Citigroup MORTGAGE LOAN TRUST INC.
Depositor
UST MORTGAGE COMPANY
Master Servicer
U.S. BANK NATIONAL ASSOCIATION
Trustee
and
CITIBANK, N.A.
Trust Administrator
-----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2004
-----------------------------------------
Mortgage Pass-Through Certificates
Series 2004-UST1
ARTICLE I.........................................................................................................3
DEFINITIONS.......................................................................................................3
SECTION 1.01 Defined Terms............................................................................3
SECTION 1.02 Allocation of Certain Interest Shortfalls...............................................57
ARTICLE II. CONVEYANCE OF MORTGAGE LOANS.........................................................................58
ORIGINAL ISSUANCE OF CERTIFICATES................................................................................58
SECTION 2.01 Conveyance of Mortgage Loans............................................................58
SECTION 2.02 Acceptance of REMIC I by the Trustee....................................................62
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by the Sellers or the Depositor...........63
SECTION 2.04 Reserved................................................................................66
SECTION 2.05 Representations, Warranties and Covenants of the Master Servicer........................66
SECTION 2.06 Issuance of the Certificates............................................................67
SECTION 2.07 Conveyance of the REMIC I Regular Interests; Acceptance of REMIC II by the Trustee......68
ARTICLE III. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS..................................................69
SECTION 3.01 Master Servicer to Act as Master Servicer...............................................69
SECTION 3.02 Sub-Servicing Agreements Between the Master Servicer and Sub-Servicers................71
SECTION 3.03 Successor Sub-Servicers.................................................................72
SECTION 3.04 Liability of the Master Servicer........................................................72
SECTION 3.05 No Contractual Relationship Between Sub-Servicers, Trust Administrator, Trustee or
Certificateholders......................................................................72
SECTION 3.06 Assumption or Termination of Sub-Servicing Agreements by Trust Administrator............73
SECTION 3.07 Collection of Certain Mortgage Loan Payments............................................73
SECTION 3.08 Sub-Servicing Accounts..................................................................74
SECTION 3.09 Collection of Taxes, Assessments and Similar Items; Servicing Accounts..................74
SECTION 3.10 Collection Account and Distribution Account.............................................75
SECTION 3.11 Withdrawals from the Collection Account and Distribution Account........................77
SECTION 3.12 Investment of Funds in the Collection Account and the Distribution Account..............79
SECTION 3.13 [Reserved]..............................................................................80
SECTION 3.14 Maintenance of Hazard Insurance and Errors and Omissions and Fidelity Coverage..........80
SECTION 3.15 Enforcement of Due-On-Sale Clauses; Assumption Agreements...............................82
SECTION 3.16 Realization Upon Defaulted Mortgage Loans...............................................83
SECTION 3.17 Trustee to Cooperate; Release of Mortgage Files.........................................85
SECTION 3.18 Servicing Compensation..................................................................86
SECTION 3.19 Reports to the Trustee and the Trust Administrator; Collection Account Statements.......87
SECTION 3.20 Statement as to Compliance..............................................................87
SECTION 3.21 Independent Public Accountants' Servicing Report........................................87
SECTION 3.22 Access to Certain Documentation.........................................................88
SECTION 3.23 Title, Management and Disposition of REO Property.......................................88
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SECTION 3.24 Obligations of the Master Servicer in Respect of Prepayment Interest Shortfalls.........92
SECTION 3.25 Obligations of the Master Servicer in Respect of Monthly Payments.......................92
ARTICLE IV. PAYMENTS TO CERTIFICATEHOLDERS.......................................................................93
SECTION 4.01 Distributions...........................................................................93
SECTION 4.02 Statements to Certificateholders........................................................97
SECTION 4.03 Remittance Reports; P&I Advances.......................................................100
SECTION 4.04 Allocation of Extraordinary Trust Fund Expenses and Realized Losses....................102
SECTION 4.05 Compliance with Withholding Requirements...............................................104
SECTION 4.06 Distributions on and Allocations of Realized Losses to the REMIC I Regular Interests...104
SECTION 4.07 Commission Reporting...................................................................105
SECTION 4.08 Excess Diverted Interest Reserve Account...............................................107
ARTICLE V. THE CERTIFICATES.....................................................................................109
SECTION 5.01 The Certificates.......................................................................109
SECTION 5.02 Registration of Transfer and Exchange of Certificates..................................111
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates......................................115
SECTION 5.04 Persons Deemed.........................................................................116
SECTION 5.05 Certain Available Information..........................................................116
ARTICLE VI. THE DEPOSITOR AND THE MASTER SERVICER...............................................................117
SECTION 6.01 Liability of the Depositor and the Master Servicer.....................................117
SECTION 6.02 Merger or Consolidation of the Depositor or the Master Servicer........................117
SECTION 6.03 Limitation on Liability of the Depositor, the Master Servicer and Others...............117
SECTION 6.04 Limitation on Resignation of the Master Servicer.......................................118
SECTION 6.05 Rights of the Depositor in Respect of the Master Servicer..............................119
ARTICLE VII. DEFAULT............................................................................................120
SECTION 7.01 Master Servicer Events of Default......................................................120
SECTION 7.02 Trust Administrator or Trustee to Act; Appointment of Successor........................122
SECTION 7.03 Notification to Certificateholders.....................................................124
SECTION 7.04 Waiver of Master Servicer Events of Default............................................124
ARTICLE VIII. CONCERNING THE TRUSTEE AND THE TRUST ADMINISTRATOR................................................125
SECTION 8.01 Duties of Trustee and Trust Administrator..............................................125
SECTION 8.02 Certain Matters Affecting the Trustee and the Trust Administrator......................126
SECTION 8.03 Neither the Trustee nor Trust Administrator Liable for Certificates or Mortgage Loans..127
SECTION 8.04 Trustee and Trust Administrator May Own Certificates...................................128
SECTION 8.05 Trustee's and Trust Administrator's Fees and Expenses..................................128
SECTION 8.06 Eligibility Requirements for Trustee and Trust Administrator...........................129
SECTION 8.07 Resignation and Removal of the Trustee and the Trust Administrator.....................129
SECTION 8.08 Successor Trustee or Trust Administrator...............................................130
SECTION 8.09 Merger or Consolidation of Trustee.....................................................131
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee..........................................131
SECTION 8.11 Appointment of Office or Agency........................................................132
SECTION 8.12 Representations and Warranties.........................................................132
ARTICLE IX. TERMINATION.........................................................................................134
SECTION 9.01 Termination Upon Repurchase or Liquidation of the Trust Fund...........................134
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SECTION 9.02 Additional Termination Requirements....................................................136
ARTICLE X.......................................................................................................137
REMIC PROVISIONS................................................................................................137
SECTION 10.01 REMIC Administration...................................................................137
SECTION 10.02 Transactions and Activities............................................................140
SECTION 10.03 Master Servicer and Trust Administrator Indemnification................................140
ARTICLE XI. MISCELLANEOUS PROVISIONS............................................................................141
SECTION 11.01 Amendment..............................................................................141
SECTION 11.02 Recordation of Agreement; Counterparts.................................................142
SECTION 11.03 Limitation on Rights of Certificateholders.............................................142
SECTION 11.04 Governing Law..........................................................................143
SECTION 11.05 Notices................................................................................143
SECTION 11.06 Severability of Provisions.............................................................144
SECTION 11.07 Notice to Rating Agencies..............................................................144
SECTION 11.08 Article and Section References.........................................................145
SECTION 11.09 Grant of Security Interest.............................................................145
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Exhibits
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Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class A-5 Certificate
Exhibit A-6 Form of Class A-6 Certificate
Exhibit A-7 [Reserved]
Exhibit A-8 [Reserved]
Exhibit A-9 [Reserved]
Exhibit A-10 Form of Class B-1 Certificate
Exhibit A-11 Form of Class B-2 Certificate
Exhibit A-12 Form of Class B-3 Certificate
Exhibit A-13 Form of Class B-4 Certificate
Exhibit A-14 Form of Class B-5 Certificate
Exhibit A-15 Form of Class B-6 Certificate
Exhibit A-16 Form of Class R Certificate
Exhibit B [Reserved]
Exhibit C-1 Form of Trustee's Initial Certification
Exhibit C-2 Form of Trustee's Final Certification
Exhibit C-3 Form of Receipt of Mortgage Notes
Exhibit D Form of Mortgage Loan Purchase Agreement
Exhibit E-1 Request for Release
Exhibit E-2 Request for Release (Mortgage Loans paid in full)
Exhibit F-1 Form of Transferor Representation Letter and Form of
Transferee Representation Letter in Connection with Transfer
of 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 Report Pursuant to Section 4.07
Exhibit I Statement as to Compliance
Exhibit J-1 Form of Certification to Be Provided by the Depositor with
Form 10-K
Exhibit J-2 Form of Certification to Be Provided to Depositor by the Trust
Administrator
Exhibit J-3 Form of Certification to Be Provided to Depositor by the
Master Servicer
Schedule 1 Mortgage Loan Schedule
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This Pooling and Servicing Agreement, is dated and effective
as of October 1, 2004, among CITIGROUP MORTGAGE LOAN TRUST INC., as Depositor,
UST MORTGAGE COMPANY, as Master Servicer, U.S. BANK NATIONAL ASSOCIATION, as
Trustee and CITIBANK, N.A. as Trust Administrator.
PRELIMINARY STATEMENT:
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 subject to this Agreement as a REMIC (as defined herein)
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, solely 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 REGULAR INITIAL UNCERTIFICATED LATEST POSSIBLE
INTEREST REMIC I REMITTANCE RATE BALANCE MATURITY DATE(1)
-------- ----------------------- ------- ----------------
LT-1SUB Variable(2) $ 325.65 August 2034
LT-1GRP Variable(2) $ 11,842.25 August 2034
LT-2SUB Variable(2) $ 143.42 August 2034
LT-2GRP Variable(2) $ 5,215.72 August 2034
LT-3SUB Variable(2) $ 579.65 August 2034
LT-3GRP Variable(2) $ 21,078.25 August 2034
LT-4SUB Variable(2) $ 450.29 August 2034
LT-4GRP Variable(2) $ 16,372.69 August 2034
LT-5SUB Variable(2) $ 1,074.75 August 2034
LT-5GRP Variable(2) $ 39,081.85 August 2034
LT-6SUB Variable(2) $ 248.70 August 2034
LT-6GRP Variable(2) $ 9,040.40 August 2034
LT-ZZ Variable(2) $ 1,026,206,110.88 August 2034
LT-R Variable(2) $ 100.00 August 2034
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(1) Solely 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
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As provided herein, the Trust Administrator will elect to
treat the segregated pool of assets consisting of the REMIC I Regular Interests
as a REMIC (as defined herein) for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC II". The Class R-II
Interest will be the sole class of "residual interests" in REMIC II for purposes
of the REMIC Provisions (as defined herein). The following table irrevocably
sets forth the designation, the Pass-Through Rate, the initial aggregate
Certificate Principal Balance and, solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the Classes of Certificates that evidence "regular interests" or
"residual interests" in REMIC II.
Designation Pass-Through Rate Initial Aggregate Certificate Latest Possible
Principal Balance Maturity Date(1)
Class A-1 Variable(2) $ 115,166,000.00 August 2034
Class A-2 Variable(2) $ 50,723,000.00 August 2034
Class A-3 Variable(2) $ 204,986,000.00 August 2034
Class A-4 Variable(2) $ 159,224,000.00 August 2034
Class A-5 Variable(2) $ 380,071,000.00 August 2034
Class A-6 Variable(2) $ 87,917,000.00 August 2034
Class B-1 Variable(2) $ 12,316,000.00 August 2034
Class B-2 Variable(2) $ 6,158,000.00 August 2034
Class B-3 Variable(2) $ 3,592,000.00 August 2034
Class B-4 Variable(2) $ 2,053,000.00 August 2034
Class B-5 Variable(2) $ 1,539,000.00 August 2034
Class B-6 Variable(2) $ 2,566,464.49 August 2034
---------------
(1) Solely 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 Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
As of the Cut-off Date, the Original Group I Mortgage Loans
had an aggregate Scheduled Principal Balance equal to $118,422,466.07. As of the
Cut-off Date, the Original Group II Mortgage Loans had an aggregate Scheduled
Principal Balance equal to $52,157,199.82. As of the Cut-off Date, the Original
Group III Mortgage Loans had an aggregate Scheduled Principal Balance equal to
$210,782,453.53. As of the Cut-off Date, the Original Group IV Mortgage Loans
had an aggregate Scheduled Principal Balance equal to $163,726,939.98. As of the
Cut-off Date, the Original Group V Mortgage Loans had an aggregate Scheduled
Principal Balance equal to $390,818,501.40. As of the Cut-off Date, the Original
Group VI Mortgage Loans had an aggregate Scheduled Principal Balance equal to
$90,404,003.69.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the Trust Administrator 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.
"Adjustment Amount": With respect to each anniversary of the
Cut-off Date, an amount equal to the greatest of (i) 1.00% multiplied by the
aggregate outstanding Stated Principal Balance of the Mortgage Loans on the
Distribution Date immediately preceding such anniversary, (ii) the aggregate
outstanding Stated Principal Balance (as of the immediately preceding
Distribution Date) of the Mortgage Loans secured by Mortgaged Properties located
in the California postal zip code area in which the highest percentage of
related Mortgage Loans based on outstanding principal balance are located and
(iii) two times the outstanding principal balance of the Mortgage Loan having
the largest outstanding Stated Principal Balance, in each case as of such
anniversary of the Cut-off Date.
"Adjustment Date": With respect to each Mortgage Loan, the
first day of the month in which the Mortgage Rate of a Mortgage Loan changes
pursuant to the related Mortgage Note. The first Adjustment Date following the
Cut-off Date as to each Mortgage Loan is set forth in the Mortgage Loan
Schedule.
"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.
"Aggregate Senior Percentage": With respect to any
Distribution Date and the Class A Certificates, the lesser of (a) 100% and (b) a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class A Certificates for such Distribution
Date and the denominator of which is the sum of (i) the aggregate Scheduled
Principal Balance of the Mortgage Loans, plus (ii) the aggregate Scheduled
Principal Balance of the REO Properties, in each case before reduction for any
Realized Losses on such Distribution Date.
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"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": The sum of the Group I
Available Distribution Amount, the Group II Available Distribution Amount, the
Group III Available Distribution Amount, the Group IV Available Distribution
Amount, the Group V Available Distribution Amount and the Group VI Available
Distribution Amount.
"Balloon Loan": Any Mortgage Loan that provided on the date of
origination for an amortization schedule extending beyond its stated maturity
date.
"Balloon Payment": With respect to any Balloon Loan, as of any
date of determination, the Monthly Payment payable on the stated maturity date
of such Mortgage Loan.
"Bankruptcy Amount": As of any date of determination, an
amount equal to the excess, if any, of (A) $100,000 over (B) the aggregate
amount of Bankruptcy Losses allocated solely to the Subordinate Certificates in
accordance with Section 4.04.
"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.
"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
or the State of Florida, or in the cities in which the Corporate Trust Office of
the Trustee and the Trust Administrator are located, are authorized or obligated
by law or executive order to be closed.
"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
Inc., Mortgage Pass-Through Certificates, Series 2004-UST1, 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 of such Class of Certificates on such Distribution Date (after
giving effect to any distributions of principal and allocations of Realized
Losses and
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Extraordinary Trust Fund Expenses in reduction of the aggregate
Certificate Principal Balance of such Class of Certificates to be made on such
Distribution Date), and the denominator of which is the initial aggregate
Certificate Principal Balance 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 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.
"Certificate Principal Balance": With respect to any
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, reduced by the aggregate
of (a) all distributions of principal made thereon on such immediately prior
Distribution Date and (b) without duplication of amounts described in clause (a)
above, reductions in the Certificate Principal Balance thereof in connection
with allocations thereto of Realized Losses on the Mortgage Loans and
Extraordinary Trust Fund Expenses on such immediately prior Distribution Date
(or, in the case of any date of determination up to and including the initial
Distribution Date, the initial Certificate Principal Balance of such
Certificate, as stated on the face thereof); provided, however, that the
Certificate Principal Balance of the Class of Subordinate Certificates
outstanding with the highest numerical designation at any given time shall not
be greater than the Percentage Interest evidenced by such Certificate multiplied
by the excess, if any, of (A) the then aggregate Stated Principal Balance of the
Mortgage Loans over (B) the then aggregate Certificate Principal Balances of all
other Classes of Certificates then outstanding.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same class designation.
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"Class A Certificates": Any Class A-1 Certificate, Class A-2
Certificate, Class A-3 Certificate, Class A-4 Certificate, Class A-5 Certificate
or Class A-6 Certificate.
"Class A-1 Certificate": Any one of the Class A-1 Certificates
executed, authenticated and delivered by the Trust Administrator, 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 Certificate": Any one of the Class A-2 Certificates
executed, authenticated and delivered by the Trust Administrator, 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 A-3 Certificate": Any one of the Class A-3 Certificates
executed, authenticated and delivered by the Trust Administrator, 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 A-4 Certificate": Any one of the Class A-4 Certificates
executed, authenticated and delivered by the Trust Administrator, 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 A-5 Certificate": Any one of the Class A-5
Certificates executed, authenticated and delivered by the Trust Administrator,
substantially in the form annexed hereto as Exhibit A-5 and evidencing a Regular
Interest in REMIC II for purposes of the REMIC Provisions.
"Class A-6 Certificate": Any one of the Class A-6
Certificates executed, authenticated and delivered by the Trust Administrator,
substantially in the form annexed hereto as Exhibit A-6 and evidencing a Regular
Interest in REMIC II for purposes of the REMIC Provisions.
"Class A Principal Adjustment Amount": As to any Distribution
Date on which the aggregate Certificate Principal Balance of any Class of Class
A Certificates has been reduced to zero, any remaining prepayments and
recoveries of principal collected in respect of the Mortgage Loans (and, with
respect to any Distribution Date on which the aggregate Certificate Principal
Balance of the Subordinate Certificates has been reduced to zero, any remaining
scheduled payments of principal in respect of the Mortgage Loans) in such Loan
Group.
"Class B Percentage": Any one of the Class B-1 Percentage, the
Class B-2 Percentage, the Class B-3 Percentage, the Class B-4 Percentage, the
Class B-5 Percentage or the Class B-6 Percentage.
"Class B-1 Certificate": Any one of the Class B-1 Certificates
executed, authenticated and delivered by the Trust Administrator, substantially
in the form annexed hereto
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as Exhibit A-10 and evidencing a Regular Interest in REMIC II for purposes of
the REMIC Provisions.
"Class B-1 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the aggregate Certificate Principal Balance of the Class B-1
Certificates immediately prior to such date over the aggregate amount, if any,
payable to the Holders of the Class B-1 Certificates on such date pursuant to
Section 4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class B-2 Certificate": Any one of the Class B-2 Certificates
executed, authenticated and delivered by the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-11 and evidencing a Regular Interest in
REMIC II for purposes of the REMIC Provisions.
