custodian, under the applicable Custodial Agreement) or as a result of
a breach of the Trustee's, the Trust Administrator's or the Paying Agent's
obligations under Article X hereof (or, in the case of a Custodian, as a result
of a breach of such Custodian's obligations under the related Custodial
Agreement). Any amounts payable to the Trustee, the Trust Administrator, the
Paying Agent, the Certificate Registrar or the Authenticating Agent, a
Custodian, or any director, officer, employee or agent of any of them in respect
of the indemnification provided by this paragraph (a), or pursuant to any other
right of reimbursement from the Trust Fund that the Trustee, the Trust
Administrator, the Paying Agent, the Certificate Registrar, the Authenticating
Agent, a Custodian or any director, officer, employee or agent of any of them
may have hereunder in its capacity as such, may be withdrawn by the Paying Agent
for payment to the applicable indemnified Person from the Distribution Account
at any time.
(b) The Master Servicer agrees to indemnify the Trustee, the
Trust Administrator, the Paying Agent, the Certificate Registrar, the
Authenticating Agent and any Custodian from, and hold each harmless against, any
loss, liability or expense resulting from a breach of the Master Servicer's
obligations and duties under this Agreement. Such indemnity shall survive the
termination or discharge of this Agreement and the resignation or removal of the
Trustee, the Trust Administrator, the Paying Agent, the Certificate Registrar,
the Authenticating Agent or such Custodian, as the case may be. Any payment
hereunder made by the Master Servicer to the Trustee, the Trust Administrator,
the Paying Agent, the Certificate Registrar, the Authenticating Agent or such
Custodian shall be from the Master Servicer's own funds, without reimbursement
from the Trust Fund therefor.
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SECTION 8.06 Eligibility Requirements for Trustee and Trust
Administrator.
Each of the Trustee and the Trust Administrator hereunder
shall at all times be a corporation or an association organized and doing
business under the laws of any state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. In case at any time the Trustee or the Trust
Administrator shall cease to be eligible in accordance with the provisions of
this Section, the Trustee or the Trust Administrator, as the case may be, shall
resign immediately in the manner and with the effect specified in Section 8.07.
SECTION 8.07 Resignation and Removal of the Trustee and the
Trust Administrator.
Either of the Trustee or the Trust Administrator may at any
time resign and be discharged from the trust hereby created by giving written
notice thereof to the Depositor, the Master Servicer and the Certificateholders
and, if the Trustee is resigning, to the Trust Administrator, or, if the Trust
Administrator is resigning, to the Trustee. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee or trust
administrator (which may be the same Person in the event the Trust Administrator
resigns or is removed) by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee or Trust Administrator and to the
successor trustee or trust administrator, as applicable. A copy of such
instrument shall be delivered to the Certificateholders, the Trustee or Trust
Administrator, as applicable, and the Master Servicer by the Depositor. If no
successor trustee or trust administrator shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Trust Administrator, as applicable, may
petition any court of competent jurisdiction for the appointment of a successor
trustee or trust administrator, as applicable.
If at any time the Trustee or the Trust Administrator shall
cease to be eligible in accordance with the provisions of Section 8.06 and shall
fail to resign after written request therefor by the Depositor (or in the case
of the Trust Administrator, the Trustee), or if at any time the Trustee or the
Trust Administrator shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or the Trust Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or the Trust Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor (or in the case of the Trust Administrator, the Trustee) may remove
the Trustee or the Trust Administrator, as applicable, and appoint a successor
trustee or trust administrator (which may be the same Person in the event the
Trust Administrator resigns or is removed) by written instrument, in duplicate,
which instrument shall be delivered to the Trustee or Trust Administrator so
removed and to the successor trustee or trust administrator. A copy of such
instrument shall be delivered to the Certificateholders, the Trustee or the
Trust Administrator, as applicable, and the Master Servicer by the Depositor.
The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or the Trust Administrator and
appoint a successor trustee or trust
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administrator by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, one complete set to the
Trustee or the Trust Administrator, as the case may be, so removed and one
complete set to the successor so appointed. A copy of such instrument shall be
delivered to the Certificateholders and the Master Servicer by the Depositor.
If no successor Trust Administrator shall have been appointed
and shall have accepted appointment within 60 days after the Trust Administrator
ceases to be the Trust Administrator pursuant to this Section 8.07, then the
Trustee shall perform the duties of the Trust Administrator pursuant to this
Agreement. The Trustee shall notify the Rating Agencies of any change of Trust
Administrator.
Any resignation or removal of the Trustee or the Trust
Administrator and appointment of a successor trustee or trust administrator, as
the case may be, pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee or
trust administrator as provided in Section 8.08. Notwithstanding the foregoing,
in the event the Trust Administrator advises the Trustee that it is unable to
continue to perform its obligations pursuant to the terms of this Agreement
prior to the appointment of a successor, the Trustee shall be obligated to
perform such obligations until a new trust administrator is appointed. Such
performance shall be without prejudice to any claim by a party hereto or
beneficiary hereof resulting from the Trust Administrator's breach of its
obligations hereunder. As compensation therefor, the Trustee shall be entitled
to all fees the Trust Administrator would have been entitled to if it had
continued to act hereunder.
SECTION 8.08 Successor Trustee or Trust Administrator.
Any successor trustee or trust administrator appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Trustee or the Trust Administrator, as applicable, and to its
predecessor trustee or trust administrator an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee or trust administrator shall become effective and such
successor trustee or trust administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee or trust administrator herein. The predecessor trustee or trust
administrator shall deliver to the successor trustee or trust administrator all
Mortgage Files and related documents and statements, as well as all moneys, held
by it hereunder and the Depositor and the predecessor trustee or trust
administrator shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee or trust administrator all such rights,
powers, duties and obligations.
No successor trustee or trust administrator shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor trustee or trust administrator shall be eligible under the
provisions of Section 8.06 and the appointment of such successor trustee or
trust administrator shall not result in a downgrading of any Class of
Certificates by the Rating Agencies, as evidenced by a letter from the Rating
Agencies.
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Upon acceptance of appointment by a successor trustee or trust
administrator as provided in this Section, the Depositor shall mail notice of
the succession of such trustee or trust administrator hereunder to all Holders
of Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee or trust administrator, the successor
trustee or trust administrator shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 8.09 Merger or Consolidation of Trustee or Trust
Administrator.
Any corporation or association into which either the Trustee
or the Trust Administrator may be merged or converted or with which it may be
consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee or the Trust Administrator, as
the case may be, shall be a party, or any corporation or association succeeding
to the business of the Trustee or the Trust Administrator, as applicable, shall
be the successor of the Trustee or the Trust Administrator, as the case may be,
hereunder, provided such corporation or association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of REMIC I or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of REMIC I, and to
vest in such Person or Persons, in such capacity, such title to REMIC I, or any
part thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Master Servicer and the
Trustee may consider necessary or desirable. If the Master Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in case a Master Servicer Event of Default shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title to
REMIC I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
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Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trust conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11 [intentionally omitted]
SECTION 8.12 Appointment of Office or Agency.
The Trust Administrator or the Paying Agent on its behalf will
appoint an office or agency in the City of New York where the Certificates may
be surrendered for registration of transfer or exchange, and presented for final
distribution, and where notices and demands to or upon the Certificate
Registrar, the Paying Agent or the Trust Administrator in respect of the
Certificates and this Agreement may be served.
SECTION 8.13 Representations and Warranties.
Each of the Trustee, the Trust Administrator and Citibank
hereby represents and warrants to the Master Servicer, the Depositor and the
Trustee, the Trust Administrator and Citibank, as applicable, as of the Closing
Date, that:
(i) It is duly organized, validly existing and in
good standing under the laws of the State of Delaware, in the
case of the Trust Administrator, and the laws of the United
States, in the case of the Trustee and Citibank.
(ii) The execution and delivery of this Agreement by
it, and the performance and compliance with the terms of this
Agreement by it, will not violate its articles of association
or bylaws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable
to it or any of its assets.
(iii) It has the full power and authority to enter
into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and
delivered this Agreement.
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(iv) This Agreement, assuming due authorization,
execution and delivery by the other parties hereto,
constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) It is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which
violation, in its good faith and reasonable judgment, is
likely to affect materially and adversely either the ability
of the it to perform its obligations under this Agreement or
the financial condition of it.
(vi) No litigation is pending or, to the best of its
knowledge, threatened against it which would prohibit it from
entering into this Agreement or, in its good faith reasonable
judgment, is likely to materially and adversely affect either
the ability of it to perform its obligations under this
Agreement or the financial condition of it.
SECTION 8.14 Appointment and Removal of Paying Agent,
Authenticating Agent and Certificate Registrar.
(a) The Trust Administrator hereby appoints Citibank as Paying
Agent and Citibank hereby accepts such appointment. The Paying Agent shall hold
all amounts deposited with it by the Trust Administrator or the Master Servicer
for payment on the Certificates in trust for the benefit of the
Certificateholders until the amounts are paid to the Certificateholders or
otherwise disposed of in accordance with this Agreement.
Any corporation or national banking association into which the
Paying Agent may be merged in or converted or with which it may be consolidated,
or any corporation or national banking association resulting from any merger,
conversion or consolidation to which such Paying Agent shall be a party, or any
corporation or national banking association succeeding to the corporate agency
or corporate trust business of the Paying Agent, shall continue to be the Paying
Agent, provided such corporation or national banking association shall be
otherwise eligible under this section 8.14(a), without the execution or filing
of any paper or any further act on the part of the Trustee, the Trust
Administrator or the Paying Agent.
The Paying Agent may resign at any time by giving written
notice thereof to the Trustee and the Trust Administrator. The Trust
Administrator may at any time terminate the Paying Agent by giving written
notice thereof to the Authenticating Agent and to the Trustee. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Paying Agent shall cease to be eligible in accordance with the provisions
of this section 8.14(a), the Trust Administrator shall appoint a successor and
shall mail written notice of such
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appointment by first-class mail, postage prepaid to all Certificateholders as
their names and addresses appear in the Certificate Register and to the Rating
Agencies. Following the termination or resignation of the Paying Agent and prior
to the appointment of a successor Paying Agent, the Trust Administrator shall
act as Paying Agent hereunder. Any successor Paying Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as the
Paying Agent herein. No successor Paying Agent shall be appointed unless
eligible under the provisions of this section 8.14(a).
The Paying Agent and any successor Paying Agent (i) may not be
an Originator, the Master Servicer, a subservicer, the Depositor or an affiliate
of the Depositor unless the Paying Agent is an institutional trust department,
(ii) must be authorized to exercise corporate trust powers under the laws of its
jurisdiction of organization, and (iii) must at all times be rated at xxxxx "X0"
by if S&P is a Rating Agency and at least "A/F1" by Fitch if Fitch is a rating
agency and the equivalent rating by Moody's, if Xxxxx'x is a Rating Agency and
DBRS, if DBRS is a Rating Agency.
The Trust Administrator shall pay to the Paying Agent from its
own funds reasonable compensation for its services hereunder, and such expense
of the Trust Administrator shall not be payable from the Trust Fund and shall
not be recoverable by the Trust Administrator from the assets of the Trust Fund
pursuant to section 8.05 or any other provision of this Agreement.
(b) The Trust Administrator hereby appoints Citibank as
Authenticating Agent and Citibank hereby accepts such appointment. The
Authenticating Agent shall be authorized to authenticate the Certificates, and
Certificates so authenticated shall be entitled to the benefit of this
Agreement.
The Authenticating Agent shall at all times remain a
corporation or national banking association organized and doing business under
the laws of the United States of America, any state thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $15,000,000, authorized under such
laws to conduct a trust business and subject to supervision or examination by
federal or state authority. If the Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this section
8.14(b), the combined capital and surplus of the Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this section 8.14(b),
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this section 8.14(b).
Any corporation or national banking association into which the
Authenticating Agent may be merged in or converted or with which it may be
consolidated, or any corporation or national banking association resulting from
any merger, conversion or consolidation to which such Authenticating Agent shall
be a party, or any corporation or national banking association succeeding to the
corporate agency or corporate trust business of the Authenticating Agent, shall
continue to be the Authenticating Agent, provided such corporation or national
banking
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association shall be otherwise eligible under this section 8.14(b), without the
execution or filing of any paper or any further act on the part of the Trustee,
the Trust Administrator or the Authenticating Agent.
The Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Trust Administrator. The Trust
Administrator may at any time terminate the Authenticating Agent by giving
written notice thereof to the Authenticating Agent and to the Trustee. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this section 8.14(b), the Trust Administrator shall appoint a
successor and shall mail written notice of such appointment by first-class mail,
postage prepaid to all Certificateholders as their names and addresses appear in
the Certificate Register. Following the termination or resignation of the
Authenticating Agent and prior to the appointment of a successor Authenticating
Agent, the Trust Administrator shall act as Authenticating Agent hereunder. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as the Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this section 8.14(b).
The Trust Administrator shall pay to the Authenticating Agent
from its own funds reasonable compensation for its services hereunder, and such
expense of the Trust Administrator shall not be payable from the Trust Fund and
shall not be recoverable by the Trust Administrator from the assets of the Trust
Fund pursuant to section 8.05 or any other provision of this Agreement.
(c) The Trust Administrator hereby appoints Citibank as
Certificate Registrar and Citibank hereby accepts such appointment.
Any corporation or national banking association into which the
Certificate Registrar may be merged in or converted or with which it may be
consolidated, or any corporation or national banking association resulting from
any merger, conversion or consolidation to which such Certificate Registrar
shall be a party, or any corporation or national banking association succeeding
to the corporate agency or corporate trust business of the Certificate
Registrar, shall continue to be the Certificate Registrar, provided such
corporation or national banking association shall be otherwise eligible under
this section 8.14(c), without the execution or filing of any paper or any
further act on the part of the Trustee, the Trust Administrator or the
Certificate Registrar.
The Certificate Registrar may resign at any time by giving
written notice thereof to the Trustee and the Trust Administrator. The Trust
Administrator may at any time terminate the Certificate Registrar by giving
written notice thereof to the Authenticating Agent and to the Trustee.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Certificate Registrar shall cease to be
eligible in accordance with the provisions of this section 8.14(c), the Trust
Administrator shall appoint a successor and shall mail written notice of such
appointment by first-class mail, postage prepaid to all Certificateholders as
their
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names and addresses appear in the Certificate Register. Following the
termination or resignation of the Certificate Registrar and prior to the
appointment of a successor Certificate Registrar, the Trust Administrator shall
act as Certificate Registrar hereunder. Any successor Certificate Registrar upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as the Certificate Registrar herein. No successor Certificate
Registrar shall be appointed unless eligible under the provisions of this
section 8.14(c).
The Trust Administrator shall pay to the Certificate Registrar
from its own funds reasonable compensation for its services hereunder, and such
expense of the Trust Administrator shall not be payable from the Trust Fund and
shall not be recoverable by the Trust Administrator from the assets of the Trust
Fund pursuant to section 8.05 or any other provision of this Agreement.
SECTION 8.15 No Trustee Liability for Actions or Inactions of
Custodians.
