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
<PAGE>
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
iv
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Schedule 1 Mortgage Loan
Schedule
Schedule 2 Prepayment
Charge Schedule
v
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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 2034
I-LTA1
(2)
$1,600,000.00
November 2034
I-LTA2
(2)
$910,000.00
November 2034
I-LTA3
(2)
$389,000.00
November 2034
I-LTA4
(2)
$593,499.00
November 2034
I-LTA5
(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 2034
I-LTP
(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.
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REMIC II
--------
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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<PAGE>
"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.
5
<PAGE>
"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.
6
<PAGE>
"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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<PAGE>
"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
<PAGE>
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.
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<PAGE>
"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 A-1
I-LTA2
Class A-2
I-LTA3
Class A-3
I-LTA4
Class A-4
I-LTA5
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, One
Federal Street, 3rd Floor, Boston,
Massachusetts 02110, 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, 388
Greenwich Street, 14th Floor, New York, New
York 10013, 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
<PAGE>
"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
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<PAGE>
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, Moody's 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 Freddie 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.
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<PAGE>
"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
<PAGE>
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.
"Fannie Mae": Fannie Mae, 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
<PAGE>
(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.
"Freddie Mac": Freddie 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 M-1,
Class M-2, 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.
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<PAGE>
"Initial Sub-Servicing Agreement": The Seller's Warranties and
Servicing Agreement, dated as of November
1, 2004, between Wells 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, Wells
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
<PAGE>
"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
<PAGE>
-------------------------------------------------------------------------
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
Sarbanes-Oxley 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 Sarbanes-Oxley 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 Sarbanes-Oxley 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
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<PAGE>
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": Moody's 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.
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<PAGE>
"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
<PAGE>
(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
<PAGE>
"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
<PAGE>
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": Wells Fargo Bank, N.A.
23
<PAGE>
"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
<PAGE>
(y) the aggregate Uncertificated Balance of
REMIC I Regular Interest
I-LTA1, I-LTA2, I-LTA3, I-LTA4, I-LTA5,
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
<PAGE>
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,
Keogh 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
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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
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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
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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 Fannie Mae and Freddie 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.
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"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, Moody's 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
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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
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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-
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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.
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"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 Fannie Mae 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 42
United States 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
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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
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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
McGraw-Hill 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
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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, Wells 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.
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"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 Jones 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%
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"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
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<PAGE>
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.
"Wells Fargo": Wells 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.
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<PAGE>
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.
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<PAGE>
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);
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<PAGE>
(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)
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<PAGE>
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).
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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.
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(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
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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.
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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 Fannie Mae or Freddie 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
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Depositor, and the Class R Certificates in
authorized denominations evidencing
the Class R-I Interest and the Class R-II
Interest.
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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
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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.
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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, Wells Fargo is the
Sub-Servicer with respect to the
Mortgage Loans and in such capacity Wells
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 Freddie Mac or Fannie 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
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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
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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
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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