"Class B-2 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the aggregate Certificate Principal Balance of the Class B-2
Certificates immediately prior to such date over the aggregate amount, if any,
payable to the Holders of the Class B-2 Certificates on such date pursuant to
Section 4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class B-3 Certificate": Any one of the Class B-3 Certificates
executed, authenticated and delivered by the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-12 and evidencing a Regular Interest in
REMIC II for purposes of the REMIC Provisions.
"Class B-3 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the aggregate Certificate Principal Balance of the Class B-3
Certificates immediately prior to such date over the aggregate amount, if any,
payable to the Holders of the Class B-3 Certificates on such date pursuant to
Section 4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class B-4 Certificate": Any one of the Class B-4 Certificates
executed, authenticated and delivered by the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-13 and evidencing a Regular Interest in
REMIC II for purposes of the REMIC Provisions.
"Class B-4 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the aggregate Certificate Principal Balance of the Class B-4
Certificates immediately prior to such date over the aggregate amount, if any,
payable to the Holders of the Class B-4 Certificates on such date pursuant to
Section 4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
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"Class B-5 Certificate": Any one of the Class B-5 Certificates
executed, authenticated and delivered by the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-14 and evidencing a Regular Interest in
REMIC II for purposes of the REMIC Provisions.
"Class B-5 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the aggregate Certificate Principal Balance of the Class B-5
Certificates immediately prior to such date over the aggregate amount, if any,
payable to the Holders of the Class B-5 Certificates on such date pursuant to
Section 4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class B-6 Certificate": Any one of the Class B-6 Certificates
executed, authenticated and delivered by the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-15 and evidencing a Regular Interest in
REMIC II for purposes of the REMIC Provisions.
"Class B-6 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the aggregate Certificate Principal Balance of the Class B-6
Certificates immediately prior to such date over the aggregate amount, if any,
payable to the Holders of the Class B-6 Certificates on such date pursuant to
Section 4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class R Certificate": Any one of the Class R Certificates
executed, authenticated and delivered by the Trust Administrator, substantially
in the form annexed hereto as Exhibit A-16 and evidencing the ownership of the
Class R-I Interest and the Class R-II Interest for purposes of the REMIC
Provisions.
"Class R-I Interest": The Residual Interest in REMIC I for the
purposes of the REMIC Provisions.
"Class R-II Interest": The Residual Interest in REMIC II for
the purposes of the REMIC Provisions.
"Closing Date": October 26, 2004.
"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, "UST Mortgage Company, as Master Servicer for U.S. Bank National
Association, as Trustee, in trust for the registered holders of Citigroup
Mortgage Loan Trust Inc., Mortgage Pass-Through Certificates, Series 2004-UST1."
The Collection Account must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
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"Compensating Interest": With respect to the Master Servicer,
the amount in respect of Prepayment Interest Shortfalls required to be paid by
the Master Servicer pursuant to Section 3.24 from its own funds without right of
reimbursement except as provided in Section 3.24.
"Cooperative": A private, cooperative housing corporation
which owns or leases land and all or part of a building or buildings, including
apartments, spaces used for commercial purposes and common areas therein and
whose board of directors authorizes, among other things, the sale of Cooperative
stock.
"Cooperative Assets": Shares issued by Cooperatives, the
related Cooperative Lease and any other collateral securing the Cooperative
Loans.
"Cooperative Building": The building and other property owned
by a Cooperative.
"Cooperative Lease": With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the Cooperative
Apartment occupied by the Mortgagor and relating to the related Cooperative
Assets, which lease or agreement confers an exclusive right to the holder of
such Cooperative Assets to occupy such apartment.
"Cooperative Loans": Any of the Mortgage Loans made in respect
of a cooperative apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related cooperative stock certificate, (iii) an
assignment of the Cooperative Lease, (iv) financing statements and (v) a stock
power (or other similar instrument), and ancillary thereto, a recognition
agreement between the cooperative and the originator of the cooperative loan,
each of which was transferred and assigned to the Trustee pursuant to Section
2.01 and are from time to time held as part of the Trust Fund.
"Cooperative Unit": A specific dwelling unit in a Cooperative
Building as to which exclusive occupancy rights have been granted pursuant to a
Cooperative Lease.
"Corporate Trust Office": The principal corporate trust office
of the Trustee or the Trust Administrator at which at any particular time its
corporate trust business in connection with this Agreement shall be
administered, which office, with respect to the Trust Administrator, at the date
of the execution of this instrument is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other address as the Trust Administrator
may designate from time to time by notice to the Certificateholders, the
Depositor, the Master Servicer and the Trustee and, with respect to the Trustee,
at the date of the execution of this instrument is located at ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as the
Trustee may designate from time to time by notice to the Certificateholders, the
Depositor, the Master Servicer and the Trust Administrator.
"Cross-Collateralization Date": Any Distribution Date on which
there exists one or more Undercollateralizated Loan Groups and one or more
Overcollateralized Loan Groups.
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"Curtailment": Any Principal Prepayment made by a Mortgagor
which is not a Principal Prepayment in full.
"Cut-off Date": With respect to each Original Mortgage Loan,
October 1, 2004. 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.
"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.
"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 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 federal- or state-chartered
depository institution or trust company, including 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 outstanding unsecured commercial paper or other
short-term unsecured debt obligations (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the short-term unsecured debt obligations of such holding company) that
have the highest short-term ratings of each Rating Agency at the time any
amounts are held on deposit therein; provided, however, that notwithstanding the
above definition, each of UST Mortgage Company and its affiliates shall be a
Depository Institution.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
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"Determination Date": With respect to each Distribution Date,
the 15th day of the calendar month in which such Distribution Date occurs or, if
such 15th day is not a Business Day, the Business Day immediately preceding such
15th 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 ▇▇▇▇▇▇▇ 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 or the Trust Administrator based upon
an Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause REMIC I 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.
"Distribution Account": The trust account or accounts created
and maintained by the Trust Administrator pursuant to Section 3.10(b) which
shall be entitled "Citibank, N.A., as Trust Administrator for U.S. Bank National
Association as Trustee, in trust for the registered holders of Citigroup
Mortgage Loan Trust Inc., Mortgage Pass- Through Certificates, Series
2004-UST1." 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 November 2004.
"Diverted Interest Amount": With respect to any Distribution
Date, one month's interest accrued during the related Interest Accrual Period on
the Overcollateralized Amount at the Pass-Through Rate for the Class A
Certificates related to the Undercollateralized Loan Group
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or Loan Groups and any other unpaid interest shortfalls on the Class A
Certificates related to the Undercollateralized Loan Group or Loan Groups, to
the extent available.
"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 (or, in the case of any Mortgage Loan which has
its Monthly Payment due on a day each calendar month other than the first day of
each calendar month, the date that such Monthly Payment is due and which falls
within the Due Period relating to such Distribution Date).
"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 first day of the
calendar month in which such Distribution Date occurs.
"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 Bankruptcy Loss": Any Bankruptcy Loss, or portion
thereof, which exceeds the then applicable Bankruptcy Amount.
"Excess Diverted Interest Reserve Account": The account
established and maintained pursuant to Section 4.08.
"Excess Diverted Interest Reserve Amount": With respect to the
Class A Certificates and any Distribution Date, an amount equal to the excess,
if any, of (i) one month's interest accrued during the related Interest Accrual
Period on the Overcollateralized Amount at the Pass-Through Rate for the Class A
Certificates relating to the Overcollateralized Loan Group or Loan Groups over
(ii) the Diverted Interest Amount.
"Excess Fraud Loss": Any Fraud Loss, or portion thereof, which
exceeds the then applicable Fraud Loss Amount.
"Excess Loss": Any Excess Bankruptcy Loss, Excess Special
Hazard Loss, Excess Fraud Loss or Extraordinary Loss.
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"Excess Special Hazard Loss": Any Special Hazard Loss, or
portion thereof, that exceeds the then applicable Special Hazard Amount.
"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 Servicing Fee Rate.
"Extraordinary Loss": Any Realized Loss or portion thereof
caused by or resulting from:
(i) nuclear or chemical reaction or nuclear radiation
or radioactive or chemical contamination, all whether
controlled or uncontrolled and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused
by, contributed to or aggravated by a peril covered by the
definition of the term "Special Hazard Loss";
(ii) hostile or warlike action in time of peace or
war, including action in hindering, combating or defending
against an actual, impending or expected attack by any
government or sovereign power, DE JURE or DE FACTO, or by any
authority maintaining or using military, naval or air forces,
or by military, naval or air forces, or by an agent of any
such government, power, authority or forces;
(iii) any weapon of war employing atomic fission or
radioactive forces whether in time of peace or war; and
(iv) insurrection, rebellion, revolution, civil war,
usurped power or action taken by governmental authority in
hindering, combating or defending against such an occurrence,
seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public
authority, or risks of contraband or illegal transactions or
trade.
"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 Trustee or the Trust
Administrator from the Trust Fund pursuant to Section 2.01, Section 7.02 or
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.
"▇▇▇▇▇▇ ▇▇▇": ▇▇▇▇▇▇ ▇▇▇, formerly known as the Federal
National Mortgage Association, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
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"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 Sellers, 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.
"Fitch": Fitch Ratings, or its successor in interest.
"Fraud Loss": Any Realized Loss or portion thereof sustained
by reason of a default arising from intentional fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan.
"Fraud Loss Amount": Initially, an amount equal to
approximately $10,304,539. As of any date of determination after the Cut-off
Date, an amount equal to: (x) prior to the third anniversary of the Cut-off
Date, an amount equal to 1.00% of the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud Losses
on the Mortgage Loans allocated solely to the Subordinate Certificates in
accordance with Section 4.04 since the Cut-off Date up to such date of
determination; (y) from the third anniversary to prior to the fifth anniversary
of the Cut-off Date, an amount equal to (1) the lesser of (a) the Fraud Loss
Amount as of the most recent anniversary of the Cut-off Date and (b) 0.50% of
the aggregate outstanding principal balance of all of the Mortgage Loans as of
the most recent anniversary of the Cut-off Date minus (2) the Fraud Losses on
the Mortgage Loans allocated solely to the Subordinate Certificates in
accordance with Section 4.04 since the Cut-off Date up to such date of
determination; and (z) on and after the fifth anniversary of the Cut-off Date,
the Fraud Loss Amount will be zero. In addition, after the Certificate Principal
Balances of the Subordinate Certificates are reduced to zero, the Fraud Loss
Amount will be zero.
"▇▇▇▇▇▇▇ Mac": ▇▇▇▇▇▇▇ Mac, formally known as the Federal Home
Loan Mortgage Corporation, or any successor thereto.
"Gross Margin": With respect to each Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
"Group I Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group I Overcollateralized Amount and the denominator of which
is (y) the sum of the Group I Overcollateralized Amount, the Group II
Overcollateralized Amount, the Group III Overcollateralized Amount, the Group IV
Overcollateralized Amount, the Group V Overcollateralized Amount and the Group
VI Overcollateralized Amount.
"Group I Available Distribution Amount": With respect to any
Distribution Date and the Group I Mortgage Loans, an amount equal to the excess
of (i) the sum attributable to such Mortgage Loans of (a) the aggregate of the
Monthly Payments due on or before the Due
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Date relating to such Distribution Date and received by the Master Servicer on
or prior to the related Determination Date, (b) Liquidation Proceeds, Insurance
Proceeds, Principal Prepayments, proceeds from repurchases of and substitutions
for Mortgage Loans, Subsequent Recoveries and other unscheduled 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 amounts
paid by the Master Servicer in respect of related Prepayment Interest Shortfalls
relating to Principal Prepayments that occurred during the related Prepayment
Period and (d) the aggregate of any P&I Advances made by the Master Servicer for
such Distribution Date, over (ii) the sum attributable to or allocable to such
Mortgage Loans of (a) amounts reimbursable or payable to the Master Servicer,
the Trustee or the Trust Administrator 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)(e) above
deposited in the Collection Account or the Distribution Account in error and (c)
the Servicing Fee payable from the Collection Account pursuant to Section 3.11.
Notwithstanding the foregoing, the Group I Available Distribution Amount for any
Distribution Date shall be increased (in the case of an Undercollateralized Loan
Group with respect to Loan Group I) or decreased (in the case of an
Overcollateralized Loan Group with respect to Loan Group I) by any applicable
Diverted Interest Amount or Class A Principal Adjustment Amount, in each case
for such Distribution Date.
"Group I Excess Diverted Interest Reserve Deposit": An amount
withdrawn from the Excess Diverted Interest Reserve Account equal to the lesser
of (i) the amount on deposit in the Excess Diverted Interest Reserve Account and
(ii) the sum of (a) any interest shortfalls on the Class A-1 Certificates and
(b) the aggregate amount of Realized Losses on the Group I Mortgage Loans on
such Distribution Date.
"Group I Mortgage Loan": A first lien adjustable-rate Mortgage
Loan with a Mortgage Rate currently adjusting or scheduled to adjust within 12
months of the Cut-off Date. The Group I Mortgage Loans are identified as such on
the Mortgage Loan Schedule.
"Group I Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate Scheduled Principal Balance of the
Group I Mortgage Loans plus (b) the aggregate Scheduled Principal Balance of the
REO Properties in Loan Group I over (ii) the aggregate Certificate Principal
Balance of the Class A-1 Certificates immediately prior to such Distribution
Date, in each case, before reduction for any Realized Losses on such
Distribution Date.
"Group I Senior Percentage": With respect to any Distribution
Date and the Class A-1 Certificates, the lesser of (a) 100% and (b) a fraction,
expressed as a percentage, the numerator of which is the excess, if any, of the
aggregate Certificate Principal Balance of the Class A-1 Certificates for such
Distribution Date over the aggregate amount, if any, payable to the Holders of
the Class A-1 Certificates on such date pursuant to clause (d) of the definition
of "Senior Principal Distribution Amount," and the denominator of which is the
sum of (i) the aggregate Scheduled Principal Balance of the Group I Mortgage
Loans, plus (ii) the aggregate
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Scheduled Principal Balance of the REO Properties in Loan Group I, in each case
before reduction for any Realized Losses on such Distribution Date.
Notwithstanding the foregoing, on any Cross-Collateralization
Date on which the aggregate Scheduled Principal Balance of the Group I Mortgage
Loans exceeds the aggregate Certificate Principal Balance of the Class A-1
Certificates, the Group I Senior Percentage will equal the sum of the aggregate
Certificate Principal Balance of the Class A-1 Certificates immediately prior to
such Distribution Date plus the Group I Allocation Percentage of the
Overcollateralized Amount divided by the aggregate Scheduled Principal Balance
of the Group I Mortgage Loans immediately prior to such Distribution Date. On
any Distribution Date after the reduction of the aggregate Certificate Principal
Balance of the Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificate, Class A-5 Certificates and Class A-6 Certificates to zero, the
Group I Senior Percentage will be a percentage equal to the aggregate
Certificate Principal Balance of the Class A-1 Certificates immediately prior to
such Distribution Date divided by the aggregate Scheduled Principal Balance of
all of the Mortgage Loans immediately prior to such Distribution Date.
"Group I Senior Prepayment Percentage": With respect to any
Distribution Date and the Class A-1 Certificates within the range indicated
below, the percentage as indicated below:
Distribution Date Group I Senior Prepayment Percentage
November 2004 through October 2011 100%
November 2011 through October 2012 Group I Senior Percentage, plus 70% of the Group I
Subordinate Percentage
November 2012 through October 2013 Group I Senior Percentage, plus 60% of the Group I
Subordinate Percentage
November 2013 through October 2014 Group I Senior Percentage, plus 40% of the Group I
Subordinate Percentage
November 2014 through October 2015 Group I Senior Percentage, plus 20% of the Group I
Subordinate Percentage
November 2015 and thereafter Group I Senior Percentage;
PROVIDED, HOWEVER, no reduction to the Group I Senior Prepayment Percentage
described above shall be made as of any Distribution Date unless (i) the
outstanding principal balance of the Mortgage Loans delinquent 60 days or more
(including REO Properties, Mortgage Loans in foreclosure and Mortgage Loans for
which the related Mortgagor has filed for bankruptcy) averaged over the last six
months does not exceed 50% of the sum of the then current Certificate Principal
Balances of the Subordinate Certificates and (ii) Realized Losses on the
Mortgage Loans to date are less than the then applicable Trigger Amount.
On any Distribution Date on which Realized Losses on the
Mortgage Loans to date are greater than the then applicable Trigger Amount, the
Group I Senior Prepayment
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Percentage will be the greater of (x) the Group I Senior Prepayment Percentage
for such Distribution Date or (y) the Group I Senior Prepayment Percentage for
the immediately preceding Distribution Date.
Notwithstanding the above, if on any Distribution Date (a) the
Subordinate Percentage, prior to giving effect to any distributions on such
Distribution Date, equals or exceeds two times the initial Subordinate
Percentage, (b) the provisions of clause (i) immediately above are met and (c)
(i) on or prior to the Distribution Date occurring in November 2007, cumulative
Realized Losses on the Mortgage Loans as of the end of the related Prepayment
Period do not exceed 20% of the initial aggregate Certificate Principal Balance
of the Subordinate Certificates and (ii) after the Distribution Date occurring
in November 2007, cumulative Realized Losses on the Mortgage Loans as of the end
of the related Prepayment Period do not exceed 30% of the initial aggregate
Certificate Principal Balance of the Subordinate Certificates, then the Group I
Senior Prepayment Percentage for such Distribution Date will equal the Group I
Senior Percentage plus 50% of the Group I Subordinate Percentage for such
Distribution Date, if such Distribution Date is prior to November 2007, and will
equal the Group I Senior Percentage for such Distribution Date, if such
Distribution Date occurs on or after November 2007.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Group I Senior
Prepayment Percentage shall be 100%.
"Group I Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Group I Senior Percentage.
"Group I Subordinate Prepayment Percentage": With respect to
the Subordinate Certificates and any Distribution Date, 100% minus the Group I
Senior Prepayment Percentage for such Distribution Date.
"Group II Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group II Overcollateralized Amount and the denominator of the
which is (y) the sum of the Group I Overcollateralized Amount, the Group II
Overcollateralized Amount, the Group III Overcollateralized Amount, the Group IV
Overcollateralized Amount, the Group V Overcollateralized Amount and the Group
VI Overcollateralized Amount.
"Group II Available Distribution Amount": With respect to any
Distribution Date and the Group II Mortgage Loans, an amount equal to the excess
of (i) the sum attributable to such Mortgage Loans of (a) the aggregate of the
Monthly Payments due on or before the Due Date relating to such Distribution
Date and received by the Master Servicer on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, proceeds from repurchases of and substitutions for Mortgage Loans,
Subsequent Recoveries and other unscheduled 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 amounts paid by the Master
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Servicer in respect of related Prepayment Interest Shortfalls relating to
Principal Prepayments that occurred during the related Prepayment Period and (d)
the aggregate of any P&I Advances made by the Master Servicer for such
Distribution Date, over (ii) the sum attributable to or allocable to such
Mortgage Loans of (a) amounts reimbursable or payable to the Master Servicer,
the Trustee or the Trust Administrator 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)(e) above
deposited in the Collection Account or the Distribution Account in error and (c)
the Servicing Fee payable from the Collection Account pursuant to Section 3.11.