Notwithstanding anything to the contrary herein, in no event
shall the Trustee be liable to any party hereto or to any third party for the
performance of any custody-related functions with respect to which the
applicable Custodian shall fail to take action on behalf of the Trustee or, with
respect to which the performance of custody-related functions pursuant to the
terms of the custodial agreement with the applicable Custodian shall fail to
satisfy all the related requirements under this Agreement
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ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of the
Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Trustee, the Paying Agent, the Certificate Registrar, the Authenticating Agent
and the Trust Administrator with respect to the Mortgage Loans (other than the
obligations of the Master Servicer to the Trustee and the Trust Administrator
pursuant to Section 8.05 and of the Master Servicer and the Trust Administrator
to provide for and the Paying Agent to make payments in respect of the REMIC I
Regular Interests and the Classes of Certificates as hereinafter set forth)
shall terminate upon payment to the Certificateholders and the deposit of all
amounts held by or on behalf of the Trustee or the Trust Administrator and
required hereunder to be so paid or deposited on the Distribution Date
coinciding with or following the earlier to occur of (i) the purchase by the
Terminator of all Mortgage Loans and each related REO Property remaining in
REMIC I and (ii) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or related REO Property remaining in
REMIC I; provided, however, that in no event shall the trust created hereby
continue beyond the earlier of (a) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador
of the United States to the Court of St. Xxxxx, living on the date hereof and
(b) the Latest Possible Maturity Date (as defined in the Preliminary Statement).
Subject to Section 3.10 hereof, the purchase by the Terminator
of all Mortgage Loans and each REO Property remaining in REMIC I shall be at a
price equal to the greater of (i) the Stated Principal Balance of the Mortgage
Loans and the appraised value of any REO Properties (such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee, in their reasonable discretion) and (ii) the fair market value of the
Mortgage Loans and the REO Properties (as determined by the Master Servicer,
with the consent of the Trustee as of the close of business on the third
Business Day next preceding the date upon which notice of any such termination
is furnished to the related Certificateholders pursuant to Section 9.01(c)), in
each case plus accrued and unpaid interest thereon at the weighted average of
the Mortgage Rates through the end of the Due Period preceding the final
Distribution Date plus unreimbursed Servicing Advances allocable to such
Mortgage Loans and REO Properties (the "TERMINATION PRICE"); provided, however,
such option may only be exercised if the Termination Price is sufficient to
result in the payment of all interest accrued on, as well as amounts necessary
to retire the principal balance of, each class of notes issued pursuant to the
Indenture.
(b) The majority Holder of the Class CE Certificates (so long
as such holder is not an affiliate of the Seller) or if such majority Holder
fails to exercise such right, the Master Servicer, shall have the right (the
party exercising such right, the "TERMINATOR"), to purchase all of the Mortgage
Loans and each REO Property remaining in REMIC I pursuant to clause (i) of the
preceding paragraph no later than the Determination Date in the month
immediately
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preceding the Distribution Date on which the Certificates will be retired;
provided, however, that the Terminator may elect to purchase all of the Mortgage
Loans and each REO Property remaining in REMIC I pursuant to clause (i) above
only if the aggregate Stated Principal Balance of the Mortgage Loans and each
REO Property remaining in the Trust Fund at the time of such election is reduced
to less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date. By acceptance of a Residual Certificate, the Holders of
the Residual Certificates agree, in connection with any termination hereunder,
to assign and transfer any amounts in excess of par, and to the extent received
in respect of such termination, to pay any such amounts to the Holders of the
Class CE Certificates.
(c) Notice of the liquidation of any Certificates shall be
given promptly by the Paying Agent by letter to the related Certificateholders
(with a copy to the Trustee and the Trust Administrator mailed (a) in the event
such notice is given in connection with the purchase of the Mortgage Loans and
each related REO Property remaining in REMIC I by the Terminator, not earlier
than the 15th day and not later than the 25th day of the month next preceding
the month of the final distribution on the related Certificates or (b) otherwise
during the month of such final distribution on or before the Determination Date
in such month, in each case specifying (i) the Distribution Date upon which
REMIC I will terminate and final payment of the Certificates and will be made
upon presentation and surrender of the Certificates at the office of the
Certificate Registrar therein designated, (ii) the amount of any such final
payment, (iii) that no interest shall accrue in respect of the Certificates from
and after the Interest Accrual Period relating to the final Distribution Date
therefor and (iv) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the office of the Certificate Registrar. In the event
such notice is given in connection with the purchase of all of the Mortgage
Loans and each REO Property remaining in REMIC I by the Terminator, the
Terminator shall deliver to the Paying Agent for deposit in the Distribution
Account (with notice to the Trustee and the Trust Administrator) not later than
the last Business Day of the month next preceding the month in which such
distribution will be made an amount in immediately available funds equal to the
Termination Price. Upon certification to the Trustee by a Servicing Officer of
the making of such final deposit, the Trustee shall promptly release or cause to
be released to the related Terminator the Mortgage Files for the remaining
Mortgage Loans and the Trustee shall execute all assignments, endorsements and
other instruments delivered to it which are necessary to effectuate such
transfer.
(d) Upon receipt of notice by the Paying Agent of the
presentation of the Certificates by the Certificateholders on the related final
Distribution Date to the Certificate Registrar, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates the amount otherwise distributable on such Distribution Date in
accordance with Section 4.01 in respect of the Certificates so presented and
surrendered. Any funds not distributed to any Holder or Holders of Certificates
being retired on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust by the Paying Agent and credited to the account of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second
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notice all such Certificates shall not have been surrendered for cancellation,
the Paying Agent shall, directly or through an agent, mail a final notice to
remaining related non-tendering Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the funds in trust and of
contacting such Certificateholders shall be paid out of the assets remaining in
the trust funds. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Paying Agent shall pay to
Citigroup Global Markets Inc. all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with this Section
9.01.
Immediately following the deposit of funds in trust hereunder
in respect of each of the Certificates the Trust Fund shall terminate.
SECTION 9.02 Additional Termination Requirements.
(a) In the event that the Terminator purchases all the
Mortgage Loans and each REO Property, REMIC I shall be terminated, in each case
in accordance with the following additional requirements (or in connection with
the final payment on or other liquidation of the last Mortgage Loan or REO
Property remaining in REMIC I, the additional requirement specified in clause
(i) below):
(i) The Trust Administrator shall specify the first
day in the 90-day liquidation period in a statement attached
to REMIC I's final Tax Return pursuant to Treasury regulation
Section 1.860F-1, and such termination shall satisfy all
requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder, as evidenced by an
Opinion of Counsel obtained at the expense of the Master
Servicer;
(ii) During such 90-day liquidation period, and at or
prior to the time of making of the final payment on the
Certificates, the Trust Administrator on behalf of the Trustee
shall sell all of the assets of REMIC I to the Terminator for
cash; and
(iii) At the time of the making of the final payment
on the related Certificates, the Paying Agent shall distribute
or credit, or cause to be distributed or credited, to the
Holders of the Class R Certificates all cash on hand in REMIC
I (other than cash retained to meet claims), and REMIC I shall
terminate at that time.
(b) At the expense of the Terminator (or in the event of
termination under Section 9.01(a)(ii) or Section 9.01(b)(ii), at the expense of
the Trust Administrator), the Trust Administrator shall prepare or cause to be
prepared the documentation required in connection with the adoption of a plan of
liquidation of REMIC I pursuant to this Section 9.02.
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(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trust Administrator to specify the 90-day
liquidation period for REMIC I which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The Trustee shall elect to treat each REMIC created
hereunder as a REMIC under the Code and, if necessary, under applicable state
law. Such election will be made by the Trust Administrator on behalf of the
Trustee on Form 1066 or other appropriate federal tax or information return or
any appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. For the purposes of the
REMIC election in respect of REMIC I, the REMIC I Regular Interests shall be
designated as the Regular Interests in REMIC I and the Class R-I Interest shall
be designated as the Residual Interest in REMIC I. The Class A Certificates, the
Mezzanine Certificates, the Class CE Certificates and the Class P Certificates
shall be designated as the Regular Interests in REMIC II and the Class R-II
Interest shall be designated as the Residual Interest in REMIC II. Neither the
Trustee nor the Trust Administrator shall permit the creation of any "interests"
in any Trust REMIC (within the meaning of Section 860G of the Code) other than
the REMIC Regular Interests and the interests represented by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day"
of each REMIC created hereunder within the meaning of Section 860G(a)(9) of the
Code.
(c) The Trust Administrator shall pay out of its own funds,
without any right of reimbursement, any and all expenses relating to any tax
audit of the Trust Fund (including, but not limited to, any professional fees or
any administrative or judicial proceedings with respect to any Trust REMIC that
involve the Internal Revenue Service or state tax authorities), other than the
expense of obtaining any tax related Opinion of Counsel except as specified
herein. The Trust Administrator, as agent for any Trust REMIC's tax matters
person, shall (i) act on behalf of the Trust Fund in relation to any tax matter
or controversy involving any Trust REMIC and (ii) represent the Trust Fund in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The holder of the
largest Percentage Interest of the Residual Certificates shall be designated, in
the manner provided under Treasury regulations section 1.860F-4(d) and Treasury
regulations section 301.6231(a)(7)-1, as the tax matters person of the REMIC
created hereunder. By its acceptance thereof, the holder of the largest
Percentage Interest of the Residual Certificates hereby agrees to irrevocably
appoint the Trust Administrator or an Affiliate as its agent to perform all of
the duties of the tax matters person for the Trust Fund.
(d) The Trust Administrator shall prepare and the Trustee at
the direction of the Trust Administrator shall sign and the Trust Administrator
shall file all of the Tax Returns in respect of the REMIC created hereunder. The
expenses of preparing and filing such returns shall be borne by the Trust
Administrator without any right of reimbursement therefor. The Master Servicer
shall provide on a timely basis to the Trust Administrator or its designee such
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information with respect to the assets of the Trust Fund as is in its possession
and reasonably required by the Trust Administrator to enable it to perform its
obligations under this Article.
(e) The Trust Administrator shall perform on behalf of any
Trust REMIC all reporting and other tax compliance duties that are the
responsibility of the REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority including the filing of Form 8811 with the Internal Revenue
Service within 30 days following the Closing Date. Among its other duties, as
required by the Code, the REMIC Provisions or other such compliance guidance,
the Trust Administrator shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Person who is not a
Permitted Transferee, (ii) to the Certificateholders such information or reports
as are required by the Code or the REMIC Provisions including reports relating
to interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service the
name, title, address and telephone number of the person who will serve as the
representative of any Trust REMIC. The Master Servicer shall provide on a timely
basis to the Trust Administrator such information with respect to the assets of
the Trust Fund, including, without limitation, the Mortgage Loans, as is in its
possession and reasonably required by the Trust Administrator to enable it to
perform its obligations under this subsection. In addition, the Depositor shall
provide or cause to be provided to the Trust Administrator, within ten (10) days
after the Closing Date, all information or data that the Trust Administrator
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumption and projected cash flow of the Certificates.
(f) The Master Servicer, the Trustee and the Trust
Administrator shall take such action and shall cause any Trust REMIC to take
such action as shall be necessary to create or maintain the status thereof as a
REMIC under the REMIC Provisions. The Master Servicer, the Trustee and the Trust
Administrator shall not take any action, cause the Trust Fund to take any action
or fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of any Trust REMIC as a REMIC or (ii) result in the imposition of a tax
upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Trustee and the Trust Administrator
have received an Opinion of Counsel, addressed to the Trustee and the Trust
Administrator (at the expense of the party seeking to take such action but in no
event at the expense of the Trust Administrator or the Trustee) to the effect
that the contemplated action will not, with respect to any Trust REMIC, endanger
such status or result in the imposition of such a tax, nor shall the Master
Servicer take or fail to take any action (whether or not authorized hereunder)
as to which the Trustee or the Trust Administrator has advised it in writing
that it has received an Opinion of Counsel to the effect that an Adverse REMIC
Event could occur with respect to such action. In addition, prior to taking any
action with respect to any Trust REMIC or its assets, or causing any Trust REMIC
to take any action, which is not contemplated under the terms of this Agreement,
the Master Servicer will consult with the Trustee and the Trust Administrator or
their designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any Trust REMIC, and the Master
Servicer shall not take any such action or cause any Trust
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REMIC to take any such action as to which the Trustee or the Trust Administrator
has advised it in writing that an Adverse REMIC Event could occur. The Trust
Administrator and the Trustee may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not permitted by this Agreement, but in no event shall such cost be an
expense of the Trustee or the Trust Administrator. At all times as may be
required by the Code, the Trust Administrator, the Trustee or the Master
Servicer will ensure that substantially all of the assets of any Trust REMIC
will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the
Code and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of the REMIC created hereunder as defined in Section 860F(a)(2) of
the Code, on the "net income from foreclosure property" of the REMIC as defined
in Section 860G(c) of the Code, on any contributions to the REMIC after the
Startup Day therefor pursuant to Section 860G(d) of the Code, or any other tax
is imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Trust Administrator pursuant to Section
10.03 hereof, if such tax arises out of or results from a breach by the Trust
Administrator of any of its obligations under this Article X, (ii) to the
Trustee pursuant to Section 10.03 hereof, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X,
(iii) to the Master Servicer pursuant to Section 10.03 hereof, if such tax
arises out of or results from a breach by the Master Servicer of any of its
obligations under Article III or this Article X, (iv) to the Paying Agent
pursuant to Section 10.03 hereof, if such tax arises out of or results from a
breach by the Paying Agent of any of its obligations under this Article X, or
otherwise (v) against amounts on deposit in the Distribution Account and shall
be paid by withdrawal therefrom.
(h) [Reserved].
(i) The Trust Administrator shall, for federal income tax
purposes, maintain books and records with respect to any Trust REMIC on a
calendar year and on an accrual basis.
(j) Following the Startup Day, the Master Servicer, the
Trustee and the Trust Administrator shall not accept any contributions of assets
to any Trust REMIC other than in connection with any Qualified Substitute
Mortgage Loan delivered in accordance with Section 2.03 unless it shall have
received an Opinion of Counsel to the effect that the inclusion of such assets
in the Trust Fund will not cause the REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding or subject the REMIC to any tax under
the REMIC Provisions or other applicable provisions of federal, state and local
law or ordinances.
(k) None of the Trustee, the Trust Administrator or the Master
Servicer shall enter into any arrangement by which any Trust REMIC will receive
a fee or other compensation for services nor permit either such REMIC to receive
any income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
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SECTION 10.02 Prohibited Transactions and Activities.
None of the Depositor, the Master Servicer, the Trust
Administrator, the Paying Agent or the Trustee shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
foreclosure of a Mortgage Loan, including but not limited to, the acquisition or
sale of a Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the
bankruptcy of any Trust REMIC, (iii) the termination of any Trust REMIC pursuant
to Article IX of this Agreement, (iv) a substitution pursuant to Article II of
this Agreement or (v) a purchase of Mortgage Loans pursuant to Article II or III
of this Agreement), nor acquire any assets for any Trust REMIC (other than REO
Property acquired in respect of a defaulted Mortgage Loan), nor sell or dispose
of any investments in the Collection Account or the Distribution Account for
gain, nor accept any contributions to any Trust REMIC after the Closing Date
(other than a Qualified Substitute Mortgage Loan delivered in accordance with
Section 2.03), unless it has received an Opinion of Counsel, addressed to the
Trustee and the Trust Administrator (at the expense of the party seeking to
cause such sale, disposition, substitution, acquisition or contribution but in
no event at the expense of the Trustee or the Trust Administrator) that such
sale, disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC
to be subject to a tax on "prohibited transactions" or "contributions" pursuant
to the REMIC Provisions.
SECTION 10.03 Master Servicer and Trust Administrator
Indemnification.
(a) The Trust Administrator agrees to indemnify the Trust
Fund, the Depositor, the Master Servicer and the Trustee for any taxes and costs
including, without limitation, any reasonable attorneys fees imposed on or
incurred by the Trust Fund, the Depositor, the Master Servicer or the Trustee as
a result of a breach of the Trust Administrator's covenants set forth in this
Article X.
(b) The Master Servicer agrees to indemnify the Trust Fund,
the Depositor, the Trust Administrator and the Trustee for any taxes and costs
including, without limitation, any reasonable attorneys' fees imposed on or
incurred by the Trust Fund, the Depositor, the Trust Administrator or the
Trustee, as a result of a breach of the Master Servicer's covenants set forth in
Article III or this Article X.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Trustee, the Paying Agent, the Certificate
Registrar, the Authenticating Agent and the Trust Administrator without the
consent of any of the Certificateholders, (i) to cure any ambiguity or defect,
(ii) to correct, modify or supplement any provisions herein (including to give
effect to the expectations of Certificateholders) or (iii) to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement, provided
that such action shall not, as evidenced by an Opinion of Counsel delivered to
the Trustee and the Trust Administrator, adversely affect in any material
respect the interests of any Certificateholder. No amendment shall be deemed to
adversely affect in any material respect the interests of any Certificateholder
who shall have consented thereto, and no Opinion of Counsel shall be required to
address the effect of any such amendment on any such consenting
Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Trustee, the Paying Agent, the Certificate
Registrar, the Authenticating Agent and the Trust Administrator with the consent
of the Holders of Certificates entitled to at least 66% of the Voting Rights for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Holders of Certificates; provided, however, that no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner, other than as described in (i), without the
consent of the Holders of Certificates of such Class evidencing at least 66% of
the Voting Rights allocated to such Class, or (iii) modify the consents required
by the immediately preceding clauses (i) and (ii) without the consent of the
Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or the Master Servicer or any Affiliate thereof shall be entitled
to Voting Rights with respect to matters affecting such Certificates.
Notwithstanding any contrary provision of this Agreement, the
Trust Administrator shall not consent to any amendment to this Agreement unless
it shall have first received an Opinion of Counsel to the effect that such
amendment will not result in the imposition of any tax on any Trust REMIC
pursuant to the REMIC Provisions or cause any Trust REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding.
Prior to executing any amendment pursuant to this Section, the
Trust Administrator shall be entitled to receive an Opinion of Counsel (provided
by the Person
135
requesting such amendment) to the effect that such amendment is authorized or
permitted by this Agreement.
Promptly after the execution of any such amendment the Trust
Administrator shall furnish a copy of such amendment to each Certificateholder.
It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trust Administrator may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to
this Section 11.01 shall be borne by the Person seeking the related amendment,
but in no event shall such Opinion of Counsel be an expense of the Trustee or
the Trust Administrator.
Notwithstanding the foregoing, each of the Trustee, the Paying
Agent, the Certificate Registrar, the Authenticating Agent and Trust
Administrator may, but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
SECTION 11.02 Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Certificateholders, but
only upon direction of Certificateholders accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of any of the
Certificates, be construed so as to constitute the Certificateholders from time
to
136
time as partners or members of an association; nor shall any Certificateholder
be under any liability to any third person by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless (i)
such Holder previously shall have given to the Trustee a written notice of
default and of the continuance thereof, as hereinbefore provided, and (ii) the
Holders of Certificates entitled to at least 25% of the Voting Rights shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 15 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 11.04 Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 11.05 Notices.
All directions, demands and notices hereunder shall be sent
(i) via facsimile (with confirmation of receipt) or (ii) in writing and shall be
deemed to have been duly given when received if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service or
delivered in any other manner specified herein, to (a) in the case of the
Depositor, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Finance Group (telecopy number (000) 000-0000), or such other address or
telecopy number as may hereafter be furnished to the Master Servicer, the Trust
Administrator, the Paying Agent, the Certificate Registrar, the Authenticating
Agent and the Trustee in writing by the Depositor, (b) in the case of the Master
Servicer, Master Servicing Division, 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX
00000, Attention: Compliance Manager (telecopy number 972-770-3705) (with a copy
to, 0000 Xxxxxxxxxx Xxxxx, X'Xxxxxx, XX 00000, Attention: Chief Legal Counsel
(telecopy number 636-261-6518)) or such other address or telecopy number as may
hereafter be furnished to the Trustee, the Trust Administrator, the Paying
Agent, the Certificate Registrar, the Authenticating Agent and the Depositor in
writing by the Master Servicer, (c) in the case of the Trust Administrator, 0000
Xxxxxxxxxx Xxxxx, X.X. 000, X'Xxxxxx, Xxxxxxxx 00000, Attention: Mortgage
Finance (telecopy number (000) 000-0000), or such other address or telecopy
number
137
as may hereafter be furnished to the Trustee, the Trust Administrator, the
Paying Agent, the Certificate Registrar, the Authenticating Agent and the
Depositor in writing by the Master Servicer (d) in the case of the Paying Agent,
the Authenticating Agent and the Certificate Registrar, 000 Xxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Citibank Agency & Trust, CMLTI
2005-WF1, (telephone number (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the Master Servicer, the Depositor, the
Trust Administrator and the Trustee in writing by the Paying Agent, the
Certificate Registrar or the Authenticating Agent and (e) in the case of the
Trustee, U.S. Bank National Association, Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Services (telecopy number (617)
603-6638), or such other address or telecopy number as may hereafter be
furnished to the Master Servicer, the Trust Administrator, the Paying Agent, the
Certificate Registrar, the Authenticating Agent and the Depositor in writing by
the Trustee. Any notice required or permitted to be given to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice. A copy of any notice required to be telecopied hereunder also shall be
mailed to the appropriate party in the manner set forth above.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Notice to Rating Agencies.
The Trust Administrator shall use its best efforts promptly to
provide notice to the Rating Agencies, and each of the Master Servicer and the
Paying Agent shall use its best efforts promptly to provide notice to the Trust
Administrator, with respect to each of the following of which the Trust
Administrator, the Master Servicer or the Paying Agent, as applicable, has
actual knowledge:
1. Any material change or amendment to this
Agreement;
2. The occurrence of any Master Servicer Event of
Default that has not been cured or waived;
3. The resignation or termination of the Master
Servicer, the Trust Administrator, the Paying Agent, the
Certificate Registrar, the Authenticating Agent or the
Trustee;
4. The repurchase or substitution of Mortgage Loans
pursuant to or as contemplated by Section 2.03;
5. The final payment to the Holders of any Class of
Certificates;
138
6. Any change in the location of the Collection
Account or the Distribution Account;
7. Any event that would result in the inability of
the Trustee, were it to succeed as Master Servicer, to make
advances regarding delinquent Mortgage Loans; and
8. The filing of any claim under the Master
Servicer's blanket bond and errors and omissions insurance
policy required by Section 3.14 or the cancellation or
material modification of coverage under any such instrument.
In addition, the Trust Administrator shall make available to
the Rating Agencies copies of each report to Certificateholders described in
Section 4.02 and the Master Servicer, as required pursuant to Section 3.20 and
Section 3.21, shall promptly furnish to the Rating Agencies copies of the
following:
1. Each annual statement as to compliance described
in Section 3.20; and
2. Each annual independent public accountants'
servicing report described in Section 3.21.
Any such notice pursuant to this Section 11.07 shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
to Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to Dominion Bond Rating
Servicers, Inc. 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to Xxxxx'x at 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the Rating
Agencies may designate in writing to the parties hereto.
SECTION 11.08 Article and Section References.
All article and section references used in this Agreement,
unless otherwise provided, are to articles and sections in this Agreement.
SECTION 11.09 Grant of Security Interest.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Depositor to the Trustee be, and be
construed as, a sale of the Mortgage Loans by the Depositor and not a pledge of
the Mortgage Loans by the Depositor to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Depositor,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt
or other obligation of the Depositor and (b)(1) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
Uniform Commercial Code as in effect from time to time in the State of New York;
(2) the conveyance provided for in Section 2.01 hereof shall be deemed to be a
grant by the Depositor to the Trustee of a security interest in all of the
Depositor's right, title and interest in
139
and to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Collection Account and the
Distribution Account, whether in the form of cash, instruments, securities or
other property; (3) the obligations secured by such security agreement shall be
deemed to be all of the Depositor's obligations under this Agreement, including
the obligation to provide to the Certificateholders the benefits of this
Agreement relating to the Mortgage Loans and the Trust Fund; and (4)
notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Accordingly, the
Depositor hereby grants to the Trustee a security interest in the Mortgage Loans
and all other property described in clause (2) of the preceding sentence, for
the purpose of securing to the Trustee the performance by the Depositor of the
obligations described in clause (3) of the preceding sentence. Notwithstanding
the foregoing, the parties hereto intend the conveyance pursuant to Section 2.01
to be a true, absolute and unconditional sale of the Mortgage Loans and assets
constituting the Trust Fund by the Depositor to the Trustee.
140
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Trust Administrator, the Paying Agent, the Authenticating Agent, the Certificate
Registrar and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized, in each case as of the day and
year first above written.
CITIGROUP MORTGAGE LOAN TRUST INC.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
CITIMORTGAGE, INC.,
as Master Servicer and Trust
Administrator
By: /s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
CITIBANK, N.A.,
as Paying Agent, Certificate Registrar
and Authenticating Agent
By: /s/Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee
By: /s/Xxxxxx X Xxxxxx Xx.
-------------------------------------
Name: Xxxxxx X Xxxxxx Xx.
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of March 2005, before me, a notary public in
and for said State, personally appeared ___________________, known to me to be
an ______________________ of Citigroup Mortgage Loan Trust Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________
Notary Public
[Notarial Seal]
STATE OF ______________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of March 2005, before me, a notary public in
and for said State, personally appeared ______________, known to me to be a
________________ of CitiMortgage, Inc., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of March 2005, before me, a notary public in
and for said State, personally appeared _____________________, known to me to be
an ____________________ of Citibank, N.A., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________
Notary Public
[Notarial Seal]
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of March 2005, before me, a notary public in
and for said State, personally appeared ____________________, known to me to be
a ____________________ of U.S. Bank National Association, one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
________________________________
Notary Public
[Notarial Seal]
CLASS A-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class A-1
Certificates as of the Issue Date: $160,000,000.00
Pass-Through Rate: Variable
Denomination: $160,000,000.00
Cut-off Date and date of Pooling and Servicing
Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No. 1 Certificate Registrar, Paying Agent and Authenticating
Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PB 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-1 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A., the Trustee nor any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2005-WF1
CITIBANK, N.A., not in its
individual capacity, but solely as
Authenticating Agent
By:____________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number ____________________________,
or, if mailed by check, to______________________________________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
_______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS A-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
Series 2005-WF1 Aggregate Certificate Principal Balance of
the Class A-2 Certificates as of the Issue Date:
Pass-Through Rate: 4.49% per annum $91,000,000.00
Denomination: $91,000,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
Trust Administrator: CitiMortgage, Inc.
First Distribution Date: March 25, 2005
Certificate Registrar, Paying Agent and
No. 1 Authenticating Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PC 6
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-2 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A., the Trustee nor any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS A-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class
A-3 Certificates as of the Issue Date: $38,900,000.00
Pass-Through Rate: 5.00% per annum
Denomination: $38,900,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No.1 Certificate Registrar, Paying Agent and Authenticating
Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PD 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-3 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A., the Trustee nor any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS A-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class
A-4 Certificates as of the Issue Date: $59,349,900.00
Pass-Through Rate: Variable
Denomination: $59,349,900.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No.1 Certificate Registrar, Paying Agent and Authenticating
Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PE 2
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-4 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-4 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A., the Trustee nor any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS A-5 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class
A-5 Certificates as of the Issue Date: $41,500,000.00
Pass-Through Rate: 5.01% per annum
Denomination: $41,500,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No.1 Certificate Registrar, Paying Agent and Authenticating
Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PF 9
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-5 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-5 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-5 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A., the Trustee nor any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS M-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class
M-1 Certificates as of the Issue Date: $9,135,600.00
Pass-Through Rate: Variable
Denomination: $9,135,600.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No. 1 Certificate Registrar, Paying Agent and
Authenticating Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PG 7
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-1 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate to a Plan subject to ERISA or
section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(b) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee nor any such agent shall be affected by notice to
the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS M-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND
THE CLASS M-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class
M-2 Certificates as of the Issue Date: $8,097,400.00
Pass-Through Rate: Variable
Denomination: $8,097,400.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No. 1 Certificate Registrar, Paying Agent and Authenticating
Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PH 5
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN
ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-2 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate to a Plan subject to ERISA or
section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(b) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee nor any such agent shall be affected by notice to
the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS M-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES,
THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class
M-3 Certificates as of the Issue Date: $5,190,700.00
Pass-Through Rate: Variable
Denomination: $5,190,700.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No. 1 Certificate Registrar, Paying Agent and Authenticating
Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PJ 1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-3 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate to a Plan subject to ERISA or section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any Person using "Plan Assets" to acquire this Certificate shall be
made except in accordance with Section 5.02(b) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee nor any such agent shall be affected by notice to
the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS M-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES,
THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE
CLASS M-3 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2005-WF1 Aggregate Certificate Principal Balance of the Class
M-4 Certificates as of the Issue Date: $2,076,172.00
Pass-Through Rate: Variable
Denomination:$2,076,172.00
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005 Trust Administrator: CitiMortgage, Inc.
No. 1 Certificate Registrar, Paying Agent and Authenticating
Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 17307G PK 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN
ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-4 Certificates in the REMIC created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trust Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-4 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders, under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate to a Plan subject to ERISA or
section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(b) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee nor any such agent shall be affected by notice to
the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in the REMIC and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from the REMIC of
all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the REMIC all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS CE CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES,
AND THE MEZZANINE CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series: 2005-WF1 Aggregate Certificate Principal
Balance of the Class CE Certificates
Pass-Through Rate: Variable as of the Issue Date: $0.53
Cut-off Date and date of Pooling and Denomination: $0.53
Servicing Agreement: February 1, 2005
Master Servicer: CitiMortgage, Inc.
First Distribution Date: March 25, 2005
Trust Administrator: CitiMortgage,
No. 1 Inc.
Aggregate Notional Amount of the Class Certificate Registrar, Paying Agent
CE Certificates as of the Issue Date: and Authenticating Agent: Citibank,
$415,249,872.53 N.A.
Notional Amount: $415,249,872.53 Trustee: U.S. Bank National
Association
Issue Date: March 7, 2005
CUSIP: 0000000x0
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE OR NOTIONAL
AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN
ABOVE AS THE INITIAL CERTIFICATE PRINCIPAL BALANCE OR NOTIONAL
AMOUNT, AS THE CASE MAY BE, OF THIS CERTIFICATE.
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first lien and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that U.S. Bank National Association, as
Indenture Trustee under the Indenture, dated as of March 7, 2005, relating to SB
Finance NIM Trust 2005-WFN1 Notes, Series 2005-WFN1, is the registered owner of
a Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class CE Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class CE Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, Trust
Administrator, Citibank, N.A. and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date or otherwise by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Paying Agent of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Paying Agent for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is
made in a transaction that does not require such registration or qualification.