Notwithstanding the foregoing, the Group II Available Distribution Amount for
any Distribution Date shall be increased (in the case of an Undercollateralized
Loan Group with respect to Loan Group II) or decreased (in the case of an
Overcollateralized Loan Group with respect to Loan Group II) by any applicable
Diverted Interest Amount or Class A Principal Adjustment Amount, in each case
for such Distribution Date.
"Group II Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class A-2
Certificates and (b) the aggregate amount of Realized Losses on the Group II
Mortgage Loans on such Distribution Date.
"Group II Mortgage Loan": A first lien adjustable-rate
Mortgage Loan with a Mortgage Rate scheduled to adjust 25 to 36 months from the
Cut-off Date. The Group II Mortgage Loans are identified as such on the Mortgage
Loan Schedule.
"Group II Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate Scheduled Principal Balance of the
Group II Mortgage Loans plus (b) the aggregate Scheduled Principal Balance of
the REO Properties in Loan Group II over (ii) the aggregate Certificate
Principal Balance of the Class A-2 Certificates immediately prior to such
Distribution Date, in each case, before reduction for any Realized Losses on
such Distribution Date.
"Group II Senior Percentage": With respect to any Distribution
Date and the Class A-2 Certificates, the lesser of (a) 100% and (b) a fraction,
expressed as a percentage, the numerator of which is the excess, if any, of the
aggregate Certificate Principal Balance of the Class A-2 Certificates for such
Distribution Date over the aggregate amount, if any, payable to the Holders of
the Class A-2 Certificates on such date pursuant to clause (d) of the definition
of "Senior Principal Distribution Amount," and the denominator of which is the
sum of (i) the aggregate Scheduled Principal Balance of the Group II Mortgage
Loans, plus (ii) the aggregate Scheduled Principal Balance of the REO Properties
in Loan Group II, in each case before reduction for any Realized Losses on such
Distribution Date.
Notwithstanding the foregoing, on any Cross-Collateralization
Date on which the aggregate Scheduled Principal Balance of the Group II Mortgage
Loans exceeds the aggregate Certificate Principal Balance of the Class A-2
Certificates, the Group II Senior Percentage will equal the sum of the aggregate
Certificate Principal Balance of the Class A-2 Certificates immediately prior to
such Distribution Date plus the Group II Allocation Percentage of the
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Overcollateralized Amount divided by the aggregate Scheduled Principal Balance
of the Group II Mortgage Loans immediately prior to such Distribution Date. On
any Distribution Date after the reduction of the aggregate Certificate Principal
Balance of the Class A-1 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-5 Certificates and Class A-6 Certificates to zero, the
Group II Senior Percentage will be a percentage equal to the aggregate
Certificate Principal Balance of the Class A-2 Certificates immediately prior to
such Distribution Date divided by the aggregate Scheduled Principal Balance of
all of the Mortgage Loans immediately prior to such Distribution Date.
"Group II Senior Prepayment Percentage": With respect to any
Distribution Date and the Class A-2 Certificates within the range indicated
below, the percentage as indicated below:
DISTRIBUTION DATE GROUP II SENIOR PREPAYMENT PERCENTAGE
----------------- -------------------------------------
November 2004 through October 2011 100%
November 2011 through October 2012 Group II Senior Percentage, plus 70% of the Group II
Subordinate Percentage
November 2012 through October 2013 Group II Senior Percentage, plus 60% of the Group II
Subordinate Percentage
November 2013 through October 2014 Group II Senior Percentage, plus 40% of the Group II
Subordinate Percentage
November 2014 through October 2015 Group II Senior Percentage, plus 20% of the Group II
Subordinate Percentage
November 2015 and thereafter Group II Senior Percentage;
PROVIDED, HOWEVER, no reduction to the Group II Senior Prepayment Percentage
described above shall be made as of any Distribution Date unless (i) the
outstanding principal balance of the Mortgage Loans delinquent 60 days or more
(including REO Properties, Mortgage Loans in foreclosure and Mortgage Loans for
which the related Mortgagor has filed for bankruptcy) averaged over the last six
months does not exceed 50% of the sum of the then current Certificate Principal
Balances of the Subordinate Certificates and (ii) Realized Losses on the
Mortgage Loans to date are less than the then applicable Trigger Amount.
On any Distribution Date on which Realized Losses on the
Mortgage Loans to date are greater than the then applicable Trigger Amount, the
Group II Senior Prepayment Percentage will be the greater of (x) the Group II
Senior Prepayment Percentage for such Distribution Date or (y) the Group II
Senior Prepayment Percentage for the immediately preceding Distribution Date.
Notwithstanding the above, if on any Distribution Date (a) the
Subordinate Percentage, prior to giving effect to any distributions on such
Distribution Date, equals or exceeds two times the initial Subordinate
Percentage, (b) the provisions of clause (i) immediately above are met and (c)
(i) on or prior to the Distribution Date occurring in November 2007,
-19-
cumulative Realized Losses on the Mortgage Loans as of the end of the related
Prepayment Period do not exceed 20% of the initial aggregate Certificate
Principal Balance of the Subordinate Certificates and (ii) after the
Distribution Date occurring in November 2007, cumulative Realized Losses on the
Mortgage Loans as of the end of the related Prepayment Period do not exceed 30%
of the initial aggregate Certificate Principal Balance of the Subordinate
Certificates, then the Group II Senior Prepayment Percentage for such
Distribution Date will equal the Group II Senior Percentage plus 50% of the
Group II Subordinate Percentage for such Distribution Date, if such Distribution
Date is prior to November 2007, and will equal the Group II Senior Percentage
for such Distribution Date, if such Distribution Date occurs on or after
November 2007.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Group II Senior
Prepayment Percentage shall be 100%.
"Group II Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Group II Senior Percentage.
"Group II Subordinate Prepayment Percentage": With respect to
the Subordinate Certificates and any Distribution Date, 100% minus the Group II
Senior Prepayment Percentage for such Distribution Date.
"Group III Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group III Overcollateralized Amount and the denominator of
which is (y) the sum of the Group I Overcollateralized Amount, the Group II
Overcollateralized Amount, the Group III Overcollateralized Amount, the Group IV
Overcollateralized Amount, the Group V Overcollateralized Amount and the Group
VI Overcollateralized Amount.
"Group III Available Distribution Amount": With respect to any
Distribution Date and the Group III Mortgage Loans, an amount equal to the
excess of (i) the sum attributable to such Mortgage Loans of (a) the aggregate
of the Monthly Payments due on or before the Due Date relating to such
Distribution Date and received by the Master Servicer on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, proceeds from repurchases of and substitutions for Mortgage Loans,
Subsequent Recoveries and other unscheduled 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 amounts paid by the Master Servicer
in respect of related Prepayment Interest Shortfalls relating to Principal
Prepayments that occurred during the related Prepayment Period and (d) the
aggregate of any P&I Advances made by the Master Servicer for such Distribution
Date, over (ii) the sum attributable to or allocable to such Mortgage Loans of
(a) amounts reimbursable or payable to the Master Servicer, the Trustee or the
Trust Administrator 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)(e) above deposited in the
Collection Account or the Distribution Account in error and (c) the Servicing
Fee payable from the Collection Account pursuant to
-20-
Section 3.11. Notwithstanding the foregoing, the Group III Available
Distribution Amount for any Distribution Date shall be increased (in the case of
an Undercollateralized Loan Group with respect to Loan Group III) or decreased
(in the case of an Overcollateralized Loan Group with respect to Loan Group III)
by any applicable Diverted Interest Amount or Class A Principal Adjustment
Amount, in each case for such Distribution Date.
"Group III Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class A-3
Certificates and (b) the aggregate amount of Realized Losses on the Group III
Mortgage Loans on such Distribution Date.
"Group III Mortgage Loan": A first lien adjustable-rate
Mortgage Loan with a Mortgage Rate scheduled to adjust 37 to 48 months from the
Cut-off Date. The Group III Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
"Group III Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate Scheduled Principal Balance of the
Group III Mortgage Loans plus (b) the aggregate Scheduled Principal Balance of
the REO Properties in Loan Group III over (ii) the aggregate Certificate
Principal Balance of the Class A-3 Certificates immediately prior to such
Distribution Date, in each case, before reduction for any Realized Losses on
such Distribution Date.
"Group III Senior Percentage": With respect to any
Distribution Date and the Class A-3 Certificates, the lesser of (a) 100% and (b)
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the aggregate Certificate Principal Balance of the Class A-3
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class A-3 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate Scheduled Principal Balance
of the Group III Mortgage Loans, plus (ii) the aggregate Scheduled Principal
Balance of the REO Properties in Loan Group III, in each case before reduction
for any Realized Losses on such Distribution Date.
Notwithstanding the foregoing, on any Cross-Collateralization
Date on which the aggregate of the Scheduled Principal Balance of the Group III
Mortgage Loans exceeds the aggregate Certificate Principal Balance of the Class
A-3 Certificates, the Group III Senior Percentage will equal the sum of the
aggregate Certificate Principal Balance of the Class A-3 Certificates
immediately prior to such Distribution Date plus the Group III Allocation
Percentage of Overcollateralized Amount divided by the aggregate Scheduled
Principal Balance of the Group III Mortgage Loans immediately prior to such
Distribution Date. On any Distribution Date after the reduction of the aggregate
Certificate Principal Balance of the Class A-1 Certificates, Class A-2
Certificates, Class A-4 Certificates, Class A-5 Certificates and Class A-6
Certificates to zero, the Group III Senior Percentage will be a percentage equal
to the aggregate Certificate Principal Balance of the Class A-3 Certificates
immediately prior to such Distribution Date divided by the aggregate Scheduled
Principal Balance of all of the Mortgage Loans immediately prior to such
Distribution Date.
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"Group III Senior Prepayment Percentage": With respect to any
Distribution Date and the Class A-3 Certificates within the range indicated
below, the percentage as indicated below:
Distribution Date Group III Senior Prepayment Percentage
November 2004 through October 2011 100%
November 2011 through October 2012 Group III Senior Percentage, plus 70% of the Group III
Subordinate Percentage
November 2012 through October 2013 Group III Senior Percentage, plus 60% of the Group III
Subordinate Percentage
November 2013 through October 2014 Group III Senior Percentage, plus 40% of the Group III
Subordinate Percentage
November 2014 through October 2015 Group III Senior Percentage, plus 20% of the Group III
Subordinate Percentage
November 2015 and thereafter Group III Senior Percentage;
PROVIDED, HOWEVER, no reduction to the Group III Senior Prepayment Percentage
described above shall be made as of any Distribution Date unless (i) the
outstanding principal balance of the Mortgage Loans delinquent 60 days or more
(including REO Properties, Mortgage Loans in foreclosure and Mortgage Loans for
which the related Mortgagor has filed for bankruptcy) averaged over the last six
months does not exceed 50% of the sum of the then current Certificate Principal
Balances of the Subordinate Certificates and (ii) Realized Losses on the
Mortgage Loans to date are less than the then applicable Trigger Amount.
On any Distribution Date on which Realized Losses on the
Mortgage Loans to date are greater than the then applicable Trigger Amount, the
Group III Senior Prepayment Percentage will be the greater of (x) the Group III
Senior Prepayment Percentage for such Distribution Date or (y) the Group III
Senior Prepayment Percentage for the immediately preceding Distribution Date.
Notwithstanding the above, if on any Distribution Date (a) the
Subordinate Percentage, prior to giving effect to any distributions on such
Distribution Date, equals or exceeds two times the initial Subordinate
Percentage, (b) the provisions of clause (i) immediately above are met and (c)
(i) on or prior to the Distribution Date occurring in November 2007, cumulative
Realized Losses on the Mortgage Loans as of the end of the related Prepayment
Period do not exceed 20% of the initial aggregate Certificate Principal Balance
of the Subordinate Certificates and (ii) after the Distribution Date occurring
in November 2007, cumulative Realized Losses on the Mortgage Loans as of the end
of the related Prepayment Period do not exceed 30% of the initial aggregate
Certificate Principal Balance of the Subordinate Certificates, then the Group
III Senior Prepayment Percentage for such Distribution Date will equal the Group
III Senior Percentage plus 50% of the Group III Subordinate Percentage for such
Distribution Date, if such Distribution Date is prior to November 2007, and
-22-
will equal the Group III Senior Percentage for such Distribution Date, if such
Distribution Date occurs on or after November 2007.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Group III Senior
Prepayment Percentage shall be 100%.
"Group III Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Group III Senior Percentage.
"Group III Subordinate Prepayment Percentage": With respect to
the Subordinate Certificates and any Distribution Date, 100% minus the Group III
Senior Prepayment Percentage for such Distribution Date.
"Group IV Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group IV Overcollateralized Amount and the denominator of which
is (y) the sum of the Group I Overcollateralized Amount, the Group II
Overcollateralized Amount, the Group III Overcollateralized Amount, the Group IV
Overcollateralized Amount, the Group V Overcollateralized Amount and the Group
VI Overcollateralized Amount.
"Group IV Available Distribution Amount": With respect to any
Distribution Date and the Group IV Mortgage Loans, an amount equal to the excess
of (i) the sum attributable to such Mortgage Loans of (a) the aggregate of the
Monthly Payments due on or before the Due Date relating to such Distribution
Date and received by the Master Servicer on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, proceeds from repurchases of and substitutions for Mortgage Loans,
Subsequent Recoveries and other unscheduled 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 amounts paid by the Master Servicer
in respect of related Prepayment Interest Shortfalls relating to Principal
Prepayments that occurred during the related Prepayment Period and (d) the
aggregate of any P&I Advances made by the Master Servicer for such Distribution
Date, over (ii) the sum attributable to or allocable to such Mortgage Loans of
(a) amounts reimbursable or payable to the Master Servicer, the Trustee or the
Trust Administrator 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)(e) above deposited in the
Collection Account or the Distribution Account in error and (c) the Servicing
Fee payable from the Collection Account pursuant to Section 3.11.
Notwithstanding the foregoing, the Group IV Available Distribution Amount for
any Distribution Date shall be increased (in the case of an Undercollateralized
Loan Group with respect to Loan Group IV) or decreased (in the case of an
Overcollateralized Loan Group with respect to Loan Group IV) by any applicable
Diverted Interest Amount or Class A Principal Adjustment Amount, in each case
for such Distribution Date.
"Group IV Excess Diverted Interest Reserve Deposit": An amount
withdrawn from the Excess Diverted Interest Reserve Account equal to the lesser
of (i) the amount on
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deposit in the Excess Diverted Interest Reserve Account and (ii) the sum of (a)
any interest shortfalls on the Class A-4 Certificates and (b) the aggregate
amount of Realized Losses on the Group IV Mortgage Loans on such Distribution
Date.
"Group IV Mortgage Loan": A first lien adjustable-rate
Mortgage Loan with a Mortgage Rate scheduled to adjust 49 to 60 months from the
Cut-off Date. The Group IV Mortgage Loans are identified as such on the Mortgage
Loan Schedule.
"Group IV Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate Scheduled Principal Balance of the
Group IV Mortgage Loans plus (b) the aggregate Scheduled Principal Balance of
the REO Properties in Loan Group IV over (ii) the aggregate Certificate
Principal Balance of the Class A-4 Certificates immediately prior to such
Distribution Date, in each case, before reduction for any Realized Losses on
such Distribution Date.
"Group IV Senior Percentage": With respect to any Distribution
Date and the Class A-4 Certificates, the lesser of (a) 100% and (b) a fraction,
expressed as a percentage, the numerator of which is the excess, if any, of the
aggregate Certificate Principal Balance of the Class A-4 Certificates for such
Distribution Date over the aggregate amount, if any, payable to the Holders of
the Class A-4 Certificates on such date pursuant to clause (d) of the definition
of "Senior Principal Distribution Amount," and the denominator of which is the
sum of (i) the aggregate Scheduled Principal Balance of the Group IV Mortgage
Loans, plus (ii) the aggregate Scheduled Principal Balance of the REO Properties
in Loan Group IV, in each case before reduction for any Realized Losses on such
Distribution Date.
Notwithstanding the foregoing, on any Cross-Collateralization
Date on which the aggregate of the Scheduled Principal Balance of the Group IV
Mortgage Loans exceeds the aggregate Certificate Principal Balance of the Class
A-4 Certificates, the Group IV Senior Percentage will equal the sum of the
aggregate Certificate Principal Balance of the Class A-4 Certificates
immediately prior to such Distribution Date plus the Group IV Allocation
Percentage of Overcollateralized Amount divided by the aggregate Scheduled
Principal Balance of the Group IV Mortgage Loans immediately prior to such
Distribution Date. On any Distribution Date after the reduction of the aggregate
Certificate Principal Balance of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-5 Certificates and Class A-6
Certificates to zero, the Group IV Senior Percentage will be a percentage equal
to the aggregate Certificate Principal Balance of the Class A-4 Certificates
immediately prior to such Distribution Date divided by the aggregate Scheduled
Principal Balance of all of the Mortgage Loans immediately prior to such
Distribution Date.
"Group IV Senior Prepayment Percentage": With respect to any
Distribution Date and the Class A-4 Certificates within the range indicated
below, the percentage as indicated below:
-24-
Distribution Date Group IV Senior Prepayment Percentage
November 2004 through October 2011 100%
November 2011 through October 2012 Group IV Senior Percentage, plus 70% of the Group IV
Subordinate Percentage
November 2012 through October 2013 Group IV Senior Percentage, plus 60% of the Group IV
Subordinate Percentage
November 2013 through October 2014 Group IV Senior Percentage, plus 40% of the Group IV
Subordinate Percentage
November 2014 through October 2015 Group IV Senior Percentage, plus 20% of the Group IV
Subordinate Percentage
November 2015 and thereafter Group IV Senior Percentage;
PROVIDED, HOWEVER, no reduction to the Group IV Senior Prepayment Percentage
described above shall be made as of any Distribution Date unless (i) the
outstanding principal balance of the Mortgage Loans delinquent 60 days or more
(including REO Properties, Mortgage Loans in foreclosure and Mortgage Loans for
which the related Mortgagor has filed for bankruptcy) averaged over the last six
months does not exceed 50% of the sum of the then current Certificate Principal
Balances of the Subordinate Certificates and (ii) Realized Losses on the
Mortgage Loans to date are less than the then applicable Trigger Amount.
On any Distribution Date on which Realized Losses on the
Mortgage Loans to date are greater than the then applicable Trigger Amount, the
Group IV Senior Prepayment Percentage will be the greater of (x) the Group IV
Senior Prepayment Percentage for such Distribution Date or (y) the Group IV
Senior Prepayment Percentage for the immediately preceding Distribution Date.