In the event that such a transfer of this Certificate is to be made without
registration or qualification, the Certificate Registrar shall require receipt
of (i) if such transfer is purportedly being made in reliance upon Rule 144A
under the 1933 Act, written certifications from the Holder of the Certificate
desiring to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the
Trust Administrator, the Certificate Registrar, the Paying Agent, the
Authenticating Agent or the Master Servicer in their respective capacities as
such), together with copies of the written certification(s) of the Holder of the
Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Depositor or
the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Depositor, the Certificate Registrar,
the Paying Agent, the Authenticating Agent, the Master Servicer and any
Sub-Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee nor any such agent shall be affected by notice to
the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and
REO Property remaining in REMIC I and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement from REMIC I
of all the Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March___, 2005
CITIBANK, N.A., as Paying Agent
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By: ______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series: 2005-WF1 Aggregate Certificate Principal Balance of
the Class P Certificates as of the Issue Date:
Cut-off Date and date of Pooling and $100.00
Servicing Agreement: February 1, 2005
Denomination: $100.00
First Distribution Date: March 25, 2005
Master Servicer: CitiMortgage, Inc.
No. 1 Trust Administrator: CitiMortgage, Inc.
Certificate Registrar, Paying Agent and
Authenticating Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 0000000X0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first lien and second lien mortgage loans (the "Mortgage
Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, CITIBANK, N.A., THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that U.S. Bank National Association, as
Indenture Trustee under the Indenture, dated as of March 7, 2005, relating to SB
Finance NIM Trust 2005-WFN1 Notes, Series 2005-WFN1 is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class P Certificates as of
the Issue Date) in that certain beneficial ownership interest evidenced by all
the Class P Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Citigroup Mortgage
Loan Trust Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement), the Master Servicer and the Trustee, a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Paying Agent by wire transfer
in immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Paying Agent in writing at least five
Business Days prior to the Record Date immediately prior to such
Distribution Date or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Paying Agent of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Paying Agent for that
purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified above in the Class of Certificates to which
the Certificate belongs.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A. and the Trustee and the rights of the Certificateholders under
the Agreement at any time by the Depositor, the Master Servicer, the Trust
Administrator, Citibank, N.A. and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Certificate Registrar as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Certificate Registrar shall require receipt
of (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the 1933 Act, written certifications from the
Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee, the Trust Administrator, the Certificate
Registrar, the Paying Agent, the Authenticating Agent or the Master Servicer in
their respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor or the Trustee is obligated to register
or qualify the Class of Certificates specified on the face hereof under the 1933
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Trust Administrator,
the Depositor, the Certificate Registrar, the Paying Agent, the Authenticating
Agent, the Master Servicer and any Sub-Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee and any agent of the Depositor, the Master Servicer,
the Trust Administrator, Citibank, N.A. or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trust Administrator,
Citibank, N.A., the Trustee nor any such agent shall be affected by notice to
the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC I all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March___, 2005
CITIBANK, N.A., as Paying Agent
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By: ______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN
AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1)
THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE
REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF
A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER
IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO
THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO
BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND
THE PROVISIONS OF SECTION 5.02(D) OF THE AGREEMENT REFERRED TO
HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS
CERTIFICATE.
Series 2005-WF1 Aggregate Percentage Interest of the Class R
Certificates as of the Issue Date: 100%
Cut-off Date and date of Pooling and
Servicing Agreement: February 1, 2005 Denomination: $100.00
First Distribution Date: March 25, 2005 Master Servicer: CitiMortgage, N.A.
No. 1 Trust Administrator: CitiMortgage, N.A.
Certificate Registrar, Paying Agent and
Authenticating Agent: Citibank, N.A.
Trustee: U.S. Bank National Association
Issue Date: March 7, 2005
CUSIP: 0000000X0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE TRUST ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
R Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class R Certificates created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
Citigroup Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trust Administrator by wire
transfer in immediately available funds to the account of the Person entitled
thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset-Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trust Administrator, the
Trustee, and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer, the Trust Adminstrator and the
Trustee with the consent of the Holders of Certificates entitled to at least 66%
of the Voting Rights. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trust Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Trust Administrator duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is made in reliance upon Rule 144A under the 1933 Act (as
evidenced by the investment letter delivered to the Trust Administrator, in
substantially the form of the Form of Rule 144A Investment Letter included as
part of Exhibit F to the Agreement), the Trust Administrator and the Depositor
shall require a written Opinion of Counsel (which may be in-house counsel)
acceptable to and in form and substance reasonably satisfactory to the Trust
Administrator and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall not be an expense of the Trust Administrator or the Depositor or (ii) the
Trust Administrator shall require the transferor to execute a transferor
certificate (in substantially the form attached as Exhibit G to the Agreement)
and the transferee to execute an investment letter (in substantially the form
attached as Exhibit F to the Agreement) acceptable to and in form and substance
reasonably satisfactory to the Depositor and the Trust Administrator certifying
to the Depositor and the Trust Administrator the facts surrounding such
transfer, which transferor certificate and investment letter shall not be an
expense of the Trust Administrator or the Depositor. None of the Depositor, the
Trust Administrator or the Trustee is obligated to register or qualify the Class
of Certificates specified on the face hereof under the 1933 Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Trust Administrator, the
Depositor and the Master Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trust Administrator (i) an affidavit to the effect that such transferee is any
Person other than a Disqualified Organization or the agent (including a broker,
nominee or middleman) of a Disqualified Organization, and (ii) a certificate
that acknowledges that (A) the Class R Certificates have been designated as a
residual interest in REMIC I and REMIC II, (B) it will include in its income a
pro rata share of the net income of the Trust Fund and that such income may be
an "excess inclusion," as defined in the Code, that, with certain exceptions,
cannot be offset by other losses or benefits from any tax exemption, and (C) it
expects to have the financial means to satisfy all of its tax obligations
including those relating to
holding the Class R Certificates. Notwithstanding the registration in the
Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall be
deemed to be of no legal force or effect whatsoever and such Person shall not be
deemed to be a Certificateholder for any purpose, including, but not limited to,
the receipt of distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon REMIC
I or REMIC II.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trust Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trust Administrator,
the Trustee and any agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trust Administrator, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the purchase by the Master Servicer of
all Mortgage Loans and related REO Property remaining in REMIC I, (ii) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I. The Agreement permits, but
does not require, the party designated in the Agreement to purchase from REMIC I
all the Mortgage Loans and all property acquired in respect of any Mortgage Loan
at a price determined as provided in the Agreement. The exercise of such right
will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Loans at the time of purchase being less than 5% of the aggregate principal
balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and none of the Trustee, Master Servicer or Trust Administrator
assume responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Paying Agent has caused this
Certificate to be duly executed.
Dated: March ____, 2005
CITIBANK, N.A. as Paying Agent
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIGROUP MORTGAGE LOAN TRUST INC.
ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
CITIBANK, N.A., not in its individual
capacity, but solely as Authenticating
Agent
By:______________________________
Authorized Officer
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right Minors Act
if survivorship and not as ______________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________ for the account
of _______________________________, account number_____________________________,
or, if mailed by check, to _____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
______________________________________________________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
EXHIBIT B
[RESERVED]
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
D-1
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement"), dated
March 3, 2005, between Citigroup Mortgage Loan Trust Inc., a Delaware
corporation (the "Purchaser") and Citigroup Global Markets Realty Corp., a New
York corporation (the "Seller").
PRELIMINARY STATEMENT
The Seller intends to sell the Mortgage Loans (as hereinafter defined)
to the Purchaser on the terms and subject to the conditions set forth in this
Agreement. The Purchaser intends to deposit the Mortgage Loans into a mortgage
pool comprising the trust fund. The trust fund will be evidenced by a single
series of asset-backed pass-through certificates designated as Series 2005-WF1
(the "Certificates"). The Certificates will consist of 12 classes of
certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of February 1, 2005 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, CitiMortgage, Inc. as master
servicer (in such capacity, the "Master Servicer") and as trust administrator
(in such capacity, the "Trust Administrator"), Citibank, N.A. as paying agent,
certificate registrar and authenticating agent and U.S. Bank Trust National
Association as trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Pooling and Servicing Agreement.
The parties hereto agree as follows:
SECTION 1. AGREEMENT TO PURCHASE. The Seller agrees to sell, and the
Purchaser agrees to purchase, on or before March 7, 2005 (the "Closing Date"),
certain fixed-rate, conventional residential mortgage loans (the "Mortgage
Loans") originated by Xxxxx Fargo Bank, N.A. ("Xxxxx" or the "Originator" or the
"Servicer"), having an aggregate principal balance as of the close of business
on February 1, 2005 (the "Cut-off Date") of $415,249,873.53 (the "Closing
Balance"), after giving effect to all payments due on the Mortgage Loans on or
before the Cut-off Date, whether or not received.
SECTION 2. MORTGAGE LOAN SCHEDULE. The Purchaser and the Seller have
agreed upon which of the mortgage loans owned by the Seller are to be purchased
by the Purchaser pursuant to this Agreement and the Seller will prepare or cause
to be prepared on or prior to the Closing Date a final schedule (the "Closing
Schedule") that together shall describe such Mortgage Loans and set forth all of
the Mortgage Loans to be purchased under this Agreement. The Closing Schedule
will conform to the requirements set forth in this Agreement and to the
definition of "Mortgage Loan Schedule" under the Pooling and Servicing
Agreement. The Closing Schedule shall be used as the Mortgage Loan Schedule
under the Pooling and Servicing Agreement and shall be prepared by the Seller
based on information provided by the Originator.
SECTION 3. CONSIDERATION.
(a) In consideration of the sale of the Mortgage Loans from the Seller
to the Purchaser on the Closing Date, the Purchaser agrees to pay to the Seller
on the Closing Date (the "Mortgage Loan Purchase Price") for the Mortgage Loans
(i) transfer to the Seller or its designee of immediately available funds in an
amount equal to the net sale proceeds of the Class A
Certificates, the Mezzanine Certificates and the Class R Certificates and (ii)
delivery to the Seller or its designee of the Class CE Certificates and the
Class P Certificates (collectively the "Retained Certificates") which Retained
Certificates shall be registered in the name of Citigroup Global Markets Realty
Corp. or its designee.
(b) The Purchaser or any assignee, transferee or designee of the
Purchaser shall be entitled to all scheduled payments of principal due after the
Cut-off Date, all other payments of principal due and collected after the
Cut-off Date, and all payments of interest on the Mortgage Loans allocable to
the period after the Cut-off Date. All scheduled payments of principal and
interest due on or before the Cut-off Date and collected after the Cut-off Date
shall belong to the Seller.
(c) Pursuant to the Pooling and Servicing Agreement, the Purchaser will
assign all of its right, title and interest in and to the Mortgage Loans,
together with its rights under this Agreement, to the Trustee for the benefit of
the related Certificateholders.
SECTION 4. TRANSFER OF THE MORTGAGE LOANS.
(a) POSSESSION OF MORTGAGE FILES. The Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse but
subject to the terms of this Agreement, all of its right, title and interest in,
to and under the Mortgage Loans. The contents of each Mortgage File not
delivered to the Purchaser or to any assignee, transferee or designee of the
Purchaser on or prior to the Closing Date are and shall be held in trust by the
Seller for the benefit of the Purchaser or any assignee, transferee or designee
of the Purchaser. Upon the sale of the Mortgage Loans, the ownership of each
Mortgage Note, the related Mortgage and the other contents of the related
Mortgage File is vested in the Purchaser and the ownership of all records and
documents with respect to the related Mortgage Loan prepared by or that come
into the possession of the Seller on or after the Closing Date shall immediately
vest in the Purchaser and shall be delivered immediately to the Purchaser or as
otherwise directed by the Purchaser.
(b) DELIVERY OF MORTGAGE LOAN DOCUMENTS. The Seller will, on or prior
to the Closing Date, deliver or cause to be delivered to the Purchaser or any
assignee, transferee or designee of the Purchaser each of the following
documents for each Mortgage Loan:
(i) the original Mortgage Note, endorsed in one of the
following forms: (i) in the name of the Trustee or (ii) in blank, in
each case, with all prior and intervening endorsements showing a
complete chain of endorsement from the originator to the Person so
endorsing to the Trustee;
(ii) the original Mortgage with evidence of recording thereon;
(iii) an original Assignment of the Mortgage in recordable
form in blank or to the Trustee;
(iv) the original recorded Assignment or Assignments of the
Mortgage showing a complete chain of assignment from the originator to
the Person assigning the Mortgage in blank or to the Trustee as
contemplated by the immediately preceding clause (iii);
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(v) the original of or a copy of each related assumption,
modification, consolidation or extension agreement, with evidence of
recording thereon, if any;
(vi) with respect to any Mortgage Loan listed on the Mortgage
Loan Schedule as subject to a Primary Mortgage Insurance Policy, the
original Primary Mortgage Insurance Policy or certificate;
(vii) the original mortgagee title insurance policy or an
attorney's opinion of title where customary; and
(viii) any of the following that are in the possession of the
Seller or a document custodian on its behalf: (A) the original of or a
copy of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage or (B) the original of or a
copy of any power of attorney, if applicable.
With respect to a maximum of approximately 5.00% of the Original
Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans
as of the Cut-off Date, if any original Mortgage Note referred to in Section
4(b)(i) above cannot be located, the obligations of the Seller to deliver such
documents shall be deemed to be satisfied upon delivery to the Trustee or a
Custodian on its behalf (as designee of the Purchaser) of a photocopy of such
Mortgage Note, if available, with a lost note affidavit. If any of the original
Mortgage Notes for which a lost note affidavit was delivered to the Trustee or a
Custodian on its behalf is subsequently located, such original Mortgage Note
shall be delivered to the Trustee or a Custodian on its behalf within three
Business Days.
If any of the documents referred to in Sections 4(b)(ii), (iii) or (iv)
above has as of the Closing Date been submitted for recording but either (x) has
not been returned from the applicable public recording office or (y) has been
lost or such public recording office has retained the original of such document,
the obligations of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee or a Custodian on its behalf of a
copy of each such document certified by the Originator in the case of (x) above
or the applicable public recording office in the case of (y) above to be a true
and complete copy of the original that was submitted for recording and (2) if
such copy is certified by the Originator, delivery to the Trustee or a Custodian
on its behalf promptly upon receipt thereof of either the original or a copy of
such document certified by the applicable public recording office to be a true
and complete copy of the original.
To the extent not already recorded, the Master Servicer, at the expense
of the Seller shall pursuant to the Pooling and Servicing Agreement promptly
(and in no event later than three months following the later of the Closing Date
and the date of receipt by the Trust Administrator of the recording information
for a Mortgage) submit or cause to be submitted for recording, at no expense to
the Trust Fund or the Master Servicer, in the appropriate public office for real
property records, each Assignment delivered to it pursuant to Sections 4(b)(iii)
and (iv) above. In the event that any such Assignment is lost or returned
unrecorded because of a defect therein, the Master Servicer, at the expense of
the Seller, shall promptly prepare or cause to be prepared a substitute
Assignment or cure or cause to be cured such defect, as the case may be,
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and thereafter cause each such Assignment to be duly recorded. Notwithstanding
the foregoing, but without limiting the requirement that such Assignments be in
recordable form, neither the Master Servicer nor the Trustee shall be required
to submit or cause to be submitted for recording each Assignment delivered to it
or a Custodian pursuant to Sections 4(b)(iii) and (iv) if such recordation shall
not, as of the Closing Date, be required by the Rating Agencies, as a condition
to their assignment on the Closing Date of their initial ratings to the
Certificates, as evidenced by the delivery by the Rating Agencies of their
ratings letters on the Closing Date; provided, however, notwithstanding the
foregoing, the Master Servicer shall submit each Assignment for recording, at no
expense to the Trust Fund or the Master Servicer, upon the earliest to occur of:
(A) reasonable direction by Holders of Certificates entitled to at least 25% of
the Voting Rights, (B) the occurrence of a Master Servicer Event of Termination,
(C) the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Seller, (D) the occurrence of a servicing transfer as described in Section 7.02
of the Pooling and Servicing Agreement and (E) with respect to any one
Assignment the occurrence of a foreclosure relating to the Mortgagor under the
related Mortgage. The Seller agrees to pay the cost of any recordation required
to be effected by the Master Servicer pursuant to the Pooling and Servicing
Agreement to the extent contemplated by this paragraph.
The Seller shall deliver or cause to be delivered to the Trustee or a
Custodian on its behalf promptly upon receipt thereof any other original
documents constituting a part of a Mortgage File received with respect to any
Mortgage Loan, including, but not limited to, any original documents evidencing
an assumption, modification, consolidation or extension of any Mortgage Loan.
All original documents relating to the Mortgage Loans that are not
delivered to the Trustee or a Custodian on its behalf are and shall be held by
or on behalf of the Seller, the Servicer, the Purchaser or the Master Servicer,
as the case may be, in trust for the benefit of the Trustee on behalf of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Trustee or a Custodian on its
behalf. Any such original document delivered to or held by the Seller or the
Purchaser that is not required pursuant to the terms of this Section to be a
part of a Mortgage File, shall be delivered promptly to the related Servicer.
(c) ACCEPTANCE OF MORTGAGE LOANS. The documents delivered pursuant to
Section 4(b) hereof shall be reviewed by the Purchaser or any assignee,
transferee or designee of the Purchaser at any time before or after the Closing
Date (and with respect to each document permitted to be delivered after the
Closing Date within seven days of its delivery) to ascertain that all required
documents have been executed and received and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule.
(d) TRANSFER OF INTEREST IN AGREEMENTS. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, to the Trustee,
as may be required to effect the purposes of the Pooling and Servicing
Agreement, without the consent of the Seller, and the assignee shall succeed to
the rights and obligations hereunder of the Purchaser. Any expense reasonably
incurred by or on behalf of the Purchaser or the Trustee in connection with
enforcing any obligations of the Seller under this Agreement will be promptly
reimbursed by the Seller.
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(e) EXAMINATION OF MORTGAGE FILES. Prior to the Closing Date, the
Seller shall either (i) deliver in escrow to the Purchaser or to any assignee,
transferee or designee of the Purchaser, for examination, the Mortgage File
pertaining to each Mortgage Loan, or (ii) make such Mortgage Files available to
the Purchaser or to any assignee, transferee or designee of the Purchaser for
examination. Such examination may be made by the Purchaser or the Trustee, and
their respective designees, upon reasonable notice to the Seller during normal
business hours before the Closing Date and within 60 days after the Closing
Date. If any such person makes such examination prior to the Closing Date and
identifies any Mortgage Loans that do not conform to the requirements of the
Purchaser as described in this Agreement, such Mortgage Loans shall be deleted
from the Closing Schedule. The Purchaser may, at its option and without notice
to the Seller, purchase all or part of the Mortgage Loans without conducting any
partial or complete examination. The fact that the Purchaser or any person has
conducted or has failed to conduct any partial or complete examination of the
Mortgage Files shall not affect the rights of the Purchaser or any assignee,
transferee or designee of the Purchaser to demand repurchase or other relief as
provided herein or under the Pooling and Servicing Agreement.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER.
The Seller and the Purchaser understand, acknowledge and agree that,
the representations and warranties set forth in this Section 5 are made as of
the Closing Date or as of the date specifically provided herein.
As permitted the Seller's Warranties and Servicing Agreement
(the "Servicing Agreement") dated as of November 1, 2004, between Xxxxx and the
Seller, the Seller hereby assigns to the Purchaser all of its right, title and
interest under the Servicing Agreement to the extent of the Mortgage Loans set
forth on the Mortgage Loan Schedule, including, but not limited to, any
representations and warranties of the Originators concerning the Mortgage Loans.
(a) The Seller hereby represents and warrants, as to each Mortgage
Loan, to the Purchaser, as of the date hereof and as of the Closing Date, and
covenants, that:
(i) To the best of the Seller's knowledge, nothing has
occurred in the period of time from the date each representation and
warranty was made by the Originator pursuant to the Servicing Agreement
to the Closing Date (other than delinquencies and pay histories shown
on the Mortgage Loan Schedule) which would cause such representation
and warranty to be untrue in any material respect on the Closing Date.
(ii) Each Mortgage Loan at the time it was made complied in
all material respects with applicable local, state and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
(iii) None of the mortgage loans are (i) "High Cost" as such
term is defined in the Home Ownership Protection Act of 1994 ("HOEPA")
or (ii) a reasonably equivalent provision as defined by the applicable
predatory and abusive lending laws.
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(iv) An appraisal form 1004 or Form 2055 with an interior
inspection for first lien mortgage loans has been obtained.
(v) No Mortgage Loan is a high cost loan or a covered loan, as
applicable (as such terms are defined in Standard & Poor's LEVELS
Version 5.6b Glossary Revised, Appendix E).
(vi) There is no mortgage loan in the trust that was
originated on or after October 1, 2002 and before March 7, 2003 which
is secured by property located in the State of Georgia.
(vii) With respect to each Mortgage Loan that has a Prepayment
Charge, each such Prepayment Charge shall be enforceable and will be
enforced by the Servicer for the benefit of the Purchaser, and each
Prepayment Charge shall be permitted pursuant to federal, state and
local law. Each such Prepayment Charge is in an amount equal to the
maximum amount permitted under applicable law and no such Prepayment
Charge may be imposed for a term in excess of five (5) years with
respect to Mortgage Loans originated on or after October 1, 2002."
(b) The Seller hereby represents and warrants to the Purchaser, as of
the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good
standing as a corporation under the laws of the State of New York with
full corporate power and authority to conduct its business as presently
conducted by it to the extent material to the consummation of the
transactions contemplated herein. The Seller has the full corporate
power and authority to own the Mortgage Loans and to transfer and
convey the Mortgage Loans to the Purchaser and has the full corporate
power and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of
this Agreement.
(ii) The Seller has duly authorized the execution, delivery
and performance of this Agreement, has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution
and delivery hereof by the Purchaser, constitutes a legal, valid and
binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization or by general principles of
equity.
(iii) The execution, delivery and performance of this
Agreement by the Seller (x) does not conflict and will not conflict
with, does not breach and will not result in a breach of and does not
constitute and will not constitute a default (or an event, which with
notice or lapse of time or both, would constitute a default) under (A)
any terms or provisions of the articles of incorporation or by-laws of
the Seller, (B) any term or provision of any material agreement,
contract, instrument or indenture, to which the Seller is a party or by
which the Seller or
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any of its property is bound or (C) any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Seller or any of its property
and (y) does not create or impose and will not result in the creation
or imposition of any lien, charge or encumbrance which would have a
material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans.
(iv) No consent, approval, authorization or order of,
registration or filing with, or notice on behalf of the Seller to any
governmental authority or court is required, under federal laws or the
laws of the State of New York, for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation by the Seller of any other transaction
contemplated hereby and by the Pooling and Servicing Agreement;
provided, however, that the Seller makes no representation or warranty
regarding federal or state securities laws in connection with the sale
or distribution of the Certificates.
(v) This Agreement does not contain any untrue statement of
material fact or omit to state a material fact necessary to make the
statements contained herein not misleading. The written statements,
reports and other documents prepared and furnished or to be prepared
and furnished by the Seller pursuant to this Agreement or in connection
with the transactions contemplated hereby taken in the aggregate do not
contain any untrue statement of material fact or omit to state a
material fact necessary to make the statements contained therein not
misleading.
(vi) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of the
Seller or its assets or might have consequences that would materially
and adversely affect the performance of its obligations and duties
hereunder.
(vii) The Seller does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in this Agreement.
(viii) Immediately prior to the sale of the Mortgage Loans to
the Purchaser as herein contemplated, the Seller will be the owner of
the related Mortgage and the indebtedness evidenced by the related
Mortgage Note, and, upon the payment to the Seller of the Purchase
Price, in the event that the Seller retains or has retained record
title, the Seller shall retain such record title to each Mortgage, each
related Mortgage Note and the related Mortgage Files with respect
thereto in trust for the Purchaser as the owner thereof from and after
the date hereof.
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(ix) There are no actions or proceedings against, or
investigations known to it of, the Seller before any court,
administrative or other tribunal (A) that might prohibit its entering
into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans by the Seller or the consummation of the transactions
contemplated by this Agreement or (C) that might prohibit or materially
and adversely affect the performance by the Seller of its obligations
under, or validity or enforceability of, this Agreement.
(x) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller are not subject to the bulk transfer or any
similar statutory provisions.
(xi) The Seller has not dealt with any broker, investment
banker, agent or other person, except for the Purchaser or any of its
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans.
(xii) There is no litigation currently pending or, to the best
of the Seller's knowledge without independent investigation, threatened
against the Seller that would reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates or the execution, delivery, performance or enforceability
of this Agreement, or that would result in a material adverse change in
the financial condition of the Seller.
(xiii) The Seller is solvent and will not be rendered
insolvent by the consummation of the transactions contemplated hereby.
The Seller is not transferring any Mortgage loan with any intent to
hinder, delay or defraud any of its creditors.
(c) With respect to the Mortgage Loans, the Seller hereby represents
and warrants, for the benefit of the Purchaser, that the representations and
warranties set forth on Exhibit A hereto (other than delinquencies and pay
histories shown on the Mortgage Loan Schedule) are true and correct as of the
date hereof and as of the Closing Date.
SECTION 6. REPURCHASE OBLIGATION FOR DEFECTIVE DOCUMENTATION AND FOR
BREACH OF REPRESENTATION AND WARRANTY.
It is understood and agreed that the representations and warranties set
forth in Section 5 shall survive the sale of the Mortgage Loans to the Purchaser
and shall inure to the benefit of the Purchaser and any assignee, transferee or
designee of the Purchaser, including the Trustee for the benefit of holders of
the Asset-Backed Pass-Through Certificates evidencing an interest in all or a
portion of the Mortgage Loans, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment or the examination or lack of
examination of any Mortgage File. With respect to the representations and
warranties contained herein that are made to the knowledge or the best knowledge
of the Seller, or as to which the Seller has no knowledge, if it is discovered
that the substance of any such representation and warranty is
8
inaccurate and the inaccuracy materially and adversely affects the value of the
related Mortgage Loan, or the interest therein of the Purchaser or the
Purchaser's assignee, designee or transferee, then notwithstanding the Seller's
lack of knowledge with respect to the substance of such representation and
warranty being inaccurate at the time the representation and warranty was made,
such inaccuracy shall be deemed a breach of the applicable representation and
warranty and the Seller shall take such action described in the following
paragraphs of this Section 6 in respect of such Mortgage Loan. Upon discovery by
either the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties made by the Seller that materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser (or
which materially and adversely affects the interests of the Purchaser in the
related Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other.
Within 90 days of the earlier of either discovery by or notice to the
Seller of any breach of a representation or warranty made by the Seller that
materially and adversely affects the value of a Mortgage Loan or the Mortgage
Loans or the interest therein of the Purchaser, the Seller shall use its best
efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Seller shall, at the Purchaser's option, repurchase
such Mortgage Loan at the Purchase Price. The Seller may, at the request of the
Purchaser and assuming the Seller has a Qualified Substitute Mortgage Loan,
rather than repurchase a deficient Mortgage Loan as provided above, remove such
Mortgage Loan and substitute in its place a Qualified Substitute Mortgage Loan
or Loans. If the Seller does not provide a Qualified Substitute Mortgage Loan or
Loans, it shall repurchase the deficient Mortgage Loan. Any repurchase of a
Mortgage Loan(s) pursuant to the foregoing provisions of this Section 6 shall
occur on a date designated by the Purchaser and shall be accomplished by deposit
in accordance with Section 2.03 of the Pooling and Servicing Agreement. Any
repurchase or substitution required by this Section shall be made in a manner
consistent with Section 2.03 of the Pooling and Servicing Agreement.
At the time of substitution or repurchase by the Seller of any
deficient Mortgage Loan, the Purchaser and the Seller shall arrange for the
reassignment of the repurchased or substituted Mortgage Loan to the Seller and
the delivery to the Seller of any documents held by the Trustee relating to the
deficient or repurchased Mortgage Loan. In the event the Purchase Price is
deposited in the Collection Account. The Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken place.
Upon such repurchase, the Mortgage Loan Schedule shall be amended to reflect the
withdrawal of the repurchased Mortgage Loan from this Agreement.
As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, the Seller shall effect such
substitution by delivering to the Purchaser or its designee for such Qualified
Substitute Mortgage Loan or Loans the Mortgage Note, the Mortgage, the
Assignment and such other documents and agreements as are required by the
Pooling and Servicing Agreement, with the Mortgage Note endorsed as required
therein. The Seller shall remit for deposit in the Collection Account the
Monthly Payment due on such Qualified Substitute Mortgage Loan or Loans in the
month following the date of such substitution. Monthly payments due with respect
to Qualified Substitute Mortgage Loans in the month of substitution will be
retained by the Seller. For the month of substitution, distributions
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to the Purchaser will include the Monthly Payment due on such Deleted Mortgage
Loan in the month of substitution, and the Seller shall thereafter be entitled
to retain all amounts subsequently received by the Seller in respect of such
Deleted Mortgage Loan. Upon such substitution, the Qualified Substitute Mortgage
Loans shall be subject to the terms of this Agreement in all respects, and the
Seller shall be deemed to have made with respect to such Qualified Substitute
Mortgage Loan or Loans as of the date of substitution, the covenants,
representations and warranties set forth in Section 5.
It is understood and agreed that the representations and warranties set
forth in Section 5 shall survive delivery of the respective Mortgage Files to
the Trustee on behalf of the Purchaser.
It is understood and agreed that (i) the obligations of the Seller set
forth in this Section 6 to cure, repurchase and substitute for a defective
Mortgage Loan and (ii) the obligations of the Seller as provided in the next
sentence constitute the sole remedies of the Purchaser respecting a missing or
defective document or a breach of the representations and warranties contained
in Section 5. The Seller shall indemnify the Purchaser and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the representations and warranties
contained in Sections 5(a)(ii), (iii), (v) and (vi) of this Agreement.
Notwithstanding anything to the contrary in this Section 6, with
respect to any breach by the Seller of the representation and warranty set forth
in Section 5(a)(vii), which breach materially and adversely affects the value of
any Prepayment Charge or the interests of the Purchaser therein, the Seller
shall remedy such breach as follows: upon any Principal Prepayment with respect
to the affected Mortgage Loan, the Seller shall pay or cause to be paid to the
Purchaser the excess, if any, of (x) the amount of such Prepayment Charge
calculated as set forth in the Mortgage Loan Schedule and (y) the amount
collected from the Mortgagor in respect of such Prepayment Charge. Such remedy
amount payable not later than the Servicer's next scheduled monthly remittance
to the Purchaser following the calendar month in which the related Principal
Prepayment occurred.