Notwithstanding the above, if on any Distribution Date (a) the
Subordinate Percentage, prior to giving effect to any distributions on such
Distribution Date, equals or exceeds two times the initial Subordinate
Percentage, (b) the provisions of clause (i) immediately above are met and (c)
(i) on or prior to the Distribution Date occurring in November 2007, cumulative
Realized Losses on the Mortgage Loans as of the end of the related Prepayment
Period do not exceed 20% of the initial aggregate Certificate Principal Balance
of the Subordinate Certificates and (ii) after the Distribution Date occurring
in November 2007, cumulative Realized Losses on the Mortgage Loans as of the end
of the related Prepayment Period do not exceed 30% of the initial aggregate
Certificate Principal Balance of the Subordinate Certificates, then the Group IV
Senior Prepayment Percentage for such Distribution Date will equal the Group IV
Senior Percentage plus 50% of the Group IV Subordinate Percentage for such
Distribution Date, if such Distribution Date is prior to November 2007, and will
equal the Group IV Senior Percentage for such Distribution Date, if such
Distribution Date occurs on or after November 2007.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Group IV Senior
Prepayment Percentage shall be 100%.
-25-
"Group IV Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Group IV Senior Percentage.
"Group IV Subordinate Prepayment Percentage": With respect to
the Subordinate Certificates and any Distribution Date, 100% minus the Group IV
Senior Prepayment Percentage for such Distribution Date.
"Group V Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group V Overcollateralized Amount and the denominator of which
is (y) the sum of the Group I Overcollateralized Amount, the Group II
Overcollateralized Amount, the Group III Overcollateralized Amount, the Group IV
Overcollateralized Amount, the Group V Overcollateralized Amount and the Group
VI Overcollateralized Amount
"Group V Available Distribution Amount": With respect to any
Distribution Date and the Group V Mortgage Loans, an amount equal to the excess
of (i) the sum attributable to such Mortgage Loans of (a) the aggregate of the
Monthly Payments due on or before the Due Date relating to such Distribution
Date and received by the Master Servicer on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, proceeds from repurchases of and substitutions for Mortgage Loans,
Subsequent Recoveries and other unscheduled 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 amounts paid by the Master Servicer
in respect of related Prepayment Interest Shortfalls relating to Principal
Prepayments that occurred during the related Prepayment Period and (d) the
aggregate of any P&I Advances made by the Master Servicer for such Distribution
Date, over (ii) the sum attributable to or allocable to such Mortgage Loans of
(a) amounts reimbursable or payable to the Master Servicer, the Trustee or the
Trust Administrator 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)(e) above deposited in the
Collection Account or the Distribution Account in error and (c) the Servicing
Fee payable from the Collection Account pursuant to Section 3.11.
Notwithstanding the foregoing, the Group V Available Distribution Amount for any
Distribution Date shall be increased (in the case of an Undercollateralized Loan
Group with respect to Loan Group V) or decreased (in the case of an
Overcollateralized Loan Group with respect to Loan Group V) by any applicable
Diverted Interest Amount or Class A Principal Adjustment Amount, in each case
for such Distribution Date.
"Group V Excess Diverted Interest Reserve Deposit": An amount
withdrawn from the Excess Diverted Interest Reserve Account equal to the lesser
of (i) the amount on deposit in the Excess Diverted Interest Reserve Account and
(ii) the sum of (a) any interest shortfalls on the Class A-5 Certificates and
(b) the aggregate amount of Realized Losses on the Group V Mortgage Loans on
such Distribution Date.
-26-
"Group V Mortgage Loan": A first lien adjustable-rate Mortgage
Loan with a Mortgage Rate scheduled to adjust 61 to 99 months from the Cut-off
Date. The Group V Mortgage Loans are identified as such on the Mortgage Loan
Schedule.
"Group V Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate Scheduled Principal Balance of the
Group V Mortgage Loans plus (b) the aggregate Scheduled Principal Balance of the
REO Properties in Loan Group V over (ii) the aggregate Certificate Principal
Balance of the Class A-5 Certificates immediately prior to such Distribution
Date, in each case, before reduction for any Realized Losses on such
Distribution Date.
"Group V Senior Percentage": With respect to any Distribution
Date and the Class A-5 Certificates, the lesser of (a) 100% and (b) a fraction,
expressed as a percentage, the numerator of which is the excess, if any, of the
aggregate Certificate Principal Balance of the Class A-5 Certificates for such
Distribution Date over the aggregate amount, if any, payable to the Holders of
the Class A-5 Certificates on such date pursuant to clause (d) of the definition
of "Senior Principal Distribution Amount," and the denominator of which is the
sum of (i) the aggregate Scheduled Principal Balance of the Group V Mortgage
Loans, plus (ii) the aggregate Scheduled Principal Balance of the REO Properties
in Loan Group V, in each case before reduction for any Realized Losses on such
Distribution Date.
Notwithstanding the foregoing, on any Cross-Collateralization
Date on which the aggregate of the Scheduled Principal Balance of the Group V
Mortgage Loans exceeds the aggregate Certificate Principal Balance of the Class
A-5 Certificates, the Group V Senior Percentage will equal the sum of the
aggregate Certificate Principal Balance of the Class A-5 Certificates
immediately prior to such Distribution Date plus the Group V Allocation
Percentage of Overcollateralized Amount divided by the aggregate Scheduled
Principal Balance of the Group V Mortgage Loans immediately prior to such
Distribution Date. On any Distribution Date after the reduction of the aggregate
Certificate Principal Balance of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates and Class A-6
Certificates to zero, the Group V Senior Percentage will be a percentage equal
to the aggregate Certificate Principal Balance of the Class A-5 Certificates
immediately prior to such Distribution Date divided by the aggregate Scheduled
Principal Balance of all of the Mortgage Loans immediately prior to such
Distribution Date.
"Group V Senior Prepayment Percentage": With respect to any
Distribution Date and the Class A-5 Certificates within the range indicated
below, the percentage as indicated below:
Distribution Date Group V Senior Prepayment Percentage
November 2004 through October 2011 100%
November 2011 through October 2012 Group V Senior Percentage, plus 70% of the Group V
Subordinate Percentage
-27-
November 2012 through October 2013 Group V Senior Percentage, plus 60% of the Group V
Subordinate Percentage
November 2013 through October 2014 Group V Senior Percentage, plus 40% of the Group V
Subordinate Percentage
November 2014 through October 2015 Group V Senior Percentage, plus 20% of the Group V
Subordinate Percentage
November 2015 and thereafter Group V Senior Percentage;
PROVIDED, HOWEVER, no reduction to the Group V Senior Prepayment Percentage
described above shall be made as of any Distribution Date unless (i) the
outstanding principal balance of the Mortgage Loans delinquent 60 days or more
(including REO Properties, Mortgage Loans in foreclosure and Mortgage Loans for
which the related Mortgagor has filed for bankruptcy) averaged over the last six
months does not exceed 50% of the sum of the then current Certificate Principal
Balances of the Subordinate Certificates and (ii) Realized Losses on the
Mortgage Loans to date are less than the then applicable Trigger Amount.
On any Distribution Date on which Realized Losses on the
Mortgage Loans to date are greater than the then applicable Trigger Amount, the
Group V Senior Prepayment Percentage will be the greater of (x) the Group V
Senior Prepayment Percentage for such Distribution Date or (y) the Group V
Senior Prepayment Percentage for the immediately preceding Distribution Date.
Notwithstanding the above, if on any Distribution Date (a) the
Subordinate Percentage, prior to giving effect to any distributions on such
Distribution Date, equals or exceeds two times the initial Subordinate
Percentage, (b) the provisions of clause (i) immediately above are met and (c)
(i) on or prior to the Distribution Date occurring in November 2007, cumulative
Realized Losses on the Mortgage Loans as of the end of the related Prepayment
Period do not exceed 20% of the initial aggregate Certificate Principal Balance
of the Subordinate Certificates and (ii) after the Distribution Date occurring
in November 2007, cumulative Realized Losses on the Mortgage Loans as of the end
of the related Prepayment Period do not exceed 30% of the initial aggregate
Certificate Principal Balance of the Subordinate Certificates, then the Group V
Senior Prepayment Percentage for such Distribution Date will equal the Group V
Senior Percentage plus 50% of the Group V Subordinate Percentage for such
Distribution Date, if such Distribution Date is prior to November 2007, and will
equal the Group V Senior Percentage for such Distribution Date, if such
Distribution Date occurs on or after November 2007.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Group V Senior
Prepayment Percentage shall be 100%.
"Group V Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Group V Senior Percentage.
-28-
"Group V Subordinate Prepayment Percentage": With respect to
the Subordinate Certificates and any Distribution Date, 100% minus the Group V
Senior Prepayment Percentage for such Distribution Date.
"Group VI Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group VI Overcollateralized Amount and the denominator of which
is (y) the sum of the Group I Overcollateralized Amount, the Group II
Overcollateralized Amount, the Group III Overcollateralized Amount, the Group IV
Overcollateralized Amount, the Group V Overcollateralized Amount and the Group
VI Overcollateralized Amount.
"Group VI Available Distribution Amount": With respect to any
Distribution Date and the Group VI Mortgage Loans, an amount equal to the excess
of (i) the sum attributable to such Mortgage Loans of (a) the aggregate of the
Monthly Payments due on or before the Due Date relating to such Distribution
Date and received by the Master Servicer on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, proceeds from repurchases of and substitutions for Mortgage Loans,
Subsequent Recoveries and other unscheduled 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 amounts paid by the Master Servicer
in respect of related Prepayment Interest Shortfalls relating to Principal
Prepayments that occurred during the related Prepayment Period and (d) the
aggregate of any P&I Advances made by the Master Servicer for such Distribution
Date, over (ii) the sum attributable to or allocable to such Mortgage Loans of
(a) amounts reimbursable or payable to the Master Servicer, the Trustee or the
Trust Administrator 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)(e) above deposited in the
Collection Account or the Distribution Account in error and (c) the Servicing
Fee payable from the Collection Account pursuant to Section 3.11.
Notwithstanding the foregoing, the Group VI Available Distribution Amount for
any Distribution Date shall be increased (in the case of an Undercollateralized
Loan Group with respect to Loan Group VI) or decreased (in the case of an
Overcollateralized Loan Group with respect to Loan Group VI) by any applicable
Diverted Interest Amount or Class A Principal Adjustment Amount, in each case
for such Distribution Date.
"Group VI Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class A-6
Certificates and (b) the aggregate amount of Realized Losses on the Group VI
Mortgage Loans on such Distribution Date.
"Group VI Mortgage Loan": A first lien adjustable-rate
Mortgage Loan with a Mortgage Rate scheduled to adjust 100 or more months from
the Cut-off Date. The Group VI Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
-29-
"Group VI Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate Scheduled Principal Balance of the
Group VI Mortgage Loans plus (b) the aggregate Scheduled Principal Balance of
the REO Properties in Loan Group VI over (ii) the aggregate Certificate
Principal Balance of the Class A-6 Certificates immediately prior to such
Distribution Date, in each case, before reduction for any Realized Losses on
such Distribution Date.
"Group VI Senior Percentage": With respect to any Distribution
Date and the Class A-6 Certificates, the lesser of (a) 100% and (b) a fraction,
expressed as a percentage, the numerator of which is the excess, if any, of the
aggregate Certificate Principal Balance of the Class A-6 Certificates for such
Distribution Date over the aggregate amount, if any, payable to the Holders of
the Class A-6 Certificates on such date pursuant to clause (d) of the definition
of "Senior Principal Distribution Amount," and the denominator of which is the
sum of (i) the aggregate Scheduled Principal Balance of the Group VI Mortgage
Loans, plus (ii) the aggregate Scheduled Principal Balance of the REO Properties
in Loan Group VI, in each case before reduction for any Realized Losses on such
Distribution Date.
Notwithstanding the foregoing, on any Cross-Collateralization
Date on which the aggregate of the Scheduled Principal Balance of the Group VI
Mortgage Loans exceeds the aggregate Certificate Principal Balance of the Class
A-6 Certificates, the Group VI Senior Percentage will equal the sum of the
aggregate Certificate Principal Balance of the Class A-6 Certificates
immediately prior to such Distribution Date plus the Group VI Allocation
Percentage of Overcollateralized Amount divided by the aggregate Scheduled
Principal Balance of the Group VI Mortgage Loans immediately prior to such
Distribution Date. On any Distribution Date after the reduction of the aggregate
Certificate Principal Balance of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates and Class A-5
Certificates to zero, the Group VI Senior Percentage will be a percentage equal
to the aggregate Certificate Principal Balance of the Class A-6 Certificates
immediately prior to such Distribution Date divided by the aggregate Scheduled
Principal Balance of all of the Mortgage Loans immediately prior to such
Distribution Date.
"Group VI Senior Prepayment Percentage": With respect to any
Distribution Date and the Class A-6 Certificates within the range indicated
below, the percentage as indicated below:
Distribution Date Group VI Senior Prepayment Percentage
November 2004 through October 2011 100%
November 2011 through October 2012 Group VI Senior Percentage, plus 70% of the Group VI
Subordinate Percentage
November 2012 through October 2013 Group VI Senior Percentage, plus 60% of the Group VI
Subordinate Percentage
November 2013 through October 2014 Group VI Senior Percentage, plus 40% of the Group VI
Subordinate Percentage
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November 2014 through October 2015 Group VI Senior Percentage, plus 20% of the Group VI
Subordinate Percentage
November 2015 and thereafter Group VI Senior Percentage;
PROVIDED, HOWEVER, no reduction to the Group VI Senior Prepayment Percentage
described above shall be made as of any Distribution Date unless (i) the
outstanding principal balance of the Mortgage Loans delinquent 60 days or more
(including REO Properties, Mortgage Loans in foreclosure and Mortgage Loans for
which the related Mortgagor has filed for bankruptcy) averaged over the last six
months does not exceed 50% of the sum of the then current Certificate Principal
Balances of the Subordinate Certificates and (ii) Realized Losses on the
Mortgage Loans to date are less than the then applicable Trigger Amount.
On any Distribution Date on which Realized Losses on the
Mortgage Loans to date are greater than the then applicable Trigger Amount, the
Group VI Senior Prepayment Percentage will be the greater of (x) the Group VI
Senior Prepayment Percentage for such Distribution Date or (y) the Group VI
Senior Prepayment Percentage for the immediately preceding Distribution Date.
Notwithstanding the above, if on any Distribution Date (a) the
Subordinate Percentage, prior to giving effect to any distributions on such
Distribution Date, equals or exceeds two times the initial Subordinate
Percentage, (b) the provisions of clause (i) immediately above are met and (c)
(i) on or prior to the Distribution Date occurring in November 2007, cumulative
Realized Losses on the Mortgage Loans as of the end of the related Prepayment
Period do not exceed 20% of the initial aggregate Certificate Principal Balance
of the Subordinate Certificates and (ii) after the Distribution Date occurring
in November 2007, cumulative Realized Losses on the Mortgage Loans as of the end
of the related Prepayment Period do not exceed 30% of the initial aggregate
Certificate Principal Balance of the Subordinate Certificates, then the Group VI
Senior Prepayment Percentage for such Distribution Date will equal the Group VI
Senior Percentage plus 50% of the Group VI Subordinate Percentage for such
Distribution Date, if such Distribution Date is prior to November 2007, and will
equal the Group VI Senior Percentage for such Distribution Date, if such
Distribution Date occurs on or after November 2007.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Group VI Senior
Prepayment Percentage shall be 100%.
"Group VI Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Group VI Senior Percentage.
"Group VI Subordinate Prepayment Percentage": With respect to
the Subordinate Certificates and any Distribution Date, 100% minus the Group VI
Senior Prepayment Percentage for such Distribution Date.
"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
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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
REMIC I within the meaning of Section 856(d)(3) of the Code if REMIC I 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 REMIC I does
not receive or derive any income from such Person and provided that the
relationship between such Person and REMIC I 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 Trustee and the Trust Administrator have
received an Opinion of Counsel 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.
"Index": With respect to any Mortgage Loan, the index for the
adjustment of the Mortgage Rate set forth as such on the related Mortgage Note.
"Insurance Proceeds": Proceeds of any 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 or, in the case of a Cooperative Loan, the Security Agreement.
"Interest Accrual Period": With respect to any Distribution
Date and any Class of Regular Certificates, the one-month period ending on the
last day of the calendar month preceding the month in which such Distribution
Date occurs.
"Interest Distribution Amount": With respect to any Class of
Regular Certificates for any Distribution Date, an amount equal to one month's
interest accrued during the most recently ended Interest Accrual Period at the
applicable Pass-Through Rate on the Certificate Principal Balance thereof
immediately prior to such Distribution Date. The Interest Distribution Amount
for any Class of Regular Certificates (a) will also include, in the case of any
Distribution Date subsequent to the initial Distribution Date, the excess, if
any, of the Interest Distribution Amount in respect of such Certificates for the
immediately preceding Distribution Date, over the
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aggregate distributions of interest made in respect of such Certificates
pursuant to Section 4.01(a)(1) on such immediately preceding Distribution Date
and (b) will be reduced, in the case of any Distribution Date, by the amount of
any Prepayment Interest Shortfalls (to the extent not covered by payments in
respect of Compensating Interest by the Master Servicer pursuant to Section
3.24) and Relief Act Interest Shortfalls that were allocated to such
Certificates on such Distribution Date pursuant to Section 1.02. The Interest
Distribution Amount for any Class of Certificates will be based on a 360 day
year consisting of twelve 30 day Interest Accrual Periods.
"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, or in the case of a Cooperative Loan,
the Security Agreement 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 REMIC I 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
purchase, 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 Group": Any of Loan Group I, Loan Group II, Loan Group
III, Loan Group IV, Loan Group V or Loan Group VI.
"Loan Group I": The Loan Group consisting of the Group I
Mortgage Loans. With respect to the Class A-1 Certificates, Loan Group I is
sometimes referred to herein as the related Loan Group and the Mortgage Loans in
such Loan Group are sometimes referred to herein as the related Mortgage Loans.
"Loan Group II": The Loan Group consisting of the Group II
Mortgage Loans. With respect to the Class A-2 Certificates, Loan Group II is
sometimes referred to herein as the related Loan Group and the Mortgage Loans in
such Loan Group are sometimes referred to herein as the related Mortgage Loans.
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"Loan Group III": The Loan Group consisting of the Group III
Mortgage Loans. With respect to the Class A-3 Certificates, Loan Group III is
sometimes referred to herein as the related Loan Group and the Mortgage Loans in
such Loan Group are sometimes referred to herein as the related Mortgage Loans.
"Loan Group IV": The Loan Group consisting of the Group IV
Mortgage Loans. With respect to the Class A-4 Certificates, Loan Group IV is
sometimes referred to herein as the related Loan Group and the Mortgage Loans in
such Loan Group are sometimes referred to herein as the related Mortgage Loans.
"Loan Group V": The Loan Group consisting of the Group V
Mortgage Loans. With respect to the Class A-5 Certificates, Loan Group V is
sometimes referred to herein as the related Loan Group and the Mortgage Loans in
such Loan Group are sometimes referred to herein as the related Mortgage Loans.