SECTION 7. CLOSING; PAYMENT FOR THE MORTGAGE LOANS. The closing of the
purchase and sale of the Mortgage Loans shall be held at the New York City
office of Xxxxxxx Xxxxxxxx & Wood LLP at 10:00 AM New York City time on the
Closing Date.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller under this
Agreement shall be true and correct in all material respects as of the date as
of which they are made and no event shall have occurred which, with notice or
the passage of time, would constitute a default under this Agreement;
(b) The Purchaser shall have received, or the attorneys of the
Purchaser shall have received in escrow (to be released from escrow at the time
of closing), all Closing Documents as specified in Section 8 of this Agreement,
in such forms as are agreed upon and
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acceptable to the Purchaser, duly executed by all signatories other than the
Purchaser as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered or caused to be delivered and
released to the Purchaser or to its designee, all documents (including without
limitation, the Mortgage Loans) required to be so delivered by the Purchaser;
and
(d) All other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall deliver or
cause to be delivered to the Seller on the Closing Date, against delivery and
release by the Seller to the Trustee of all documents required pursuant to the
Pooling and Servicing Agreement, the consideration for the Mortgage Loans as
specified in Section 3 of this Agreement, by delivery to the Seller of the
Mortgage Loan Purchase Price.
SECTION 8. CLOSING DOCUMENTS. Without limiting the generality of
Section 7 hereof, the closing shall be subject to delivery of each of the
following documents:
(a) An Officers' Certificate of the Seller, dated the Closing Date,
upon which the Purchaser and Citigroup Global Markets Inc. (the "Underwriter")
may rely, in a form acceptable to the Purchaser;
(b) A Secretary's Certificate of the Seller, dated the Closing Date,
upon which the Purchaser and the Underwriter may rely, in a form acceptable to
the Purchaser, and attached thereto copies of the certificate of incorporation,
by-laws and certificate of good standing of the Seller;
(c) An Opinion of Counsel of the Seller, dated the Closing Date and
addressed to the Purchaser and the Underwriter, in a form acceptable to the
Purchaser;
(d) An Officers' Certificate of each Originator, dated the Closing
Date, upon which the Purchaser and the Underwriter may rely, in a form
acceptable to the Purchaser;
(e) A Secretary's Certificate of each Originator, dated the Closing
Date, upon which the Purchaser and the Underwriter may rely, in a form
acceptable to the Purchaser, and attached thereto copies of the certificate of
incorporation, by-laws and certificate of good standing of the Originator;
(f) Such opinions of counsel as the Rating Agencies or the Trustee may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement;
(g) A letter from Deloitte & Touche L.L.P., certified public
accountants, dated the date hereof and to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Purchaser's Prospectus Supplement, dated March 3, 2005, agrees with the records
of the Seller;
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(h) Letters from a certified public accountant for Xxxxx, dated the
date hereof and to the effect that they have performed certain specified
procedures as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Purchaser's
Prospectus Supplement, dated March 3, 2005 under the subheading "The Master
Servicer and the Servicer--The Servicer" agrees with the records of the
Servicer; and
(i) Such further information, certificates, opinions and documents as
the Purchaser or the Underwriter may reasonably request.
SECTION 9. COSTS. The Seller shall pay (or shall reimburse the
Purchaser or any other Person to the extent that the Purchaser or such other
Person shall pay) all necessary and reasonable costs and expenses incurred
directly in delivering this Agreement, the Pooling and Servicing Agreement, the
Certificates, the prospectus, prospectus supplement and private placement
memorandum relating to the Certificates and other related documents, the initial
fees, costs and expenses of the Trust Administrator and the Trustee set forth in
an engagement letter delivered to the Seller by the Trust Administrator, the
fees and expenses of the Purchaser's counsel in connection with the preparation
of all documents relating to the securitization of the Mortgage Loans, the
filing fee charged by the Securities and Exchange Commission for registration of
the Certificates, the fees charged by any rating agency to rate the Certificates
and the ongoing expenses of the Rating Agencies. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 10. [Reserved].
SECTION 11. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST. The sale
and delivery on the Closing Date of the Mortgage Loans described on the Mortgage
Loan Schedule in accordance with the terms and conditions of this Agreement is
mandatory. It is specifically understood and agreed that each Mortgage Loan is
unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate the Purchaser for the losses and damages
incurred by the Purchaser in the event of the Seller's failure to deliver the
Mortgage Loans on or before the Closing Date. The Seller hereby grants to the
Purchaser a lien on and a continuing security interest in the Seller's interest
in each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Purchaser, subject to the Purchaser's (i) right, prior to the Closing
Date, to reject any Mortgage Loan to the extent permitted by this Agreement and
(ii) obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 7 hereof. Any Mortgage Loans rejected by the
Purchaser shall concurrently therewith be released from the security interest
created hereby. The Seller agrees that, upon acceptance of the Mortgage Loans by
the Purchaser or its designee and delivery of payment to the Seller, that its
security interest in the Mortgage Loans shall be released. All rights and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by law or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 7 hereof shall have been satisfied and the
Purchaser shall not have paid or caused
12
to be paid the Mortgage Loan Purchase Price, or any such condition shall not
have been waived or satisfied and the Purchaser determines not to pay or cause
to be paid the Mortgage Loan Purchase Price, the Purchaser shall immediately
effect the redelivery of the Mortgage Loans, if delivery to the Purchaser has
occurred and the security interest created by this Section 11 shall be deemed to
have been released.
SECTION 12. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by registered mail, postage prepaid, or transmitted by
telex or telegraph and confirmed by a similar mailed writing, if to the
Purchaser, addressed to the Purchaser at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance Group, or such other address
as may hereafter be furnished to the Seller in writing by the Purchaser, and if
to the Seller, addressed to the Seller at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance Group, or such other address
as may hereafter be furnished to the Purchaser in writing by the Seller.
SECTION 13. SEVERABILITY OF PROVISIONS. Any part, provision,
representation or warranty of this Agreement which is prohibited or which is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement which
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. AGREEMENT OF PARTIES. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as either of
the others may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement and the Pooling and
Servicing Agreement.
SECTION 15. SURVIVAL. The Seller agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
Purchaser, notwithstanding any investigation heretofore or hereafter made by the
Purchaser or on its behalf, and that the representations, warranties and
agreements made by the Seller herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement, the Pooling and Servicing Agreement or the Trust
Fund.
SECTION 16. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS (INCLUDING THE CHOICE OF LAW PROVISIONS)
AND DECISIONS OF THE STATE
13
OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. MISCELLANEOUS. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans by the Seller to the Purchaser as provided in Section 4
hereof be, and be construed as, a sale of the Mortgage Loans by the Seller to
the Purchaser and not as a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Seller, then, (a) it is the
express intent of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller and (b) (1) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code; (2) the conveyance provided for in Section 4 hereof
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title and interest in and to the Mortgage
Loans and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Collection Account whether
in the form of cash, instruments, securities or other property; (3) the
possession by the Purchaser or its agent of Mortgage Notes, the related
Mortgages and such other items of property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the New York Uniform Commercial Code; and (4) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. Any assignment of the interest of
the Purchaser pursuant to Section 4(d) hereof shall also be deemed to be an
assignment of any security interest created hereby. The Seller and the Purchaser
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
14
SECTION 18. INDEMNIFICATION. The Seller shall indemnify and hold
harmless each of (i) the Purchaser, (ii) Citigroup Global Markets Inc. and (iii)
each person, if any, who controls the Purchaser within the meaning of Section 15
of the Securities Act of 1933, as amended (the "1933 Act") ((i) through (iii)
collectively, the "Indemnified Party") against any and all losses, claims,
expenses, damages or liabilities to which the Indemnified Party may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
expenses, damages or liabilities (or actions in respect thereof) arise out of,
are based upon, or result from, a breach by the Seller of any of the
representations and warranties made by the Seller herein, it being understood
that the Purchaser has relied upon such representations and warranties.
15
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed by their respective officers thereunto duly authorized as of
the date first above written.
CITIGROUP MORTGAGE LOAN TRUST INC.
By:____________________________________________
Name:
Title:
CITIGROUP GLOBAL MARKETS REALTY CORP.
By:____________________________________________
Name:
Title:
EXHIBIT A
REPRESENTATION AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS AS OF THE DATE
PURCHASED BY THE SELLER FROM XXXXX
Except for "Mortgage Loans", which shall mean the Mortgage Loans sold
by the Seller to the Purchaser, all capitalized terms in this Exhibit A shall
have the meanings ascribed to them in the Servicing Agreement.
(a) MORTGAGE LOANS AS DESCRIBED.
The information set forth in the Mortgage Loan Schedule
attached hereto as Exhibit A and the information contained on
the electronic Data File attached hereto as Exhibit A-1,
delivered to the Purchaser is true and correct;
(b) PAYMENTS CURRENT.
All payments required to be made up to the Cut-off Date for
the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment under any Mortgage Loan has
been 30 days delinquent more than one time within twelve
months prior to the Closing Date;
(c) NO OUTSTANDING CHARGES.
There are no defaults in complying with the terms of the
Mortgages, and all taxes, governmental assessments, insurance
premiums, leasehold payments, water, sewer and municipal
charges, which previously became due and owing have been paid,
or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and
which has been assessed but is not yet due and payable. The
Company has not advanced funds, or induced, or solicited
directly or indirectly, the payment of any amount required
under the Mortgage Loan, except for interest accruing from the
date of the Mortgage Note or date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the day which
precedes by one month the Due Date of the first installment of
principal and interest;
(d) ORIGINAL TERMS UNMODIFIED.
The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, except
by a written instrument which has been recorded or registered
with the MERS System, if necessary, to protect the interests
of the Purchaser and which has been delivered to the
Custodian. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by
the policy, and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by
the issuer of any related PMI Policy and the title insurer, to
the extent required by the policy, and which assumption
agreement is part of
the Mortgage File delivered to the Custodian and the terms of
which are reflected in the Mortgage Loan Schedule;
(e) NO DEFENSES.
The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the
terms of the Mortgage Note or the Mortgage, or the exercise of
any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such
right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) NO SATISFACTION OF MORTGAGE.
The Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or
in part, nor has any instrument been executed that would
effect any such satisfaction, release, cancellation,
subordination or rescission;
(g) VALIDITY OF MORTGAGE DOCUMENTS.
The Mortgage Note and the Mortgage and related documents are
genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms.
All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage, and the Mortgage
Note and the Mortgage have been duly and properly executed by
such parties. With respect to each Cooperative Loan, the
Mortgage Note, the Mortgage, the Pledge Agreement, and related
documents are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in
accordance with its terms. All parties to the Mortgage Note,
the Mortgage, the Pledge Agreement, the Proprietary Lease, the
Stock Power, Recognition Agreement and the Assignment of
Proprietary Lease had legal capacity to enter into the
Mortgage Loan and to execute and deliver such documents, and
such documents have been duly and properly executed by such
parties;
(h) NO FRAUD.
No error, omission, misrepresentation, negligence, fraud or
similar occurrence with respect to a Mortgage Loan has taken
place on the part of the Company, or the Mortgagor, or to the
best of the Company's knowledge, any appraiser, any builder,
or any developer, or any other party involved in the
origination of the Mortgage Loan or in the application of any
insurance in relation to such Mortgage Loan;
(i) COMPLIANCE WITH APPLICABLE LAWS.
Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure or predatory and abusive
lending laws applicable to the Mortgage Loan have been
complied with. All inspections, licenses and certificates
required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the
use and occupancy of the same, including, but not limited to,
certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities;
(j) LOCATION AND TYPE OF MORTGAGED PROPERTY.
The Mortgaged Property is located in the state identified in
the Mortgage Loan Schedule and consists of a contiguous parcel
of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an
individual condominium unit in a condominium project, or a
Cooperative Apartment, or an individual unit in a planned unit
development or a townhouse, provided, however, that any
condominium project or planned unit development shall conform
with the applicable Xxxxxx Mae or Xxxxxxx Mac requirements, or
the Underwriting Guidelines, regarding such dwellings, and no
residence or dwelling is a leasehold, mobile home. As of the
respective appraisal date for each Mortgaged Property, any
Mortgaged Property being used for commercial purposes conforms
to the Underwriting Guidelines and, to the best of the
Company's knowledge, since the date of such appraisal, no
portion of the Mortgaged Property has been used for commercial
purposes outside of the Underwriting Guidelines;
(k) VALID FIRST LIEN.
The Mortgage is a valid, subsisting and enforceable first lien
on the Mortgaged Property, including all buildings on the
Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing. The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and
assessments not yet due and payable;
(2) covenants, conditions and restrictions, rights of
way, easements and other matters of the public record
as of the date of recording acceptable to mortgage
lending institutions generally and specifically
referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and
(i) referred to or otherwise considered in the
appraisal made for the originator of the Mortgage
Loan and (ii) which do not adversely affect
20 the Appraised Value of the Mortgaged Property set
forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the
benefits of the security intended to be provided by
the mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, subsisting and
enforceable first lien and first priority security interest on
the property described therein and the Company has full right
to sell and assign the same to the Purchaser.
With respect to each Cooperative Loan, each Pledge Agreement
creates a valid, enforceable and subsisting first security
interest in the Cooperative Shares and Proprietary Lease,
subject only to (i) the lien of the related Cooperative for
unpaid assessments representing the Mortgagor's pro rata share
of the Cooperative's payments for its blanket mortgage,
current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like
collateral is commonly subject and (ii) other matters to which
like collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be
provided by the Pledge Agreement; provided, however, that the
appurtenant Proprietary Lease may be subordinated or otherwise
subject to the lien of any mortgage on the Project;
(l) FULL DISBURSEMENT OF PROCEEDS.
The proceeds of the Mortgage Loan have been fully disbursed,
except for escrows established or created due to seasonal
weather conditions, and there is no requirement for future
advances thereunder. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) CONSOLIDATION OF FUTURE ADVANCES.
Any future advances made prior to the Cut-off Date, have been
consolidated with the outstanding principal amount secured by
the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single
repayment term reflected on the Mortgage Loan Schedule. The
lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a
title insurance policy, an endorsement to the policy insuring
the mortgagee's consolidated interest or by other title
evidence acceptable to Xxxxxx Mae or Xxxxxxx Mac; the
consolidated principal amount does 21 not exceed the original
principal amount of the Mortgage Loan; the Company shall not
make future advances after the Cut-off Date;
(n) OWNERSHIP.
The Company is the sole owner of record and holder of the
Mortgage Loans and the related Mortgage Note and the Mortgage
are not assigned or pledged, and the Company has good and
marketable title thereto and has full right and authority to
transfer and sell the Mortgage Loan to the Purchaser. The
Company is transferring the Mortgage Loan free and clear of
any and all encumbrances, liens, pledges, equities,
participation interests, claims, charges or security interests
of any nature encumbering such Mortgage Loan;
(o) ORIGINATION/DOING BUSINESS.
The Mortgage Loan was originated by a savings and loan
association, a savings bank, a commercial bank, a credit
union, an insurance company, or similar institution that is
supervised and examined by a federal or state authority or by
a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and
disposed of such interest, were) (1) in compliance with any
and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2)
organized under the laws of such state, or (3) qualified to do
business in such state, or (4) federal savings and loan
associations or national banks having principal offices in
such state, or (5) not doing business in such state;
(p) LTV, PMI POLICY.
No Mortgage Loan has a LTV greater than 95%. If the original
LTV of the Mortgage Loan was greater than 80%, the excess over
78% is and will be insured as to payment defaults by a PMI
Policy until terminated pursuant to the Homeowners Protection
Act of 1998, 12 USC ss.4901, et seq. All provisions of such
PMI Policy have been and are being complied with, such policy
is in full force and effect, and all premiums due thereunder
have been paid. The Qualified Insurer has a claims paying
ability acceptable to Xxxxxx Mae or Xxxxxxx Mac. Any Mortgage
Loan subject to a PMI Policy obligates the Mortgagor
thereunder to maintain the PMI Policy and to pay all premiums
and charges in connection therewith. The Mortgage Interest
Rate for the Mortgage Loan as set forth on the Mortgage Loan
Schedule is net of any such insurance premium;
(q) TITLE INSURANCE.
The Mortgage Loan is covered by an ALTA lender's title
insurance policy (or in the case of any Mortgage Loan secured
by a Mortgaged Property located in a 22 jurisdiction where
such policies are generally not available, an opinion of
counsel of the type customarily rendered in such jurisdiction
in lieu of title insurance) or other generally acceptable form
of policy of insurance acceptable to Xxxxxx Xxx or Xxxxxxx
Mac, issued by a title insurer acceptable to Xxxxxx Mae or
Xxxxxxx Mac
and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Company, its
successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the Mortgage
Loan, subject only to the exceptions contained in clauses (1),
(2) and (3) of Paragraph (k) of this Section 3.02, and against
any loss by reason of the invalidity or unenforceability of
the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and
Monthly Payment. Additionally, such lender's title insurance
policy includes no exceptions regarding ingress, egress or
encroachments that impact the value or the marketability of
the Mortgaged Property. The Company is the sole insured of
such lender's title insurance policy, and such lender's title
insurance policy is in full force and effect and will be in
force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under
such lender's title insurance policy, and no prior holder of
the Mortgage, including the Company, has done, by act or
omission, anything which would impair the coverage of such
lender's title insurance policy;
(r) NO DEFAULTS.
There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note
and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of
acceleration, and neither the Company nor its predecessors
have waived any default, breach, violation or event of
acceleration;
(s) NO MECHANICS' LIENS.
There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens)
affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the
related Mortgage which are not insured against by the title
insurance policy referenced in Paragraph (q) above;
(t) LOCATION OF IMPROVEMENTS; NO ENCROACHMENTS.
Except as insured against by the title insurance policy
referenced in Paragraph (q) above, all improvements which were
considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property and no
improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or 23 being part
of the Mortgaged Property is in violation of any applicable
zoning law or regulation;
(u) PAYMENT TERMS.
Except with respect to the Interest Only Mortgage Loans,
principal payments commenced no more than 60 days after the
funds were disbursed to the Mortgagor in connection with the
Mortgage Loan. The Mortgage Loans have an original term to
maturity of not more than 30 years, with interest payable in
arrears on the first day of each month. As to each adjustable
rate Mortgage Loan on each applicable Adjustment Date, the
Mortgage Interest Rate will be adjusted to equal the sum of
the Index plus the applicable Gross Margin, rounded up or down
to the nearest multiple of 0.125% indicated by the Mortgage
Note; provided that the Mortgage Interest Rate will not
increase or decrease by more than the Periodic Interest Rate
Cap on any Adjustment Date, and will in no event exceed the
maximum Mortgage Interest Rate or be lower than the minimum
Mortgage Interest Rate listed on the Mortgage Loan Schedule
for such Mortgage Loan. As to each adjustable rate Mortgage
Loan that is not an Interest Only Mortgage Loan, each Mortgage
Note requires a monthly payment which is sufficient, during
the period prior to the first adjustment to the Mortgage
Interest Rate, to fully amortize the outstanding principal
balance as of the first day of such period over the then
remaining term of such Mortgage Note and to pay interest at
the related Mortgage Interest Rate. As to each adjustable rate
Mortgage Loan, if the related Mortgage Interest Rate changes
on an Adjustment Date or, with respect to an Interest Only
Mortgage Loan, on an Adjustment Date following the related
interest only period, the then outstanding principal balance
will be reamortized over the remaining life of such Mortgage
Loan. No Mortgage Loan contains terms or provisions which
would result in negative amortization;
(v) CUSTOMARY PROVISIONS.
The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. There is no homestead or
other exemption available to a Mortgagor which would interfere
with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage;
(w) OCCUPANCY OF THE MORTGAGED PROPERTY.
As of the date of origination, the Mortgaged Property was in
good repair and was lawfully occupied under applicable law;
(x) NO ADDITIONAL COLLATERAL.
24 The Mortgage Note is not and has not been secured by any
collateral, pledged account or other security except the lien
of the corresponding Mortgage and the
security interest of any applicable security agreement or
chattel mortgage referred to in Paragraph (k) above;
(y) DEEDS OF TRUST.
In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will
become payable by the Mortgagee to the trustee under the deed
of trust, except in connection with a trustee's sale after
default by the Mortgagor;
(z) ACCEPTABLE INVESTMENT.
The Company has no knowledge of any circumstances or
conditions with respect to the Mortgage Loan, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing
that can reasonably be expected to cause private institutional
investors to regard the Mortgage Loan as an unacceptable
investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage
Loan;
(aa) TRANSFER OF MORTGAGE LOANS.
If the Mortgage Loan is not a MERS Mortgage Loan, the
Assignment of Mortgage, upon the insertion of the name of the
assignee and recording information, is in recordable form and
is acceptable for recording under the laws of the jurisdiction
in which the Mortgaged Property is located;
(bb) MORTGAGED PROPERTY UNDAMAGED.
The Mortgaged Property is undamaged by waste, fire, earthquake
or earth movement, windstorm, flood, tornado or other casualty
so as to affect adversely the value of the Mortgaged Property
as security for the Mortgage Loan or the use for which the
premises were intended;
(cc) COLLECTION PRACTICES; ESCROW DEPOSITS.
The origination, servicing and collection practices used with
respect to the Mortgage Loan have been in accordance with
Accepted Servicing Practices, and have been in all material
respects legal and proper. With respect to escrow deposits and
Escrow Payments, all such payments are in the possession of
the Company and there exist no deficiencies in connection
therewith for which customary arrangements for repayment
thereof have not been made. All Escrow Payments have been
collected in full compliance with state and federal law. No 25
escrow deposits or Escrow Payments or other charges or
payments due the Company have been capitalized under the
Mortgage Note;
(dd) NO CONDEMNATION.
There is no proceeding pending or to the best of the Company's
knowledge threatened for the total or partial condemnation of
the related Mortgaged Property;
(ee) THE APPRAISAL.
The Mortgage Loan Documents include an appraisal, with the
exception of any Time$aver(R) Mortgage Loan (which at the
original origination were on form 1004 or form 2055 with
interior inspections), of the related Mortgaged Property. The
appraisal was conducted by an appraiser who had no interest,
direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof; and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan,
and the appraisal and the appraiser both satisfy the
applicable requirements of Title XI of the Financial
Institution Reform, Recovery, and Enforcement Act of 1989 and
the regulations promulgated thereunder, all as in effect on
the date the Mortgage Loan was originated;
(ff) INSURANCE.
The Mortgaged Property securing each Mortgage Loan is insured
by an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac against
loss by fire and such hazards as are covered under a standard
extended coverage endorsement and such other hazards as are
customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements
of Section 4.10, in an amount which is not less than the
lesser of 100% of the insurable value of the Mortgaged
Property and the outstanding principal balance of the Mortgage
Loan, but in no event less than the minimum amount necessary
to fully compensate for any damage or loss on a replacement
cost basis. If the Mortgaged Property is a condominium unit,
it is included under the coverage afforded by a blanket policy
for the project. If the improvements on the Mortgaged Property
are in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy meeting the requirements of
the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of (A)
the outstanding principal balance of the Mortgage Loan, (B)
the full insurable value and (C) the maximum amount of
insurance which was available under the Flood Disaster
Protection Act of 1973, as amended. All individual insurance
policies contain a standard mortgagee clause naming the
Company and its successors and assigns as mortgagee, and all
premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain a hazard insurance policy at
the Mortgagor's cost and 26 expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor's cost
and expense, and to seek reimbursement therefor from the
Mortgagor. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and
effect, and will be in full force and effect and inure to the
benefit of the Purchaser upon the consummation of the
transactions contemplated by this
Agreement. The Company has not acted or failed to act so as to
impair the coverage of any such insurance policy or the
validity, binding effect and enforceability thereof;
(gg) SERVICEMEMBERS CIVIL RELIEF ACT.
The Mortgagor has not notified the Company, and the Company
has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers Civil Relief Act, as
amended;
(hh) NO BALLOON PAYMENTS, GRADUATED PAYMENTS OR CONTINGENT
INTERESTS.
The Mortgage Loan is not a graduated payment mortgage loan and
the Mortgage Loan does not have a shared appreciation or other
contingent interest feature. No Mortgage Loan has a balloon
payment feature;
(ii) NO CONSTRUCTION LOANS.
No Mortgage Loan was made in connection with (i) the
construction or rehabilitation of a Mortgage Property or (ii)
facilitating the trade-in or exchange of a Mortgaged Property
other than a construction-to-permanent loan which has
converted to a permanent Mortgage Loan;
(jj) UNDERWRITING.
Each Mortgage Loan was underwritten in accordance with the
underwriting guidelines of the Company; and the Mortgage Note
and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx
Mae;
(kk) BUYDOWN MORTGAGE LOANS.
With respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
(i) On or before the date of origination of such Mortgage
Loan, the Company and the Mortgagor, or the Company,
the Mortgagor and the seller of the Mortgaged
Property or a third party entered into a Buydown
Agreement. The Buydown Agreement provides that the
seller of the Mortgaged Property (or third party)
shall deliver to the Company temporary Buydown Funds
in an amount equal to the aggregate undiscounted
amount of payments that, when added to the amount the
Mortgagor on such 27 Mortgage Loan is obligated to
pay on each Due Date in accordance with the terms of
the Buydown Agreement, is equal to the full scheduled
Monthly Payment due on such Mortgage Loan. The
temporary Buydown Funds enable the Mortgagor to
qualify for the Buydown Mortgage Loan. The effective
interest rate of a Buydown Mortgage Loan if less than
the interest rate set forth in the related Mortgage
Note will increase within the Buydown Period as
provided in the related Buydown Agreement so that the
effective interest rate will be equal to the interest
rate as set forth in the
related Mortgage Note. The Buydown Mortgage Loan
satisfies the requirements of Xxxxxx Xxx guidelines;
(ii) The Mortgage and Mortgage Note reflect the permanent
payment terms rather than the payment terms of the
Buydown Agreement. The Buydown Agreement provides for
the payment by the Mortgagor of the full amount of
the Monthly Payment on any Due Date that the Buydown
Funds are available. The Buydown Funds were not used
to reduce the original principal balance of the
Mortgage Loan or to increase the Appraised Value of
the Mortgage Property when calculating the
Loan-to-Value Ratios for purposes of the Agreement
and, if the Buydown Funds were provided by the
Company and if required under Xxxxxx Mae and Xxxxxxx
Mac guidelines, the terms of the Buydown Agreement
were disclosed to the appraiser of the Mortgaged
Property;
(iii) The Buydown Funds may not be refunded to the
Mortgagor unless the Mortgagor makes a principal
payment for the outstanding balance of the Mortgage
Loan;
(iv) As of the date of origination of the Mortgage Loan,
the provisions of the related Buydown Agreement
complied with the requirements of Xxxxxx Mae and
Xxxxxxx Mac regarding buydown agreements;
(ll) COOPERATIVE LOANS.
With respect to each Cooperative Loan:
(i) The Cooperative Shares are held by a person as a
tenant-stockholder in a Cooperative. Each original
UCC financing statement, continuation statement or
other governmental filing or recordation necessary to
create or preserve the perfection and priority of the
first lien and security interest in the Cooperative
Loan and Proprietary Lease has been timely and
properly made. Any security agreement, chattel
mortgage or equivalent document related to the
Cooperative Loan and delivered to Purchaser or its
designee establishes in Purchaser a valid and
subsisting perfected first lien on and security
interest in the Mortgaged Property described therein,
and Purchaser has full right to sell and assign the
same. The Proprietary Lease term expires no less than
five years after the Mortgage Loan term or such other
term acceptable to Xxxxxx Mae or Xxxxxxx Mac;
(ii) A Cooperative Lien Search has been made by a company
competent to make the same which company is
acceptable to Xxxxxx Mae and qualified to do business
in the jurisdiction where the Cooperative is located;
(iii) (a) The term of the related Proprietary Lease is not
less than the terms of the Cooperative Loan; (b)
there is no provision in any Proprietary Lease which
requires the Mortgagor to offer for sale the
Cooperative Shares owned by such Mortgagor first to
the Cooperative; (c) there is no
prohibition in any Proprietary Lease against pledging
the Cooperative Shares or assigning the Proprietary
Lease; (d) the Cooperative has been created and
exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which
the Project is located and qualifies as a cooperative
housing corporation under Section 210 of the Code;
(e) the Recognition Agreement is on a form published
by Aztech Document Services, Inc. or includes similar
provisions; and (f) the Cooperative has good and
marketable title to the Project, and owns the Project
either in fee simple or under a leasehold that
complies with the requirements of the Xxxxxx Xxx
Guidelines; such title is free and clear of any
adverse liens or encumbrances, except the lien of any
blanket mortgage;
(iv) The Company has the right under the terms of the
Mortgage Note, Pledge Agreement and Recognition
Agreement to pay any maintenance charges or
assessments owed by the Mortgagor;
(v) Each Stock Power (i) has all signatures guaranteed or
(ii) if all signatures are not guaranteed, then such
Cooperative Shares will be transferred by the stock
transfer agent of the Cooperative if the Company
undertakes to convert the ownership of the collateral
securing the related Cooperative Loan.
(mm) HOEPA.
No Mortgage Loan is classified as a "high cost" mortgage loan
under the Home Ownership and Equity Protection Act of 1994, as
amended, and no Mortgage Loan is considered a "high cost
home," "threshold," "covered" (excluding home loans defined as
"covered home loans" in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003,
and July 7, 2004), or "high risk home" loan under any other
applicable state, federal or local law;
(nn) ANTI-MONEY LAUNDERING LAWS.
the Company has complied with all applicable anti-money
laundering laws and regulations, (the "Anti-Money Laundering
Laws"), and has established an anti-money laundering
compliance program as required by the Anti-Money Laundering
Laws;
(oo) BANKRUPTCY.
No Mortgagor was a debtor in any state or federal bankruptcy
or insolvency proceeding as of the date the Mortgage Loan was
closed and the proceeds of the Mortgage Loan were distributed;
(pp) DUE ON SALE.
The Mortgage or Mortgage Note contains an enforceable
provision, to the extent not prohibited by federal law, for
the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan in the event that the Mortgaged
Property is sold or transferred without the prior written
consent of the Mortgagee thereunder, provided that, with
respect to Mortgage Notes which bear an adjustable rate of
interest, such provision shall not be enforceable if the
Mortgagor causes to be submitted to the Company to evaluate
the intended transferee as if a new Mortgage Loan were being
made to such transferee, and the Company reasonably determines
that the security will not be impaired by such Mortgage Loan
assumption and that the risk of breach of any covenant or
agreement in such Mortgage is acceptable to the Purchaser;
(qq) CREDIT REPORTING.