"Loan Group VI": The Loan Group consisting of the Group VI
Mortgage Loans. With respect to the Class A-6 Certificates, Loan Group VI is
sometimes referred to herein as the related Loan Group and the Mortgage Loans in
such Loan Group are sometimes referred to herein as the related Mortgage Loans.
"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.
"Master Servicer": UST Mortgage Company or any successor
master servicer appointed as herein provided, in its capacity as Master Servicer
hereunder.
"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 second Business Day preceding
the Distribution Date.
"Maximum Mortgage Rate": With respect to each Mortgage Loan,
the percentage set forth in the related Mortgage Note as the maximum Mortgage
Rate thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS(R) 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(R) System.
"Minimum Mortgage Rate": With respect to each Mortgage Loan,
the percentage set forth in the related Mortgage Note as the minimum Mortgage
Rate thereunder.
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"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.
"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 or any state law providing for similar relief; (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.
"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 or Cooperative 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.
"Mortgage Loan Purchase Agreement": The agreement among the
Depositor and the Sellers regarding the transfer of the Mortgage Loans by the
Sellers to or at the direction of the Depositor, substantially in the form of
Exhibit D annexed hereto.
"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) [reserved];
(iii) a code indicating whether the Mortgaged Property is
owner-occupied;
(iv) the type of Residential Dwelling constituting the
Mortgaged Property;
(v) the original months to maturity;
(vi) the original date of the mortgage;
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(vii) the Loan-to-Value Ratio;
(viii) the Mortgage Rate in effect immediately following the
Cut-off Date;
(ix) the date on which the first Monthly Payment was due on
the Mortgage Loan;
(x) the stated maturity date;
(xi) the amount of the Monthly Payment at origination;
(xii) the amount of the Monthly Payment as of the Cut-off
Date;
(xiii) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal Balance;
(xiv) the original principal amount of the Mortgage Loan;
(xv) the Scheduled Principal Balance of the Mortgage Loan as
of the close of business on the Cut-off Date;
(xvi) a code indicating the purpose of the Mortgage Loan
(i.e., purchase financing, Rate/Term Refinancing, Cash-Out
Refinancing);
(xvii) a code indicating the documentation style (i.e., full,
alternative or reduced);
(xviii) the Value of the Mortgaged Property;
(xix) the sale price of the Mortgaged Property, if applicable;
(xx) the actual unpaid principal balance of the Mortgage Loan
as of the Cut-off Date;
(xxi) the rounding code, the Minimum Mortgage Rate, the
Maximum Mortgage Rate, the Gross Margin, the next Adjustment Date and
the initial Periodic Rate Cap and the subsequent Periodic Rate Cap; and
(xxii) the Loan Group.
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
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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 consisting of Loan
Group I, Loan Group II, Loan Group III, Loan Group IV, Loan Group V and Loan
Group VI, 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 or Cooperative Assets.
"Mortgagor": The obligor on a Mortgage Note.
"Net 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 Servicing Fee Rate.
"Net WAC Pass-Through Rate": With respect to the Class A-1
Certificates and any Distribution Date, a rate per annum equal to the weighted
average of the Expense Adjusted Mortgage Rates of the Group I Mortgage Loans,
weighted based on their Stated 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 REMIC I Regular Interest LT-1GRP, weighted on the basis of the
Uncertificated Principal Balance of such REMIC I Regular Interest.
With respect to the Class A-2 Certificates and any
Distribution Date, a rate per annum equal to the weighted average of the Expense
Adjusted Mortgage Rates of the Group II Mortgage Loans, weighted based on their
Stated 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 REMIC I Regular
Interest LT-2GRP, weighted on the basis of the Uncertificated Principal Balance
of such REMIC I Regular Interest.
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With respect to the Class A-3 Certificates and any
Distribution Date, a rate per annum equal to the weighted average of the Expense
Adjusted Mortgage Rates of the Group III Mortgage Loans, weighted based on their
Stated 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 REMIC I Regular
Interest LT-3GRP, weighted on the basis of the Uncertificated Principal Balance
of such REMIC I Regular Interest.
With respect to the Class A-4 Certificates and any
Distribution Date, a rate per annum equal to the weighted average of the Expense
Adjusted Mortgage Rates of the Group IV Mortgage Loans, weighted based on their
Stated 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 REMIC I Regular
Interest LT-4GRP, weighted on the basis of the Uncertificated Principal Balance
of such REMIC I Regular Interest.
With respect to the Class A-5 Certificates and any
Distribution Date, a rate per annum equal to the weighted average of the Expense
Adjusted Mortgage Rates of the Group V Mortgage Loans, weighted based on their
Stated 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 REMIC I Regular
Interest LT-5GRP, weighted on the basis of the Uncertificated Principal Balance
of such REMIC I Regular Interest.
With respect to the Class A-6 Certificates and any
Distribution Date, a rate per annum equal to the weighted average of the Expense
Adjusted Mortgage Rates of the Group VI Mortgage Loans, weighted based on their
Stated 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 REMIC I Regular
Interest LT-6GRP, weighted on the basis of the Uncertificated Principal Balance
of such REMIC I Regular Interest.
With respect to the Subordinate Certificates and any
Distribution Date, a rate per annum equal to the weighted average, weighted in
proportion to the results of subtracting from the aggregate Stated Principal
Balance of each Loan Group the aggregate Certificate Principal Balance of the
related Class A Certificates, of the weighted average Expense Adjusted Mortgage
Rates of the Group I Mortgage Loans, Group II Mortgage Loans, Group III Mortgage
Loans, Group IV Mortgage Loans, Group V Mortgage Loans and Group VI Mortgage
Loans. For federal income tax purposes, the equivalent of the foregoing shall be
expressed as the weighted average of the REMIC I Remittance Rate on REMIC I
Regular Interest LT-1SUB, REMIC I Regular Interest LT-2SUB, REMIC I Regular
Interest LT-3SUB, REMIC I Regular Interest LT-4SUB, REMIC I Regular Interest
LT-5SUB and REMIC I Regular Interest LT-6SUB (in each case, subject to a cap and
a floor equal to the weighted average of the Expense Adjusted Mortgage Rates of
the Mortgage Loans in the related Loan Group), weighted on the basis of the
Uncertificated Principal Balance of each such REMIC I Regular Interest.
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"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 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.
"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 the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of each 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.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor or the Master
Servicer, acceptable to the Trustee, if such opinion is delivered to the
Trustee, or 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.
"Original Group I Mortgage Loan": Any Mortgage Loans included
in Loan Group I as of the Closing Date.
"Original Group II Mortgage Loan": Any Mortgage Loans included
in Loan Group II as of the Closing Date.
"Original Group III Mortgage Loan": Any Mortgage Loans
included in Loan Group III as of the Closing Date.
"Original Group IV Mortgage Loan": Any Mortgage Loans included
in Loan Group IV as of the Closing Date.
"Original Group V Mortgage Loan": Any Mortgage Loans included
in Loan Group V as of the Closing Date.
"Original Group VI Mortgage Loan": Any Mortgage Loans included
in Loan Group VI as of the Closing Date.
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"Original Mortgage Loan": Any Original Group I Mortgage Loan,
Original Group II Mortgage Loan, Original Group III Mortgage Loan, Original
Group IV Mortgage Loan, Original Group V Mortgage Loan or Original Group VI
Mortgage Loan.
"OTS": The Office of Thrift Supervision.
"Overcollateralized Amount": As to any Distribution Date, an
amount equal to the sum of the Undercollateralized Amounts for the unrelated
Class or Classes of Class A Certificates.
"Overcollateralized Loan Group": As to any Distribution Date
on which there is one or more Undercollateralized Loan Groups, any Loan Group
for which there is no Undercollateralized Amount.
"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 any Class of the
Certificates and any Distribution Date, the related Net WAC Pass-Through Rate.
"Percentage Interest": With respect to any Class of
Certificates and any Certificate of such Class, the portion of the respective
Class evidenced by such Certificate, expressed as a percentage, the numerator of
which is the initial Certificate Principal Balance represented by such
Certificate, and the denominator of which is the initial aggregate Certificate
Principal Balance of all of the Certificates of such Class. The Book-Entry
Certificates are issuable only in Percentage Interests corresponding to initial
Certificate Principal Balances of $100,000 and integral multiples of $1 in
excess thereof. The Private Certificates are issuable only in Percentage
Interests corresponding to the initial Certificate Principal Balances of
$100,000 and integral multiples of $1 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 of such Class or to an otherwise authorized
denomination for such Class plus such remainder. The Residual Certificates are
issuable only in Percentage Interests of 20% and multiples thereof.
"Periodic Rate Cap": With respect to each Mortgage Loan and
any Adjustment Date therefor, the fixed percentage set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage Rate for such
Mortgage Loan may increase or decrease (without regard to the Maximum Mortgage
Rate or the Minimum Mortgage Rate) on such Adjustment Date from the Mortgage
Rate in effect immediately prior to such Adjustment Date.
"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 Trust Administrator or any of their respective Affiliates:
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(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 each
Rating Agency in its highest long-term unsecured 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 each Rating Agency 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 Trust Administrator or an Affiliate thereof, that have
been rated "AAA" by S&P and "AAA" by Fitch; and
(vii) if previously confirmed in writing to 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 each Rating Agency as a permitted investment of funds
backing securities having ratings equivalent to its highest initial
rating of the Class A 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.
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"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": With respect to any Distribution Date, as to
any Mortgage Loan or REO Property, any advance made by the Master Servicer in
respect of Monthly Payments due during the related Due Period pursuant to
Section 4.03.
"Plan": Any employee benefit plan or certain other retirement
plans and arrangements, including individual retirement accounts and annuities,
▇▇▇▇▇ 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 and Section 4975 of the Code.
"Prepayment Assumption": A prepayment rate for the Mortgage
Loans of 300% prepayment speed assumption. The Prepayment Assumption is used
solely for determining the accrual of original issue discount on the
Certificates for federal income tax purposes.
"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 one month's interest on the Mortgage Loan less any payments in respect
of interest for such month made by the Mortgagor. 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.
"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": As defined in Section 5.02(b).
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as contemplated by Section 2.03, Section
3.01, 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 Net Mortgage 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 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
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REO Property, the sum of (1) accrued interest on such Stated Principal Balance
at the applicable Net Mortgage 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 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 reasonably incurred or to be
incurred by the Master Servicer or the Trustee or the Trust Administrator 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 ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ 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) have a remaining term to maturity not
greater than (and not more than one year less than) that of the Deleted Mortgage
Loan, (iv) have the same Due Date as the Due Date on the Deleted Mortgage Loan,
(v) 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, (vi)
have a Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the
Deleted Mortgage Loan, (vii) have a Minimum Mortgage Rate not less than the
Minimum Mortgage Rate of the Deleted Mortgage Loan, (viii) have a Gross Margin
equal to the Gross Margin of the Deleted Mortgage Loan, (ix) have a next
Adjustment Date not more than two months later than the next Adjustment Date on
the Deleted Mortgage Loan and (x) 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
(iii) shall be determined on the basis of weighted average remaining terms to
maturity, the Loan-to-Value Ratios described in clause (v) hereof shall be
satisfied as to each such mortgage loan and, except to the extent otherwise
provided in this sentence, the representations and warranties
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described in clause (x) hereof must be satisfied as to each Qualified Substitute
Mortgage Loan or in the aggregate, as the case may be.
"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 Agency": S&P and Fitch or their successors. If such
agencies or their successors are no longer in existence, the "Rating Agency"
shall be such nationally recognized statistical rating agency, or other
comparable Person, designated by the Depositor, written notice of which
designation shall be given to the Trustee, the Trust Administrator and the
Master Servicer. References herein to "the Rating Agency" shall be deemed to
refer to both Rating Agencies, as the context may require.
"Realized Loss": With respect to each Mortgage Loan or REO
Property as to which a Final Recovery Determination has been made, (a) a
Bankruptcy Loss, Fraud Loss or Special Hazard Loss or (b) with respect to any
defaulted Mortgage Loan that is finally liquidated through foreclosure sale,
disposition of the related Mortgaged Property (if acquired on behalf of the
Certificateholders by foreclosure or deed in lieu of foreclosure) or otherwise,
is the amount of loss realized, if any, equal to the portion of the Stated
Principal Balance remaining unpaid, plus interest thereon through the last day
of the month in which such Mortgage Loan was finally liquidated, after
application of all Liquidation Proceeds (net of amounts reimbursable therefrom
to the Master Servicer for P&I Advances, Servicing Advances and other related
expenses, including attorney's fees) in respect of such Mortgage Loan.
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.
To the extent the Trust Fund receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced to the extent such recoveries are applied
to reduce the Certificate Principal Balance of any Class of Certificates on any
Distribution Date.
"Record Date": With respect to each Distribution Date and each
Class of Certificate, the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
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"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 or Subordinate
Certificate.
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the Code.
"Relief Act": The Servicemembers Civil Relief Act, 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 or any state law providing for
similar relief.
"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 as from time to time are subject to this Agreement, together with
the Mortgage Files relating 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 interests created
thereby but excluding any indemnification rights pursuant to Section 17
thereof); and (v) the Collection Account, the Distribution Account 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.
"REMIC I Regular Interests": The REMIC I Regular Interests, as
defined in the Preliminary Statement.
"REMIC I Remittance Rate": With respect to REMIC I Regular
Interest LT-1SUB, REMIC I Regular Interest LT-2SUB, REMIC I Regular Interest
LT-3SUB, REMIC I Regular Interest LT-4SUB, REMIC I Regular Interest LT-5SUB,
REMIC I Regular Interest LT-6SUB and REMIC I Regular Interest LT-ZZ, the
weighted average of the Expense Adjusted Mortgage Rates of the Mortgage Loans.
With respect to REMIC I Regular Interest LT-1GRP, the weighted average of the
Expense Adjusted Mortgage Rates of the Group I Mortgage Loans. With respect to
REMIC I Regular Interest LT-2GRP, the weighted average of the Expense Adjusted
Mortgage Rates of the Group II Mortgage Loans. With respect to REMIC I Regular
Interest LT-3GRP, the weighted average of the Expense Adjusted Mortgage Rates of
the Group III Mortgage Loans. With respect to REMIC I Regular Interest LT-4GRP,
the weighted average of the
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Expense Adjusted Mortgage Rates of the Group IV Mortgage Loans. With respect to
REMIC I Regular Interest LT-5GRP, the weighted average of the Expense Adjusted
Mortgage Rates of the Group V Mortgage Loans. With respect to REMIC I Regular
Interest LT-6GRP, the weighted average of the Expense Adjusted Mortgage Rates of
the Group VI Mortgage Loans.
"REMIC I Subordinated Balance Ratio": The ratio among the
Uncertificated Balances of each of the REMIC I Regular Interests ending with the
designation "SUB," equal to the ratio between, with respect to each such REMIC I
Regular Interest, the excess of (x) the aggregate Scheduled Principal Balance of
the Mortgage Loans in the related Loan Group over (y) the aggregate current
Certificate Principal Balance of the Class A Certificates in the related Loan
Group.
"REMIC II": As defined in the Preliminary Statement.
"REMIC II Certificate": Any Regular Certificate or Class R
Certificate.
"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.
"Remittance Report": A report in form and substance acceptable
to the Trust Administrator prepared by the Master Servicer pursuant to Section
4.03 with such additions, deletions and modifications as agreed to by 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 Net Mortgage 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.
"REO Principal Amortization": With respect to any REO
Property, for any calendar month, the excess, if any, of (a) the aggregate of
all amounts received in respect of such REO Property during such calendar month,
whether in the form of rental income, sale proceeds (including, without
limitation, that portion of the Termination Price paid in connection with a
purchase of all of the Mortgage Loans and REO Properties pursuant to Section
9.01 that is
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allocable to such REO Property) or otherwise, net of any portion of such amounts
(i) payable pursuant to Section 3.23(c) in respect of the proper operation,
management and maintenance of such REO Property or (ii) payable or reimbursable
to the Master Servicer pursuant to Section 3.23(d) for unpaid Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing Advances and P&I
Advances in respect of such REO Property or the related Mortgage Loan, over (b)
the REO Imputed Interest in respect of such REO Property for such calendar
month.
"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-1 or Exhibit E-2 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 ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Section 5402(6)).
"Residual Certificate": Any one of 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 Trustee
or the Trust Administrator, 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 of the Trustee or
the Trust Administrator, as the case may be, customarily performing functions
similar to those performed by any of the above designated officers and, with
respect to a particular matter, 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
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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 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 aggregate amount of REO
Principal Amortization, if any, in respect of such REO Property for all
previously ended calendar months; and (b) as of any Due Date subsequent to the
occurrence of a Liquidation Event with respect to such REO Property, zero.
"Security Agreement": With respect to a Cooperative Loan, the
agreement creating a security interest in favor of the originator in the related
Cooperative Assets.
"Sellers": UST Mortgage Company and Co-Op Holdings, Inc., or
their successors in interest, in their capacities as sellers under the Mortgage
Loan Purchase Agreement.
"Senior Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the aggregate of the Interest Distribution
Amounts for such Distribution Date for each Class of Class A Certificates.
"Senior Percentage": The Group I Senior Percentage, the Group
II Senior Percentage, the Group III Senior Percentage, the Group IV Senior
Percentage, the Group V Senior Percentage or the Group VI Senior Percentage, as
the context requires.
"Senior Prepayment Percentage": The Group I Senior Prepayment
Percentage, the Group II Senior Prepayment Percentage, the Group III Senior
Prepayment Percentage, the Group IV Senior Prepayment Percentage, the Group V
Senior Prepayment Percentage or the Group VI Senior Prepayment Percentage, as
the context requires.
"Senior Principal Distribution Amount": For any Distribution
Date and any Class of Class A Certificates, an amount equal to the sum of:
(a) the product of (x) the then-applicable related Senior
Percentage and (y) the sum of the following:
(i) the aggregate of the principal portions of all Monthly
Payments due during the related Due Period in respect of the related
Mortgage Loans whether or not received;
(ii) the principal portion of all Insurance Proceeds,
Liquidation Proceeds (other than amounts described in clause (c) below)
and Subsequent Recoveries received in respect of the related Mortgage
Loans during the related Prepayment Period (other
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than any such related Mortgage Loan that was purchased, sold or
replaced pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 9.01 during the related Prepayment Period), net of
any portion thereof that represents a recovery of principal for which a
P&I Advance was made by the Master Servicer pursuant to Section 4.03 in
respect of a preceding Distribution Date;
(iii) the Stated Principal Balance (calculated immediately
prior to such Distribution Date) of each related Mortgage Loan that was
purchased, sold or replaced pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 9.01 during the related Prepayment
Period;
(iv) all REO Principal Amortization collected in respect of
any REO Property in respect of a related Mortgage Loan during the
related Prepayment Period; and
(v) in connection with the substitution of one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage
Loans in the related Loan Group pursuant to Section 2.03 during the
related Prepayment Period, the excess, if any, of (A) the aggregate
Stated Principal Balance (calculated as of the respective dates of
substitution) of such Deleted Mortgage Loans, net of the aggregate of
the principal portions of the Monthly Payments due during the related
Prepayment Period (to the extent received from the related Mortgagor or
advanced by the Master Servicer and distributed pursuant to Section
4.01 on the Distribution Date in the related Prepayment Period) in
respect of each such Deleted Mortgage Loan that was replaced prior to
the Distribution Date in the related Prepayment Period, over (B) the
aggregate Stated Principal Balance (calculated as of the respective
dates of substitution) of such Qualified Substitute Mortgage Loans;
(b) the product of (x) the then-applicable related Senior
Prepayment Percentage and (y) the aggregate of all Principal Prepayments
received in respect of the related Mortgage Loans during the related Prepayment
Period;
(c) with respect to any related Mortgage Loan which was the
subject of a Final Recovery Determination in the related Prepayment Period, the
least of (a) the then-applicable related Senior Prepayment Percentage multiplied
by the net Liquidation Proceeds and Insurance Proceeds allocable to principal in
respect of the related Mortgage Loans, (b) the then-applicable related Senior
Percentage multiplied by the Scheduled Principal Balance of the related Mortgage
Loan at the time of such Final Recovery Determination and (c) the principal
portion of all amounts collected in connection with such a Final Recovery
Determination;
(d) in the case of any Distribution Date subsequent to the
initial Distribution Date, an amount equal to the excess, if any, of the related
Senior Principal Distribution Amount for the immediately preceding Distribution
Date, over the aggregate distributions of principal made in respect of the
related Class of Class A Certificates on such immediately preceding Distribution
Date pursuant to Section 4.01 to the extent that any such amounts are not
attributable to Realized Losses which were allocated to the Subordinate
Certificates pursuant to Section 4.04; and
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(e) any Class A Principal Adjustment Amount (allocated among
the Class A Certificates on a PRO RATA basis based on the aggregate Certificate
Principal Balance of each such Class), so long as (a) the Subordination Test has
not been met with respect to such Distribution Date and (b) there is more than
one Class of Class A Certificates still outstanding.
The Senior Principal Distribution Amount shall only consist of
scheduled principal whether or not received and unscheduled principal collected
on the Mortgage Loans.
On any Distribution Date on which only one Class of Class A
Certificates remains outstanding, such Class of Class A Certificates will be
entitled to receive distributions in respect of all principal collected on any
of the remaining Mortgage Loans.
"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, (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 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 applicable 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": 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
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for such Class corresponding to an initial Certificate Principal Balance of
$1,000. With respect to the Residual Certificates, a hypothetical Certificate of
such Class evidencing a 20% Percentage Interest in such Class.
"Special Hazard Amount": Initially, an amount equal to
$10,513,330. As of each anniversary of the Cut-off Date, the Special Hazard
Amount shall equal the lesser of (i) the Special Hazard Amount on the
immediately preceding anniversary of the Cut-off Date less the sum of all
amounts allocated to the Subordinate Certificates in respect of Special Hazard
Losses on the Mortgage Loans during such year and (ii) the Adjustment Amount for
such anniversary. After the Certificate Principal Balances of the Subordinate
Certificates are reduced to zero, the Special Hazard Amount will be zero.
"Special Hazard Loss": Any Realized Loss or portion thereof
not in excess of the lesser of the cost of repair or replacement of a Mortgaged
Property suffered by such Mortgaged Property by reason of damage caused by
certain hazards (including earthquakes, mudflows, and, to a limited extent,
floods) not insured against under the hazard insurance policies or fire or flood
insurance policies required to be maintained in respect of such Mortgaged
Property pursuant to Section 3.14, or by reason of the application of any
co-insurance provision. Special Hazard Losses shall not include any
Extraordinary Loss or any of the following:
(i) wear and tear, deterioration, rust or corrosion, mold, wet
or dry rot; inherent vice or latent defect; animals, birds, vermin,
insects;
(ii) smog, smoke, vapor, liquid or dust discharge from
agricultural or industrial operations; pollution; contamination;
(iii) settling, subsidence, cracking, shrinkage, bulging or
expansion of pavements, foundations, walls, floors, roofs or ceilings;
and
(iv) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and then
only for the ensuing loss.
"S&P": Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ 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
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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 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 sum of (I) if such REO
Property was acquired before the Distribution Date in any calendar month, the
principal portion of the Monthly Payment due on the Due Date in the calendar
month of acquisition, to the extent advanced by the Master Servicer and
distributed pursuant to Section 4.01 on or before such date of determination, to
the extent distributed pursuant to Section 4.01 on or before such date of
determination, and (II) the aggregate amount of REO Principal Amortization in
respect of such REO Property for all previously ended calendar months, to the
extent 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 a Remittance (as
defined in Section 7.02(b)) 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.
"Subordinate Certificate": Any Class B-1 Certificate, Class
B-2 Certificate, Class B-3 Certificate, Class B-4 Certificate, Class B-5
Certificate or Class B-6 Certificate.
"Subordinate Percentage": The Subordinate Percentage with
respect to any distribution date will be the percentage equal to the aggregate
Certificate Principal Balance of the Subordinate Certificates immediately prior
to such Distribution Date divided by the aggregate Scheduled Principal Balance
of all of the Mortgage Loans as of the close of business on the first day of the
calendar month immediately preceding such Distribution Date.
"Subordinate Principal Distribution Amount": For any
Distribution Date, an amount equal to the sum of:
(a) the product of (x) the then-applicable Group I Subordinate
Percentage, Group II Subordinate Percentage, the Group III Subordinate
Percentage, the Group IV Subordinate Percentage, the Group V Subordinate
Percentage or the Group VI Subordinate Percentage, as applicable, and (y) the
sum of the following:
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(i) the aggregate of the principal portions of all Monthly
Payments due during the related Due Period in respect of the Mortgage
Loans whether or not received;
(ii) the principal portion of all Insurance Proceeds and
Liquidation Proceeds (other than amounts described in clause (c) below)
received in respect of the related Mortgage Loans during the related
Prepayment Period (other than any such Mortgage Loan that was
purchased, sold or replaced pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 9.01 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;
(iii) the Stated Principal Balance (calculated immediately
prior to such Distribution Date) of each related Mortgage Loan that was
purchased, sold or replaced pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 9.01 during the related Prepayment
Period;
(iv) all REO Principal Amortization collected in respect of
any REO Property during the related Prepayment Period; and
(v) in connection with the substitution of one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage
Loans in the related Loan Group pursuant to Section 2.03 during the
related Prepayment Period, the excess, if any, of (A) the aggregate
Stated Principal Balance (calculated as of the respective dates of
substitution) of such Deleted Mortgage Loans, net of the aggregate of
the principal portions of the Monthly Payments due during the related
Prepayment Period (to the extent received from the related Mortgagor or
advanced by the Master Servicer and distributed pursuant to Section
4.01 on the Distribution Date in the related Prepayment Period) in
respect of each such Deleted Mortgage Loan that was replaced prior to
the Distribution Date in the related Prepayment Period, over (B) the
aggregate Stated Principal Balance (calculated as of the respective
dates of substitution) of such Qualified Substitute Mortgage Loans;
(b) the product of (x) the then-applicable Group I Subordinate
Prepayment Percentage, Group II Subordinate Prepayment Percentage, Group III
Subordinate Prepayment Percentage, Group IV Subordinate Prepayment Percentage,
Group V Subordinate Prepayment Percentage or Group VI Subordinate Prepayment
Percentage, as applicable, and (y) all Principal Prepayments received in respect
of the related Mortgage Loans during the related Prepayment Period;
(c) with respect to any related Mortgage Loans which were the
subject of a Final Recovery Determination in the related Prepayment Period, the
amount, if any, by which the net Liquidation Proceeds and Insurance Proceeds
allocable to principal in respect of such Mortgage Loans exceed the amount
distributable to the related Class A Certificates pursuant to clause (c) of the
definition of "Senior Principal Distribution Amount";
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(d) in the case of any Distribution Date subsequent to the
initial Distribution Date, an amount equal to the excess, if any, of the
Subordinate Principal Distribution Amount for the immediately preceding
Distribution Date, over the aggregate distributions of principal made in respect
of the Subordinate Certificates on such immediately preceding Distribution Date
pursuant to Section 4.01 to the extent that any such amounts are not
attributable to Realized Losses that were allocated to the Subordinate
Certificates pursuant to Section 4.04; and
(e) any Class A Principal Adjustment Amount, so long as (a)
the Subordination Test has been met with respect to such Distribution Date and
(b) there is more than one Class of Class A Certificates still outstanding.
"Subordination Test": With respect to any Distribution Date,
the Subordination Test will be met if (i) the Subordinate Percentage is equal to
or greater than two times the Subordinate Percentage on the Closing Date and
(ii) the aggregate Scheduled Principal Balance of the Mortgage Loans delinquent
60 days or more (including for this purpose any such Mortgage Loans in
foreclosure, with respect to which the related Mortgaged Property has been
acquired by the Trust Fund or for which the related Mortgagor has filed for
bankruptcy), averaged over the last six months, as a percentage of the aggregate
Certificate Principal Balance of the Subordinated Certificates does not exceed
50%.
"Sub-Servicer": Any Person 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.
"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": 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.
"Subsequent Recoveries": As of any Distribution Date, amounts
received by the Trust Fund (net of any related expenses permitted to be
reimbursed to the Master Servicer from such amounts 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.
"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.
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"Termination Price": As defined in Section 9.01.
"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 Amount": With respect to any Class of Class A
Certificates and any Distribution Date, the Trigger Amount occurring after the
first seven years will be as follows: for any Distribution Date during the
eighth year after the Closing Date, 30% of the initial aggregate Certificate
Principal Balance of the Subordinate Certificates; for any Distribution Date
during the ninth year after the Closing Date, 35% of the initial aggregate
Certificate Principal Balance of the Subordinate Certificates; for any
Distribution Date during the tenth year after the Closing Date, 40% of the
initial aggregate Certificate Principal Balance of the Subordinate Certificates;
for any Distribution Date during the eleventh year after the Closing Date, 45%
of the initial aggregate Certificate Principal Balance of the Subordinate
Certificates; and for any Distribution Date during the twelfth year (or any year
thereafter) after the Closing Date, 50% of the initial aggregate Certificate
Principal Balance of the Subordinate Certificates.
"Trust Administrator": Citibank, N.A., or its successor in
interest, or any successor trust administrator appointed as herein provided.
"Trust Fund": Collectively, all of the assets of REMIC I and
REMIC II.
"Trust REMIC": Each 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 I Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Balance of each REMIC I 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 I Regular Interest shall be reduced by all distributions of principal
made on such REMIC I Regular Interest, as applicable, on such Distribution Date
pursuant to Section 4.08 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.
"Undercollateralized Amount": As to any Distribution Date and
Loan Group I, the excess, if any, of the aggregate Certificate Principal Balance
of the Class A-1 Certificates immediately prior to such Distribution Date over
the sum of (i) the aggregate Scheduled Principal Balance of the Group I Mortgage
Loans plus (ii) the aggregate Scheduled Principal Balance of the REO Properties
in Loan Group I, in each case before reduction for any Realized
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Losses on such Distribution Date. As to any Distribution Date and Loan Group II,
the excess, if any, of the aggregate Certificate Principal Balance of the Class
A-2 Certificates immediately prior to such Distribution Date over the sum of (i)
the aggregate Scheduled Principal Balance of the Group II Mortgage Loans plus
(ii) the aggregate Scheduled Principal Balance of the REO Properties in Loan
Group II, in each case before reduction for any Realized Losses on such
Distribution Date. As to any Distribution Date and Loan Group III, the excess,
if any, of the aggregate Certificate Principal Balance of the Class A-3
Certificates immediately prior to such Distribution Date over the sum of (i) the
aggregate of the Scheduled Principal Balance of the Group III Mortgage Loans
plus (ii) the aggregate Scheduled Principal Balance of the REO Properties in
Loan Group III, in each case before reduction for any Realized Losses on such
Distribution Date. As to any Distribution Date and Loan Group IV, the excess, if
any, of the aggregate Certificate Principal Balance of the Class A-4
Certificates immediately prior to such Distribution Date over the sum of (i) the
aggregate of the Scheduled Principal Balance of the Group IV Mortgage Loans plus
(ii) the aggregate Scheduled Principal Balance of the REO Properties in Loan
Group IV, in each case before reduction for any Realized Losses on such
Distribution Date. As to any Distribution Date and Loan Group V, the excess, if
any, of the aggregate Certificate Principal Balance of the Class A-5
Certificates immediately prior to such Distribution Date over the sum of (i) the
aggregate of the Scheduled Principal Balance of the Group V Mortgage Loans plus
(ii) the aggregate Scheduled Principal Balance of the REO Properties in Loan
Group V, in each case before reduction for any Realized Losses on such
Distribution Date. As to any Distribution Date and Loan Group VI, the excess, if
any, of the aggregate Certificate Principal Balance of the Class A-6
Certificates immediately prior to such Distribution Date over the sum of (i) the
aggregate of the Scheduled Principal Balance of the Group VI Mortgage Loans plus
(ii) the aggregate Scheduled Principal Balance of the REO Properties in Loan
Group VI, in each case before reduction for any Realized Losses on such
Distribution Date.
"Undercollateralized Loan Group": As to any Distribution Date,
any Loan Group for which an Undercollateralized Amount greater than zero is
calculated.
"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 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
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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 or modification, as applicable, 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.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, (i) 99% of all of the Voting Rights shall be allocated
to the Regular Certificates in proportion to their then outstanding Certificate
Principal Balances; and (ii) 1% of all Voting Rights will be allocated among the
holders of the Residual Certificates, in proportion to their Percentage
Interests in each such Class. All Voting Rights allocated to any Class of
Certificates shall be allocated among such Certificates PRO RATA in accordance
with the respective Percentage Interests evidenced thereby.
SECTION 1.02 Allocation of Certain Interest Shortfalls
The aggregate amount of any Prepayment Interest Shortfalls (to
the extent not covered by payments of Compensating Interest payable 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 the Certificates on a PRO RATA basis in accordance with, and to
the extent of, one month's interest at the Pass-Through Rate on the respective
Certificate Principal Balance of such Certificate immediately prior to such
Distribution Date.
The aggregate amount of any Prepayment Interest Shortfalls (to
the extent not covered by Compensating Interest payments by the Master Servicer)
and any Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans
for any Distribution Date shall be allocated to the REMIC I Regular Interests on
a PRO RATA basis based on, and to the extent of, one month's interest at the
then applicable respective REMIC I Remittance Rate on the respective
Uncertificated Balance of each such REMIC I Regular Interest.
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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 17 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.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, the Trustee, the following documents
or instruments (a "Mortgage File") (I) with respect to each Mortgage Loan so
transferred and assigned (other than a Mortgage Loan that is a Cooperative
Loan):
(i) The Mortgage Note, endorsed by manual or facsimile
signature without recourse by the Sellers or an Affiliate of the
Sellers 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 Sellers and from such Affiliate to the
Trustee;
(ii) (A) The original Mortgage, noting the MIN of the related
Mortgage Loan and indicating whether such Mortgage Loan is a MOM Loan,
with evidence of recording thereon, or if the Mortgage Loan is not
registered on the MERS(R) System, the original recorded Mortgage or a
copy of the Mortgage certified by the public recording office in those
jurisdictions where the public recording office retains the original,
and (B) if the Mortgage was executed pursuant to a power of attorney,
the original recorded power of attorney or a copy of the power of
attorney certified by the public recording office in those
jurisdictions where the public recording office retains the original,
with evidence of recording thereon;
(iii) An assignment from the Sellers or an Affiliate of the
Sellers to the Trustee (or to MERS, if the Mortgage Loan is registered
on the MERS(R) System, noting the applicable MIN), 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 (or
to MERS, if applicable), including any intervening assignments and
showing a complete chain of title from the original mortgagee named
under the Mortgage to the Sellers or an Affiliate of the Sellers and
then to the Trustee (or to MERS, if applicable);
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(iv) Any original assumption, modification or buydown
agreement applicable to the Mortgage Loan; and
(v) 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 or a copy to be delivered within 270 days of the Closing
Date or an attorney's opinion of title in jurisdictions where such is
the customary evidence of title.
and (II) with respect to each Mortgage Loan that is a Cooperative Loan so
transferred and assigned:
(i) The Mortgage Note, endorsed by manual or facsimile
signature without recourse by the Sellers or an Affiliate of the
Sellers in blank or to the Trustee showing a complete chain of
endorsements and assignments from the named payee to the Trustee or
from the named payee to the Affiliate of the Sellers and from such
Affiliate to the Trustee;
(ii) The original executed proprietary lease or occupancy
agreement and all assignments thereof showing a complete chain of
assignment from the named secured party to the Trustee;
(iii) The original stocks, shares, membership certificate or
other contractual agreement evidencing ownership and the original stock
power executed in blank;
(iv) The original executed recognition agreement and any
executed assignments of recognition agreement showing a complete chain
of assignment from the named secured party to the Trustee;
(v) The original executed security agreement or similar
document and all assignments thereof showing a complete chain of
assignment from the named secured party to the Trustee;
(vi) Except for Mortgage Loans (x) secured by Mortgaged
Properties in the State of New Jersey or (y) originated prior to
October 1988 and secured by Mortgaged Properties in the State of New
York, the executed UCC-1 financing statement with evidence of recording
thereon and executed original UCC-3 financing statements or other
appropriate UCC financing statements required by state law, evidencing
a complete and unbroken chain from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for recordation);
and
(vii) Any original assumption, modification or buydown
agreement applicable to the Mortgage Loan.
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In instances where a Mortgage Loan is not registered on the
MERS(R) System and 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 or power of attorney, the
Depositor may, (a) in lieu of delivering such original recorded Mortgage or
power of attorney referred to in clause (I)(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
(I)(v) 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, 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 270 days of the Closing Date, in
instances where an original assumption, modification or buydown 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, deliver a certified copy thereof.
To the extent not already recorded, the Master Servicer, at
the expense of the Sellers 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 REMIC I, in the appropriate
public office for real property records, each Assignment delivered to it
pursuant to (I)(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 Sellers, 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.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Depositor further agrees that it will
cause, within 30 Business Days after the Closing Date, the MERS(R) System to
indicate that such Mortgage Loan has been assigned by
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the Depositor to the Trustee in accordance with this Agreement for the benefit
of the Certificateholders by including (or deleting, in the case of a Mortgage
Loan which is repurchased in accordance with this Agreement) 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 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.
Notwithstanding the foregoing, for administrative convenience
and facilitation of servicing and to reduce closing costs, the Assignments shall
not be required to be submitted for recording (except with respect to any
Mortgage Loan located in Florida and Maryland) unless such failure to record
would result in a withdrawal or a downgrading by any Rating Agency of the rating
on any Class of Certificates. 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: (i) reasonable direction by
Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) the
occurrence of a Master Servicer Event of Default, (iii) the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the
occurrence of a servicing transfer as described in Section 7.02 of this
Agreement and (v) with respect to any one Assignment the occurrence of a
foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Sellers fail 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 Fund as set forth
herein.