With respect to each Mortgage Loan, the Company has furnished
complete information on the related borrower credit files to
Equifax, Experian and Trans Union Credit Information Company,
in accordance with the Fair Credit Reporting Act and its
implementing regulations.
(rr) DELIVERY OF MORTGAGE FILES.
The Mortgage Loan Documents required to be delivered by the
Company have been delivered to the Custodian. The Company is
in possession of a complete, true and accurate Mortgage File
in compliance with Exhibit B, except for such documents the
originals of which have been delivered to the Custodian or for
such documents where the originals of which have been sent for
recordation;
(ss) SINGLE PREMIUM CREDIT LIFE INSURANCE.
No Mortgagor has been offered or required to purchase single
premium credit insurance in connection with the origination of
the Mortgage Loan;
(tt) PAYMENT IN FULL.
The Company had no knowledge, at the time of origination of
the Mortgage Loan, of any fact that should have led it to
expect that such Mortgage Loan would not be paid in full when
due; and
(uu) MERS MORTGAGE LOANS.
With respect to each MERS Mortgage Loan, a MIN has been
assigned to the Mortgage Loan, the MIN appears on the Mortgage
or related Assignment of Mortgage to MERS, the Mortgage or the
related Assignment of Mortgage to MERS has been duly and
properly recorded on MERS, and the transfer to the Purchaser
has been properly reflected in the MERS System pursuant to the
Purchaser's registration instructions.
EXHIBIT E
---------
REQUEST FOR RELEASE
TO: U.S. Bank National Association
Corporate Trust Services
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Re: Pooling and Servicing Agreement dated as of February 1,
2005, among Citigroup Mortgage Loan Trust Inc., as
Depositor, CitiMortgage, Inc. as master servicer and trust
administrator and U.S. Bank National Association as Trustee
-----------------------------------------------------------
In connection with the administration of the Mortgage Loans held
by you as Trustee for the Owner pursuant to the above-captioned Agreement, we
request the release, and hereby acknowledge receipt, of the Trustee's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
______________ 1. Mortgage Paid in Full
______________ 2. Foreclosure
______________ 3. Substitution
______________ 4. Other Liquidation (Repurchases, etc.)
______________ 5. Nonliquidation
Reason:______________________________________________
Address to which Trustee should
Deliver the Custodian's Mortgage File:
[____________]
[____________]
E-1
By: ______________________________
(authorized signer)
Issuer:__________________________
Address: __________________________________
Date: _____________________________ __________________________________
Trustee
U.S. BANK NATIONAL ASSOCIATION
Please acknowledge the execution of the above request by your signature and date
below:
_____________________________________
Signature Date
Documents returned to Trustee:
_____________________________________
Trustee Date
E-1
EXHIBIT F-1
-----------
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
U.S. Bank National Association
Corporate Trust Services
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
ATTENTION: CMLTI, SERIES 2005-WF1
Re: Citigroup Mortgage Loan Trust, Series 2005-WF1, Mortgage
Pass-Through Certificates, Class , representing a % Class
Percentage Interest
---------------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by _______________________ (the
"Transferor") to ________________ (the "Transferee") of the captioned mortgage
pass-through certificates (the "Certificates"), the Transferor hereby certifies
as follows:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, (e) has taken any other action, that (in the case of each of
subclauses (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or
would render the disposition of any Certificate a violation of Section 5 of the
1933 Act or any state securities law or would require registration or
qualification pursuant thereto. The Transferor will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate. The Transferor will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of
[___], among Citigroup Mortgage Loan Trust Inc. as Depositor, CitiMortgage, Inc.
as trust administrator and master servicer and U.S. Bank National Association as
Trustee (the "Pooling and Servicing Agreement"), pursuant to which Pooling and
Servicing Agreement the Certificates were issued.
F-1-1
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By:___________________________
Name:
Title:
F-1-2
FORM OF TRANSFEREE REPRESENTATION LETTER
[Date]
U.S. Bank National Association
Corporate Trust Services
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
ATTENTION: CMLTI, SERIES 2005-WF1
Re: Citigroup Mortgage Loan Trust, Series 2005-WF1, Mortgage
Pass-Through Certificates, Class , representing a %
Percentage Interest
--------------------------------------------------------
Ladies and Gentlemen:
In connection with the purchase from ______________________
(the "Transferor") on the date hereof of the captioned trust certificates (the
"Certificates"), _______________ (the "Transferee") hereby certifies as follows:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"1933 Act") and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement referred to below, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
All capitalized terms used but not otherwise defined herein
have the respective meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of Setpember 1, 2005, among Citigroup Mortgage Loan Trust
Inc. as Depositor, CitiMortgage, Inc. as master servicer and trust administrator
and U.S. Bank National Association as Trustee, pursuant to which the
Certificates were issued.
[TRANSFEREE]
By: ______________________________
Name:
Title:
F-1-3
ANNEX 1 TO EXHIBIT F
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and U.S. Bank National Association, as Trustee,
with respect to the mortgage pass-through certificates (the "Certificates")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive
officer of the entity purchasing the Certificates (the
"Transferee").
2. In connection with purchases by the Transferee, the Transferee
is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933 ("Rule 144A")
because (i) the Transferee owned and/or invested on a
discretionary basis $______________________1 in securities
(except for the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii)
the Transferee satisfies the criteria in the category marked
below.
___ CORPORATION, ETC. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or banking
institution organized under the laws of any State, territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least
-------------------------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities. $25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF WHICH IS ATTACHED HERETO.
F-1-4
___ BROKER-DEALER. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee,
(ii) securities that are part of an unsold allotment to or
subscription by the Transferee, if the Transferee is a dealer,
(iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a
repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the
Transferee, the Transferee used the cost of such securities to
the Transferee and did not include any of the securities
referred to in the preceding paragraph. Further, in
determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee,
but only if such subsidiaries are consolidated with the
Transferee in its financial statements prepared in accordance
with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the
Transferee's direction. However, such securities were not
included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act
of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related
to the Certificates are relying and will continue to rely on
the statements made herein because one or more sales to the
Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificates only for
Yes No the Transferee's own account?
F-1-5
6. If the answer to the foregoing question is "no", the
Transferee agrees that, in connection with any purchase of
securities sold to the Transferee for the account of a third
party (including any separate account) in reliance on Rule
144A, the Transferee will only purchase for the account of a
third party that at the time is a "qualified institutional
buyer" within the meaning of Rule 144A. In addition, the
Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has
obtained a current representation letter from such third party
or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the
definition of "qualified institutional buyer" set forth in
Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and
conclusions herein. Until such notice is given, the
Transferee's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings
and loan as provided above, the Transferee agrees that it will
furnish to such parties updated annual financial statements
promptly after they become available.
Dated:
_____________________________________
Print Name of Transferee
By: _________________________________
Name:
Title:
F-1-6
ANNEX 2 TO EXHIBIT F
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and U.S. Bank National Association, as Trustee, with respect to
the mortgage pass- through certificates (the "Certificates") described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the President, Chief Financial Officer
or Senior Vice President of the entity purchasing the Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933 ("Rule 144A")
because the Transferee is part of a Family of Investment Companies (as defined
below), is such an officer of the investment adviser (the "Adviser").
2. In connection with purchases by the Transferee, the Transferee is a
"qualified institutional buyer" as defined in Rule 144A because (i) the
Transferee is an investment company registered under the Investment Company Act
of 1940, and (ii) as marked below, the Transferee alone, or the Transferee's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee's Family of Investment
Companies, the cost of such securities was used.
____ The Transferee owned $___________________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) securities issued or guaranteed by the U.S.
or any instrumentality thereof, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
F-1-7
5. The Transferee is familiar with Rule 144A and understands that the parties to
which this certification is being made are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee will be
in reliance on Rule 144A. In addition, the Transferee will only purchase for the
Transferee's own account.
6. The undersigned will notify the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice, the
Transferee's purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such purchase.
Dated:
___________________________________
Print Name of Transferee or Advisor
By:________________________________
Name:
Title:
IF AN ADVISER:
___________________________________
Print Name of Transferee
F-1-8
FORM OF TRANSFEREE REPRESENTATION LETTER
----------------------------------------
The undersigned hereby certifies on behalf of the purchaser
named below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as defined in Rule
144A, ("Rule 144A") under the Securities Act of 1933, as amended.
3. As of the date specified below (which is not earlier than the last day
of the Purchaser's most recent fiscal year), the amount of
"securities", computed for purposes of Rule 144A, owned and invested on
a discretionary basis by the Purchaser was in excess of $100,000,000.
Name of Purchaser
________________________________
By: ____________________________
Name:
Title:
Date of this certificate:
Date of information provided in
paragraph 3
F-1-9
EXHIBIT F-2
-----------
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT
STATE OF ___________ )
COUNTY OF _________ )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ______________________ of _________________________
(the "Owner") a corporation duly organized and existing under the laws of
______________, the record owner of Citigroup Mortgage Loan Trust, Series
2005-WF1, Mortgage Pass-Through Certificates, Class R Certificates, (the "Class
R Certificates"), on behalf of whom I make this affidavit and agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement pursuant to which the
Class R Certificates were issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of
____________, 20__ and (ii) is acquiring the Class R Certificates for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. For this purpose, a "disqualified organization"
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
or, if such transfer is through an agent (which person includes a broker,
nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that
the person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the transferee
is a Permitted Transferee and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that each of the
Class R Certificates may be a "noneconomic residual interest" within the meaning
of proposed Treasury regulations promulgated under the Code and that the
transferor of a "noneconomic residual interest" will remain liable for any taxes
due with respect to the income on such residual
F-2-1
interest, unless no significant purpose of the transfer is to impede the
assessment or collection of tax.
4. The Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificates if, at any time during the taxable year
of the pass-through entity, a non-Permitted Transferee is the record holder of
an interest in such entity. (For this purpose, a "pass-through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is aware that the Trustee will not register the
transfer of any Class R Certificate unless the transferee, or the transferee's
agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. The Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is
_________________.
8. The Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(in particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) which authorize
the Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02(d)); and that the Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. The Owner is not acquiring and will not transfer the Class
R Certificates in order to impede the assessment or collection of any tax.
10. The Owner anticipates that it will, so long as it holds
the Class R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class R Certificates that the
Owner intends to pay taxes associated with holding such Class R Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class R Certificates.
11. The Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class R Certificates.
12. The Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
13. The Owner is not acquiring the Class R Certificates with
the intent to transfer the Class R Certificates to any person or entity that
will not have sufficient assets to pay
F-2-2
any taxes owed by the holder of such Class R Certificates, or that may become
insolvent or subject to a bankruptcy proceeding, for so long as the Class R
Certificates remain outstanding.
14. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class R Certificate were issued and will not
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class R Certificates to
impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of the Class R Certificates; (ii) may
become insolvent or subject to a bankruptcy proceeding for so long as the Class
R Certificates remains outstanding; and (iii) is not a "Permitted Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States may be included 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.
F-2-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
__________, 20__.
[OWNER]
By:______________________________
Name:
Title: [Vice] President
ATTEST:
By:_________________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
___________________________________
Notary Public
County of _________________________
State of __________________________
My Commission expires:
F-2-4
FORM OF TRANSFEROR AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ____________________ of ____________________________
(the "Owner"), a corporation duly organized and existing under the laws of
______________, on behalf of whom I make this affidavit.
2. The Owner is not transferring the Class R Certificates (the
"Residual Certificates") to impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is
the proposed transferee (the "Purchaser") of the Residual Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as holder
of the Residual Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Residual Certificates remain
outstanding and (iii) is not a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to
the Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit F-2. The Owner does not know or
believe that any representation contained therein is false.
5. At the time of transfer, the Owner has conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Owner has determined that the Purchaser has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Owner understands that the transfer of a
Residual Certificate may not be respected for United States income tax purposes
(and the Owner may continue to be liable for United States income taxes
associated therewith) unless the Owner has conducted such an investigation.
6. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
F-2-5
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
___________, 20__.
[OWNER]
By:__________________________
Name:
Title: [Vice] President
ATTEST:
By:______________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
____________________________
Notary Public
County of __________________
State of ___________________
My Commission expires:
F-2-6
EXHIBIT G
---------
FORM OF CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
[Date]
U.S. Bank National Association
Corporate Trust Services
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: CMLTI, Series 2005-WF1
Re: Citigroup Mortgage Loan Trust, Series 2005-WF1, Mortgage
Pass-Through Certificates, Class ___
--------------------------------------------------------
Dear Sirs:
_______________________ (the "Transferee") intends to acquire from
_____________________ (the "Transferor") $____________ Initial Certificate
Principal Balance of Citigroup Mortgage Loan Trust, Series 2005-WF1, Mortgage
Pass-Through Certificates, Class [B-4] [B-5] [B-6] [R] (the "Certificates"),
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of [___], among Citigroup Mortgage Loan Trust Inc. as
depositor (the "Depositor"), CitiMortgage, Inc. as master servicer (the"Master
Servicer") and trust administrator and U.S. Bank National Association as trustee
(the "Trustee"). Capitalized terms used herein and not otherwise defined shall
have the meanings assigned thereto in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to, and covenants with the
Depositor, the Trustee and the Master Servicer that:
The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement, including individual retirement accounts and
annuities, Xxxxx plans and bank collective investment funds and insurance
company general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan within the
meaning of the Department of Labor ("DOL") regulation, 29 C.F.R.ss.2510.3-101,
and (iii) will not be transferred to any entity that is deemed to be investing
in plan assets within the meaning of the DOL regulation at 29 X.X.X.xx.
2510.3-101.
G-1
Very truly yours,
______________________________
By: __________________________
Name:
Title:
G-2
EXHIBIT H
---------
FORM OF MASTER SERVICER CERTIFICATION
Re: Citigroup Mortgage Loan Trust, Series 2005-WF1
Mortgage Pass-Through Certificates, Series 2005-WF1
---------------------------------------------------
I, [identify the certifying individual], certify that:
7. I have reviewed the information required to be provided to
the Trustee by the Master Servicer pursuant to the Pooling and Servicing
Agreement (the "Servicing Information");
8. Based on my knowledge, the Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
9. Based on my knowledge, the Servicing Information required
to be provided to the Trustee by the Master Servicer has been provided as
required under the Pooling and Servicing Agreement;
10. I am responsible for reviewing the activities performed by
the Master Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under the Pooling and
Servicing Agreement, and except as disclosed by written notice to the Trustee or
in the annual compliance statement or certified public accountant's report
required to be delivered to the Trustee in accordance with the terms of the
Pooling and Servicing Agreement (which has been so delivered to the Trustee),
the Master Servicer has, for the period covered by the Form 10-K Annual Report,
fulfilled its obligations under the Pooling and Servicing Agreement; and
11. The Master Servicer has disclosed to its certified public
accountants and the Depositor all significant deficiencies relating to the
Master Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth in the Pooling
and Servicing Agreement.
H-1
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement, dated [___]
(the "Pooling and Servicing Agreement"), among the Depositor as depositor,
CitiMortgage, Inc. as master servicer and trust administrator and U.S. Bank
National Association as trustee.
CITIMORTGAGE, INC.
By:____________________________
Name:
Title:
Date:
H-2
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
[FILED BY PAPER]
Schedule 3-1