In connection with its servicing of Cooperative Loans and as
required by law, the Master Servicer will use its best efforts to file timely
continuation statements with regard to each financing statement and assignment
relating to Cooperative Loans as to which the related Cooperative Unit is
located outside of the State of New York.
With respect to a maximum of approximately 1.00% 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) 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.
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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 Sellers, 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 Fund that is either (i)
a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act
effective November 27, 2003 or (ii) "High-Cost Home Loan" as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004.
SECTION 2.02 Acceptance of REMIC I 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(v) above and
all other assets included in the definition of "REMIC I" to the extent of
amounts deposited into the Distribution Account) 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 "REMIC I" in trust for the exclusive use
and benefit of all present and future Certificateholders.
On or prior to the Closing Date, the Trustee agrees, for the
benefit of the Certificateholders, to execute and deliver to the Depositor and
the Master Servicer an acknowledgment of receipt of each Mortgage Note (with any
exceptions noted), substantially in the form attached as Exhibit C-3 hereto.
The Trustee agrees, for the benefit of the Certificateholders,
to review, or that it has reviewed pursuant to Section 2.01 each Mortgage File
on or prior to the Closing Date, with respect to each Mortgage Loan (or, with
respect to any document delivered after the Startup Day, within 90 days of
receipt and with respect to any Qualified Substitute Mortgage, within 90 days
after the assignment thereof). The Trustee further agrees, for the benefit of
the Certificateholders, to certify in substantially the form attached hereto as
Exhibit C-1, within 90 days following the date on which the Trustee receives the
remaining contents of each Mortgage File from the Depositor, with respect to
each Mortgage Loan (or, with respect to any document delivered after the Startup
Day, within 90 days of receipt and with respect to any Qualified Substitute
Mortgage, within 90 days after the assignment thereof) that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan
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specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents required to be delivered to it
pursuant Section 2.01 of this Agreement are in its possession, (ii) such
documents have been reviewed by it and have not been mutilated, damaged or torn
and relate to such Mortgage Loan and (iii) based on its examination and only as
to the foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (i), (iii) and (xiv) of the Mortgage Loan Schedule
accurately reflects information set forth in the Mortgage File. It is herein
acknowledged that, in conducting such review, the Trustee is under no duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, enforceable, or
appropriate for the represented purpose or that they have actually been recorded
or that they are other than what they purport to be on their face.
Prior to the first anniversary date of this Agreement the
Trustee shall deliver to the Depositor, the Master Servicer and the Trust
Administrator a final certification in the form annexed hereto as Exhibit C-2
evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon.
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 all present and
future Certificateholders, which may provide that the custodian shall, on behalf
of the Trustee, and as the Trustee's agent, conduct the review of each Mortgage
File required under the first paragraph of this Section 2.02, provided that, if
the custodian so appointed is the Depositor or an Affiliate of the Depositor,
the Trustee shall conduct such review.
SECTION 2.03 Repurchase or Substitution of Mortgage Loans by
the Sellers or the Depositor
(a) Upon discovery or receipt of notice of any materially
defective document in, or that a document is missing from, a Mortgage File or of
the breach by the Sellers 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 Trustee shall promptly notify the
Sellers, the Trust Administrator and the Master Servicer of such defect, missing
document or breach and request that the Sellers deliver such missing document or
cure such defect or breach
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within 90 days from the date the Sellers were notified of such missing document,
defect or breach, and if the Sellers do not deliver such missing document or
cure such defect or breach in all material respects during such period, the
Master Servicer shall enforce the obligations of the Sellers under the Mortgage
Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the
Purchase Price within 90 days after the date on which the Sellers were notified
(subject to Section 2.03(e)) of such missing document, defect or breach, if and
to the extent that the Sellers are obligated to do so under the Mortgage Loan
Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall
be deposited in the Collection Account, and the Trustee, upon receipt of written
certification from the Master Servicer of such deposit, shall release to the
Sellers the related Mortgage File and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as the Sellers shall
furnish to it and as shall be necessary to vest in the Sellers any Mortgage Loan
released pursuant hereto, and the Trustee shall have no further responsibility
with regard to such Mortgage File. In lieu of repurchasing any such Mortgage
Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement,
the Sellers 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 Sellers 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 shall
constitute the sole remedy respecting such omission, defect or breach available
to the Trustee on behalf of the Certificateholders.
(b) Reserved.
(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 Sellers
substitute a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by the Sellers delivering to the Trustee, for such Qualified
Substitute Mortgage Loan or Loans, the 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
Trustee shall acknowledge receipt for such Qualified Substitute Mortgage Loan or
Loans and, within ten Business Days thereafter, review such documents as
specified in Section 2.02 and deliver to the Depositor, the Master Servicer and
the Trust Administrator, with respect to such Qualified Substitute Mortgage Loan
or Loans, a certification substantially in the form attached hereto as Exhibit
C-1, with any
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applicable exceptions noted thereon. Within one year of the date of
substitution, the Trustee shall deliver to the Depositor, the Master Servicer
and the Trust Administrator a certification substantially in the form of Exhibit
C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans,
with any applicable exceptions noted thereon. 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 Sellers shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. The Depositor shall give or
cause to be given written notice to the Certificateholders that such
substitution has taken place, shall 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 shall
deliver a copy of such amended Mortgage Loan Schedule to the Trustee and the
Trust Administrator. Upon such substitution, such Qualified Substitute Mortgage
Loan or Loans shall constitute part of the 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.
For any month in which the Sellers substitute 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
Net Mortgage Rate. On the date of such substitution, the Sellers will deliver or
cause to be delivered to the Master Servicer for deposit in the Collection
Account an amount equal to the Substitution Shortfall Amount, if any, and the
Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans
and certification by the Master Servicer of such deposit, shall release to the
Sellers the related Mortgage File or Files and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Sellers shall deliver to it and as shall be necessary to vest therein any
Deleted Mortgage Loan released pursuant hereto.
In addition, the Sellers shall obtain at their 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 Sellers, 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. In connection therewith, the
Sellers or the Depositor 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 Sellers, if
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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 Sellers
under the Mortgage Loan Purchase Agreement, or (ii) 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 Sellers, 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 for breach of a
representation or warranty.
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 Florida and is duly authorized and
qualified (or a Sub-Servicer on behalf of the Master Servicer
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 (or such Sub-Servicer is) otherwise not required
under applicable law to effect such qualification and, in any
event, is (or such Sub-Servicer is) in compliance with, or
exempt from, 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
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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 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) 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; and
(v) 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.
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 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 and the Trust
Administrator. 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 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 of the Mortgage Files, subject to the provisions of
Section 2.01 and Section 2.02,
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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, 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 I Regular Interests;
Acceptance of REMIC II by the Trustee.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee, without recourse all the right, title and interest of the Depositor in
and to the REMIC I Regular Interests for the benefit of the Class R
Certificateholders (as holder of the Class R-I Interest and Class R-II Interest)
and REMIC II (as holder of the REMIC I Regular Interests). 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 all present
and future Class R Certificateholders (as holder of the Class R-I Interest and
Class R-II Interest) and REMIC II (as holder of the REMIC I Regular Interests).
The rights of the Class R Certificateholders (as holder of the Class R-I
Interest and Class R-II Interest) and REMIC II (as holder of the REMIC I Regular
Interest) to receive distributions from the proceeds of REMIC II in respect of
the Class R-II Interest and REMIC II Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-II Interest and the
REMIC I Regular Interests, shall be as set forth in this Agreement.
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ARTICLE III.
ADMINISTRATION AND SERVICINGOF 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 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 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 and the
Trust Administrator, 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
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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, following consultation with the related Mortgagor,
advance or cause to be advanced funds as necessary for the purpose of effecting
the payment of taxes and assessments on the Mortgaged Properties 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, 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.
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 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. Notwithstanding the foregoing, nothing in this
Agreement shall prohibit a transfer by the Trustee of a Mortgage Loan to the
Sellers upon the refinancing of the Mortgage Loan through a "significant
modification" within the meaning of Section 1001 of the Code. Upon such
refinancing, the Purchase Price shall be deposited into the Collection Account,
and the Trustee, upon receipt of written certification from the Master Servicer
of such deposit, shall release to the Sellers the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as the Sellers shall furnish to it and as shall be
necessary to vest in the Sellers any Mortgage Loan released pursuant hereto, and
the Trustee shall have no further responsibility with regard to such Mortgage
Files. The Trustee, the Trust Administrator and the Master Servicer shall treat
any such refinancing as a prepayment in full of such Mortgage Loan for all
purposes of this Agreement.
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.
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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.
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 and (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. 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 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.
Notwithstanding the foregoing, the parties hereto agree that
U.S. Trust Company, N.A. may act as Sub-Servicer pursuant to the terms hereof.
(b) 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 Sellers 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
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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 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
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, Trust Administrator, Trustee 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 Trust Administrator, the Trustee and the
Certificateholders shall not be deemed parties thereto and
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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 Trust Administrator.
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 Trust Administrator 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 Trust Administrator elects to terminate any Sub-Servicing Agreement
in accordance with its terms as provided in Section 3.03. Upon such assumption,
the Trust Administrator, its designee or the successor servicer for the Trust
Administrator 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 Trust Administrator, 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
Trust Administrator, 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.
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 any 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, the Master Servicer may
in its discretion (i) waive any late payment charge or, if applicable, penalty
interest 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
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Servicer, such default is reasonably foreseeable, the Master Servicer,
consistent with the standards set forth in Section 3.01, may also 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. In addition, in connection with any
Curtailment of a Mortgage Loan, the Master Servicer, to the extent not
inconsistent with the terms of the Mortgage Note and local law and practice, may
permit the Mortgage Loan to be re-amortized such that the Monthly Payment is
recalculated as an amount that will fully amortize the remaining Stated
Principal Balance thereof by the original Maturity Date based on the original
Mortgage Rate; provided, that such re-amortization shall not be permitted if it
would constitute a reissuance of the Mortgage Loan for federal income tax
purposes, except if such reissuance is described in Treasury Regulation Section
1.860G-2(b)(3).
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. 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
deposit such proceeds in the Collection Account or remit such proceeds to the
Master Servicer for deposit in the Collection Account not later than two
Business Days after the deposit of such amounts in the Sub-Servicing Account.
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 may 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, 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; provided, however, that Servicing Accounts need only be established
and maintained by the Master Servicer to the extent that it is collecting Escrow
Payments from the Mortgagors. The Master 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 receipt thereof, all Escrow
Payments collected on
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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.
SECTION 3.10 Collection Account and Distribution Account.
On behalf of the Trust Fund, the Master Servicer shall
establish and maintain one or more accounts (such account or accounts, the
"Collection Account"), held in trust for the benefit of the Trust Administrator,
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, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
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(iii) all Insurance Proceeds 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; and
(vii) all amounts required to be deposited in connection with
shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Section 2.03.
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 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 Trust Administrator, as
agent for the Trustee, shall establish and maintain one or more accounts (such
account or accounts, the "Distribution Account"), held in trust for the benefit
of the Trustee and the Certificateholders. On behalf of the Trust Fund, the
Master Servicer shall deliver to the Trust Administrator in immediately
available funds for deposit in the Distribution Account on or before 3:00 p.m.
New York time (i) on the Master Servicer Remittance Date, that portion of the
Available Distribution Amount (calculated without regard to the references in
clause (2) of the definition thereof to amounts that may be withdrawn from the
Distribution Account) for the related Distribution Date then on deposit in the
Collection Account.
(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 and the Depositor of the location of the
Collection Account maintained by it when established and prior to any change
thereof. The Trust Administrator shall give notice to the Master Servicer, the
Trustee and the Depositor of the location of the Distribution Account when
established and prior to any change thereof.
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(d) Funds held in the Collection Account at any time may be
delivered by the Master Servicer to 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 Trust Administrator 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 Trust Administrator for deposit
in the Distribution Account any amount not required to be deposited therein, it
may at any time request that the Trust Administrator 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 Trust Administrator from time to time for deposit, and upon written
notification from the Master Servicer, the Trust Administrator 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 Trust Administrator shall deposit such funds in the
Distribution Account, subject to withdrawal thereof pursuant to Section 7.02(b)
or as otherwise 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 Trust Administrator 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);
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(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 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,
(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) 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 Sellers, 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
(xi) to clear and terminate the Collection Account
pursuant to Section 9.01.
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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 and the Trust Administrator, 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 Trust Administrator 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 and the Trustee (if the Trust
Administrator is not the Master Servicer) amounts to which
each is entitled pursuant to Section 8.05 and any other
Extraordinary Trust Fund Expenses;
(iii) to pay to the Master Servicer any interest
income earned on funds deposited in the Distribution Account
pursuant to Section 3.12(c);
(iv) to reimburse itself pursuant to Section 7.02;
(v) to pay any amounts in respect of taxes pursuant
to 10.01(g)(iii);
(vi) [reserved];
(vii) to reimburse itself 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
(viii) 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 Trust Administrator shall direct any depository
institution maintaining the Distribution Account (for purposes of this Section
3.12, also an "Investment Account"), 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 Trust Administrator 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 the Trust Administrator is the
obligor thereon. All such Permitted Investments shall be held to maturity,
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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 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 Trust
Administrator, shall be for the benefit of the Trust Administrator and shall be
subject to its withdrawal at any time. The Trust Administrator shall remit to
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) 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 Trust Administrator may and, subject to Section 8.01
and Section 8.02(a)(v), upon the request of the Holders of Certificates
representing 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 [Reserved].
SECTION 3.14 Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage.
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(a) The Master Servicer shall cause to be maintained for each
Mortgage Loan (other than a Cooperative Loan) fire insurance with extended
coverage on the related Mortgaged Property in an amount which is at least equal
to the least of (i) the current principal balance of such Mortgage Loan, (ii)
the amount necessary to fully compensate for any damage or loss to the
improvements that are a part of such property on a replacement cost basis and
(iii) the maximum insurable value of the improvements which are a part of such
Mortgaged Property, in each case in an amount not less than such amount as is
necessary to avoid the application of any coinsurance clause contained in the
related hazard insurance policy. The Master Servicer shall also cause to be
maintained fire insurance with extended coverage on each REO Property (other
than REO Properties acquired in respect of Cooperative Loans) in an amount which
is at least equal to the lesser of (i) the maximum insurable value of the
improvements which are a part of such property and (ii) the outstanding
principal balance of the related Mortgage Loan at the time it became an REO
Property, plus accrued interest at the Mortgage Rate and related Servicing
Advances. The Master Servicer will comply in the performance of this Agreement
with all reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by the Master Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing loans held for its own account, subject to the terms and
conditions of the related Mortgage and Mortgage Note) shall be deposited in the
Collection Account, subject to withdrawal pursuant to Section 3.11, if received
in respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.23, if received in respect of an REO Property. Any cost
incurred by the Master Servicer in maintaining any such insurance shall not, for
the purpose of calculating distributions to Certificateholders, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If the Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, the Master Servicer will cause to be maintained a flood insurance
policy in respect thereof. Such flood insurance shall be in an amount equal to
the lesser of (i) the unpaid principal balance of the related Mortgage Loan and
(ii) the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program (assuming that the area in
which such Mortgaged Property is located is participating in such program).
In the event that the Master Servicer shall obtain and
maintain a blanket policy with an insurer having a General Policy Rating of A:X
or better in Best's Key Rating Guide (or such other rating that is comparable to
such rating) insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first two sentences of this Section 3.14, it being understood and agreed
that such policy may contain a deductible clause, in which case the Master
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with the first two
sentences of this Section 3.14, and there shall have been one or more losses
which would have been covered by such policy, deposit to the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such
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deductible clause. In connection with its activities as administrator and
servicer of the Mortgage Loans, the Master Servicer agrees to prepare and
present, on behalf of itself, the Trustee and the Certificateholders, claims
under any such blanket policy in a timely fashion in accordance with the terms
of such policy.
(b) The Master Servicer shall keep in force during the term of
this Agreement a policy or policies of insurance covering errors and omissions
for failure in the performance of the Master Servicer's obligations under this
Agreement, which policy or policies would meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac if it were the purchaser of the Mortgage Loans (other than the
amount of the deductible; provided, however, that if Fitch's senior unsecured
debt rating of U.S. Trust Corporation is downgraded below "BBB," the Master
Servicer shall, within 30 days of such downgrade, obtain a policy or policies of
insurance covering errors and omissions for failure in the performance of the
Master Servicer's obligations under this Agreement, which policy or policies
would meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac if it were the
purchaser of the Mortgage Loans), unless the Master Servicer has obtained a
waiver of such requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Master Servicer
shall also maintain a fidelity bond that would meet the requirements of ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac, other than the amount of the deductible, unless the Master
Servicer has obtained a waiver of such requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac. The Master Servicer shall provide the Trustee (upon the Trustee's
reasonable request) with copies of any such insurance policies and fidelity
bond. The Master Servicer shall be deemed to have complied with this provision
if an Affiliate of the Master Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Master Servicer. Any such
errors and omissions policy and fidelity bond shall by its terms not be
cancelable without thirty days' prior written notice to the Trustee and the
Trust Administrator. The Master Servicer shall also cause each Sub-Servicer to
maintain a policy of insurance covering errors and omissions and a fidelity bond
which would meet such requirements.
SECTION 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of
any conveyance or prospective conveyance of any Mortgaged Property by any
Mortgagor (whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains or is to remain liable under the Mortgage Note and/or
the Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto. If the Master
Servicer reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause, or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Master Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Master Servicer
is also authorized to enter into a substitution of liability agreement with such
person, pursuant to which the original Mortgagor is released from liability and
such person is substituted as the Mortgagor and becomes liable under the
Mortgage Note, provided that no such substitution shall
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be effective unless such person satisfies the underwriting criteria of the
Master Servicer. In connection with any assumption or substitution, the Master
Servicer shall apply such underwriting standards and follow such practices and
procedures as shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely by it. The
Master Servicer shall not take or enter into any assumption and modification
agreement, however, unless (to the extent practicable in the circumstances) it
shall have received confirmation, in writing, of the continued effectiveness of
any applicable hazard insurance policy, or a new policy meeting the requirements
of this Section is obtained. Any fee collected by the Master Servicer in respect
of an assumption or substitution of liability agreement will be retained by the
Master Servicer as additional servicing compensation. In connection with any
such assumption, no material term of the Mortgage Note (including but not
limited to the related Mortgage Rate and the amount of the Monthly Payment) may
be amended or modified, except as otherwise required pursuant to the terms
thereof. The Master Servicer shall notify the Trustee and the Trust
Administrator that any such substitution or assumption agreement has been
completed by forwarding to the Trustee (with a copy to the Trust Administrator)
the executed original of such substitution or assumption agreement, which
document shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Master Servicer shall not be deemed to be in default,
breach or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or by the terms of the
Mortgage Note or any assumption which the Master Servicer may be restricted by
law from preventing, for any reason whatever. For purposes of this Section 3.15,
the term "assumption" is deemed to also include a sale (of the Mortgaged
Property) subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
SECTION 3.16 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall, consistent with the servicing
standard set forth in Section 3.01, foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments pursuant to Section 3.07. The Master
Servicer shall be responsible for all costs and expenses incurred by it in any
such proceedings; provided, however, that such costs and expenses will be
recoverable as Servicing Advances by the Master Servicer as contemplated in
Section 3.11 and Section 3.23. The foregoing is subject to the provision that,
in any case in which Mortgaged Property shall have suffered damage from an
Uninsured Cause, the Master Servicer shall not be required to expend its own
funds toward the restoration of such property unless it shall determine in its
discretion that such restoration will increase the proceeds of liquidation of
the related Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section
3.16 or any other provision of this Agreement, with respect to any Mortgage Loan
as to which the Master Servicer has received actual notice of, or has actual
knowledge of, the presence of any toxic or
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hazardous substance on the related Mortgaged Property, the Master Servicer shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to, such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Fund, the Trust Administrator, the Master Servicer or the Certificateholders
would be considered to hold title to, to be a "mortgagee-in- possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Master
Servicer has also previously determined, based on its reasonable judgment and a
report prepared by a Person who regularly conducts environmental audits using
customary industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based
materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any federal, state or
local law or regulation, or that if any such materials are present for
which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by
this Section 3.23 shall be advanced by the Master Servicer, subject to the
Master Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.11(a)(ix), such right of reimbursement being prior to the
rights of Certificateholders to receive any amount in the Collection Account
received in respect of the affected Mortgage Loan or other Mortgage Loans.
If the Master Servicer determines, as described above, that it
is in the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Master Servicer,
subject to the Master Servicer's right to be reimbursed therefor from the
Collection Account as provided in Section 3.11(a)(ix), such right of
reimbursement being prior to the rights of Certificateholders to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
(c) [Reserved].
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds
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or Liquidation Proceeds, in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the Master Servicer or any
Sub-Servicer for any related unreimbursed Servicing Advances and P&I Advances,
pursuant to Section 3.11(a)(ii) or (a)(iii)(B); second, to accrued and unpaid
interest on the Mortgage Loan, to the date of the Final Recovery Determination,
or to the Due Date prior to the Distribution Date on which such amounts are to
be distributed if not in connection with a Final Recovery Determination; and
third, as a recovery of principal of the Mortgage Loan. If the amount of the
recovery so allocated to interest is less than the full amount of accrued and
unpaid interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Master Servicer as follows: first, to unpaid Servicing Fees;
and second, to the balance of the interest then due and owing. The portion of
the recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Master Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii)(A).
SECTION 3.17 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer will
immediately notify the Trustee by a certification in the form of Exhibit E-2
(which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the Collection Account pursuant to Section 3.10 have been or
will be so deposited) of a Servicing Officer and shall request delivery to it of
the Mortgage File. Upon receipt of such certification and request, the Trustee
shall promptly release the related Mortgage File to the Master Servicer. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account or the Distribution
Account.
The Trustee shall, at the written request and expense of any
Certificateholder, provide a written report to such Certificateholder of all
Mortgage Files released to the Master Servicer for servicing purposes.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Master Servicer and delivery to the Trustee of a Request for
Release in the form of Exhibit E-l, release the related Mortgage File to the
Master Servicer, and the Trustee shall, at the direction of the Master Servicer,
execute such documents as shall be necessary to the prosecution of any such
proceedings. Such Request for Release shall obligate the Master Servicer to
return each and every document previously requested from the Mortgage File to
the Trustee when the need therefor by the Master Servicer no longer exists,
unless the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Collection Account or
the Mortgage File or such document has been delivered to an attorney, or to a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially, and the Master
Servicer has delivered to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a
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Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Collection Account have been so deposited, or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee to the Master Servicer.
(c) Upon written certification of a Servicing Officer, the
Trustee shall execute and deliver to the Master Servicer any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
SECTION 3.18 Servicing Compensation.
As compensation for the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to the Servicing Fee with
respect to each Mortgage Loan payable solely from payments of interest in
respect of such Mortgage Loan, subject to Section 3.24. In addition, the Master
Servicer shall be entitled to recover unpaid Servicing Fees out of Insurance
Proceeds or Liquidation Proceeds to the extent permitted by Section
3.11(a)(iii)(A) and out of amounts derived from the operation and sale of an REO
Property to the extent permitted by Section 3.23. The right to receive the
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement.
Additional servicing compensation in the form of assumption
fees, late payment charges, prepayment charges and other similar fees and
charges shall be retained by the Master Servicer only to the extent such fees or
charges are received by the Master Servicer. The Master Servicer shall also be
entitled pursuant to Section 3.11(a)(iv) to withdraw from the Collection
Account, and pursuant to Section 3.23(b) to withdraw from any REO Account, as
additional servicing compensation, interest or other income earned on deposits
therein, subject to Section 3.12. The Master Servicer shall be required to pay
all expenses incurred by it in connection with its servicing activities
hereunder (including premiums for the insurance required by Section 3.14, to the
extent such premiums are not paid by the related Mortgagors or by a
Sub-Servicer, servicing compensation of each Sub-Servicer, and to the extent
provided herein in Section 8.05, the fees and expenses of the Trustee and the
Trust Administrator) and shall not be entitled to reimbursement therefor except
as specifically provided herein.
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SECTION 3.19 Reports to the Trustee and the Trust
Administrator; Collection Account Statements.
Not later than fifteen days after each Distribution Date, the
Master Servicer shall forward to the Trust Administrator, upon the request of
the Trust Administrator, a statement prepared by the Master Servicer setting
forth the status of the Collection Account as of the close of business on the
last day of the calendar month relating to such Distribution Date and showing,
for the period covered by such statement, the aggregate amount of deposits into
and withdrawals from the Collection Account of each category of deposit
specified in Section 3.10(a) and each category of withdrawal specified in
Section 3.11. Such statement may be in the form of the then current ▇▇▇▇▇▇ Mae
Monthly Accounting Report for its Guaranteed Mortgage Pass-Through Program with
appropriate additions and changes, and shall also include information as to the
aggregate of the outstanding principal balances of all of the Mortgage Loans as
of the last day of the calendar month immediately preceding such Distribution
Date. Copies of such statement shall be provided by the Trust Administrator to
any Certificateholder and to any Person identified to the Trust Administrator as
a prospective transferee of a Certificate, upon the request and at the expense
of the requesting party, provided such statement is delivered by the Master
Servicer to the Trust Administrator.
SECTION 3.20 Statement as to Compliance.
On or before March 15th of each calendar year commencing in
2004, the Master Servicer will deliver to the Trust Administrator, the Trustee,
the Depositor and the Rating Agency, an Officers' Certificate (in the form
attached hereto as Exhibit I) stating, as to each signatory thereof, that (i) a
review of the activities of the Master Servicer during the preceding year and of
performance under this Agreement has been made under such officers' supervision
and (ii) to the best of such officers' knowledge, based on such review, the
Master Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. Copies of any such statement shall be provided by the
Trust Administrator to any Certificateholder and to any Person identified to the
Trust Administrator as a prospective transferee of a Certificate, upon the
request and at the expense of the requesting party, provided that such statement
is delivered by the Master Servicer to the Trust Administrator.
SECTION 3.21 Independent Public Accountants' Servicing Report.
Not later than March 15th of each calendar year commencing in
2004, the Master Servicer, at its expense, shall cause a nationally recognized
firm of independent certified public accountants to furnish to the Master
Servicer a report stating that (i) it has obtained a letter of representation
regarding certain matters from the management of the Master Servicer which
includes an assertion that the Master Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of residential mortgage
loans during the most recently completed fiscal year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established
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by the American Institute of Certified Public Accountants, such representation
is fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respect to those Sub-Servicers. Immediately upon receipt of such report,
the Master Servicer shall furnish a copy of such report to the Trustee, the
Trust Administrator and the Rating Agencies. Copies of such statement shall be
provided by the Trust Administrator to any Certificateholder upon request at the
Master Servicer's expense, provided that such statement is delivered by the
Master Servicer to the Trust Administrator. In the event such firm of
independent certified public accountants requires the Trust Administrator to
agree to the procedures performed by such firm, the Master Servicer shall direct
the Trust Administrator in writing to so agree; it being understood and agreed
that the Trust Administrator will deliver such letter of agreement in conclusive
reliance upon the direction of the Master Servicer, and the Trust Administrator
has not made any independent inquiry or investigation as to, and shall have no
obligation or liability in respect of, the sufficiency, validity or correctness
of such procedures.
SECTION 3.22 Access to Certain Documentation.
The Master Servicer shall provide to the Office of the
Controller of the Currency, the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to the documentation
regarding the Mortgage Loans required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Master Servicer designated by
it. In addition, access to the documentation regarding the Mortgage Loans
required by applicable laws and regulations will be provided to such
Certificateholder, the Trustee, the Trust Administrator and to any Person
identified to the Master Servicer as a prospective transferee of a Certificate,
upon reasonable request during normal business hours at the offices of the
Master Servicer designated by it at the expense of the Person requesting such
access.
SECTION 3.23 Title, Management and Disposition of REO
Property.
(a) The deed or certificate of sale of any REO Property shall
be taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. The Master Servicer, on behalf of the Trust Fund and
consistent with the servicing standard set forth in Section 3.01, shall either
sell any REO Property before the close of the third taxable year following the
year the Trust Fund acquires ownership of such REO Property for purposes of
Section 860G(a)(8) of the Code or request from the Internal Revenue Service, no
later than 60 days before the day on which the three-year grace period would
otherwise expire, an extension of the three-year grace period, unless the Master
Servicer shall have delivered to the Trustee, the Trust Administrator and the
Depositor an Opinion of Counsel, addressed to the Trustee, the Trust
Administrator and the Depositor, to the effect that the holding by the Trust
Fund of such REO Property subsequent to three years after its acquisition will
not result in the imposition on any Trust REMIC of taxes on "prohibited
transactions" thereof, as defined in Section 860F of the
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Code, or cause any Trust REMIC to fail to qualify as a REMIC under Federal law
at any time that any Certificates are outstanding. The Master Servicer shall,
consistent with the servicing standard set forth in Section 3.01, manage,
conserve, protect and operate each REO Property for the Certificateholders
solely for the purpose of its prompt disposition and sale in a manner which does
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by any
Trust REMIC of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code, or any "net income from foreclosure property"
which is subject to taxation under the REMIC Provisions.
(b) The Master Servicer shall segregate and hold all funds
collected and received in connection with the operation of any REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to REO Properties an account held in trust for the Trustee
for the benefit of the Certificateholders (the "REO Account"), which shall be an
Eligible Account. The Master Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to separate ledgers for each REO
Property. The Master Servicer shall be entitled to retain or withdraw any
interest income paid on funds deposited in the REO Account.
(c) The Master Servicer shall have full power and authority,
subject only to the servicing standard set forth in Section 3.01 and the
specific requirements and prohibitions of this Agreement, to do any and all
things in connection with any REO Property as are consistent with the manner in
which the Master Servicer manages and operates similar property owned by the
Master Servicer or any of its Affiliates, all on such terms and for such period
as the Master Servicer deems to be in the best interests of Certificateholders.
In connection therewith, the Master Servicer shall deposit, or cause to be
deposited in the clearing account (which account must be an Eligible Account) in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than two Business Days after the Master Servicer's receipt
thereof, and shall thereafter deposit in the REO Account, in no event more than
one Business Day after the deposit of such funds into the clearing account, all
revenues received by it with respect to an REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with
respect to an REO Property are insufficient for the purposes set forth in
clauses (i) through (iii) above with respect to such REO Property, the Master
Servicer shall, consistent with the servicing standard set forth in Section
3.01, advance from its own funds such amount as is necessary for such purposes
if, but only if, the Master Servicer would make such advances if the Master
Servicer
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owned the REO Property and if in the Master Servicer's judgment, the payment of
such amounts will be recoverable from the rental or sale of the REO Property.
Notwithstanding the foregoing, none of the Master Servicer or
the Trustee shall:
(i) authorize the Trust Fund to enter into, renew or extend
any New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such building
or other improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the
Trust Fund; unless, in any such case, the Master Servicer has obtained
an Opinion of Counsel, provided to the Trustee and the Trust
Administrator, to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code at any time that it is held
by the Trust Fund, in which case the Master Servicer may take such
actions as are specified in such Opinion of Counsel.
The Master Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues
(net of such costs and expenses) to the Master Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.23(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Master Servicer of any of its
duties and obligations to the Trustee on behalf of the
Certificateholders with respect to the operation and management of any
such REO Property; and
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(iv) the Master Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
The Master Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for it related to
its duties and obligations hereunder for indemnification of the Master Servicer
by such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. The Master Servicer shall be solely liable
for all fees owed by it to any such Independent Contractor, irrespective of
whether the Master Servicer's compensation pursuant to Section 3.18 is
sufficient to pay such fees.
(d) In addition to the withdrawals permitted under Section
3.23(c), the Master Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself or any Sub-Servicer unpaid
Servicing Fees in respect of the related Mortgage Loan; and (ii) to reimburse
itself or any Sub-Servicer for unreimbursed Servicing Advances and P&I Advances
made in respect of such REO Property or the related Mortgage Loan. Any income
from the related REO Property received during any calendar months prior to a
Final Recovery Determination, net of any withdrawals made pursuant to Section
3.23(c) or this Section 3.23(d), shall be withdrawn by the Master Servicer from
each REO Account maintained by it and deposited into the Distribution Account in
accordance with Section 3.10(d)(ii) on the Master Servicer Remittance Date
relating to a Final Recovery Determination with respect to such Mortgage Loan,
for distribution on the related Distribution Date in accordance with Section
4.01.
(e) Subject to the time constraints set forth in Section
3.23(a) and consistent with the servicing standard set forth in Section 3.01,
each REO Disposition shall be carried out by the Master Servicer at such price
and upon such terms and conditions as the Master Servicer shall deem necessary
or advisable, as shall be normal and usual in its general servicing activities
for similar properties.
(f) The proceeds from the REO Disposition, net of any amount
required by law to be remitted to the Mortgagor under the related Mortgage Loan
and net of any payment or reimbursement to the Master Servicer or any
Sub-Servicer as provided above, shall be deposited in the Distribution Account
in accordance with Section 3.10(d)(ii) on the Master Servicer Remittance Date in
the month following the receipt thereof for distribution on the related
Distribution Date in accordance with Section 4.01. Any REO Disposition shall be
for cash only (unless changes in the REMIC Provisions made subsequent to the
Startup Day allow a sale for other consideration).
(g) The Master Servicer shall file information returns with
respect to the receipt of mortgage interest received in a trade or business,
reports of foreclosures and abandonments of any Mortgaged Property and
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code, respectively. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
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SECTION 3.24 Obligations of the Master Servicer in Respect of
Prepayment Interest Shortfalls.
The Master Servicer shall deliver to the Trust Administrator
for deposit into the Distribution Account on or before 3:00 p.m. New York time
on the Master Servicer Remittance Date from its own funds an amount (the
"Compensating Interest") equal to the lesser of (i) the aggregate of the
Prepayment Interest Shortfalls for the related Distribution Date resulting from
full or partial Principal Prepayments during the related Prepayment Period and
(ii) one-half of the amount of its aggregate Servicing Fee for the most recently
ended calendar month.
SECTION 3.25 Obligations of the Master Servicer in Respect of
Monthly Payments.
In the event that a shortfall in any collection on or
liability with respect to any Mortgage Loan results from or is attributable to
adjustments to Stated Principal Balances that were made by the Master Servicer
in a manner not consistent with the terms of the related Mortgage Note and this
Agreement, the Master Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Trust Administrator for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Trust
Administrator, the Depositor and any successor master servicer in respect of any
such liability. Such indemnities shall survive the termination or discharge of
this Agreement.
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ARTICLE IV.
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
(a)(1) On each Distribution Date, the Trust Administrator
shall withdraw from the Distribution Account an amount equal to the Available
Distribution Amount and distribute the following amounts, in the following order
of priority:
(i) concurrently, to the Holders of the Class A Certificates,
the Interest Distribution Amount for each such Class for such
Distribution Date, on a PRO RATA basis based on the entitlement of each
such Class to such interest;
(ii) concurrently, (A) to the Holders of the Class A-1
Certificates, to the extent of the Senior Principal Distribution Amount
for such Class of Class A Certificates, in reduction of the Certificate
Principal Balance of such Class, until the Certificate Principal
Balance of such Class has been reduced to zero, (B) to the Holders of
the Class A-2 Certificates, to the extent of the Senior Principal
Distribution Amount for such Class of Class A Certificates, in
reduction of the Certificate Principal Balance of such Class, until the
Certificate Principal Balance of such Class has been reduced to zero,
(C) to the Holders of the Class A-3 Certificates, to the extent of the
Senior Principal Distribution Amount for such Classes of Certificates,
in reduction of the Certificate Principal Balance of each such Class,
until the Certificate Principal Balance of such Class has been reduced
to zero, (D) to the Holders of the Class A-4 Certificates, to the
extent of the Senior Principal Distribution Amount for such Class of
Class A Certificates, in reduction of the Certificate Principal Balance
of such Class, until the Certificate Principal Balance of such Class
has been reduced to zero, (E) to the Holders of the Class A-5
Certificates, to the extent of the Senior Principal Distribution Amount
for such Class of Class A Certificates, in reduction of the Certificate
Principal Balance of such Class, until the Certificate Principal
Balance of such Class has been reduced to zero and (F) to the Holders
of the Class A-6 Certificates, to the extent of the Senior Principal
Distribution Amount for such Classes of Certificates, in reduction of
the Certificate Principal Balance of each such Class, until the
Certificate Principal Balance of such Class has been reduced to zero;
(iii) to the Holders of the Subordinate Certificates, the
Interest Distribution Amount for each such Class for such Distribution
Date, distributable in the order of priority from the Class of
Subordinate Certificates with the lowest numerical designation to the
Class of Subordinate Certificates with the highest numerical
designation;
(iv) to the Holders of the Subordinate Certificates, an
aggregate amount equal to the Subordinate Principal Distribution Amount
for such Distribution Date, allocable among the Classes of Subordinate
Certificates in reduction of the Certificate
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Principal Balances thereof PRO RATA in accordance with the respective
amounts payable as to each such Class pursuant to the priorities and
amounts set forth in Section 4.01(b)(i);
(v) to the Excess Diverted Interest Reserve Account, the
Excess Diverted Interest Reserve Amount, if any, and
(vi) to the Holders of the Class R Certificates, any remaining
amounts.
Immediately prior to the distributions to the Holders of the
Certificates on each Distribution Date, any adjustments to the Certificate
Principal Balances of the Certificates required by this paragraph shall be made.
An amount equal to the lesser of (x) the amount of Subsequent Recoveries
included in the Available Funds for such Distribution Date and (y) the aggregate
amount of related Realized Losses, other than Excess Bankruptcy Losses, Excess
Fraud Losses, Excess Special Hazard Losses and Extraordinary Losses, previously
allocated to the Certificates and that remain "outstanding" as set forth below
shall be applied as follows: first, to increase the Certificate Principal
Balance of the Class of Certificates with the highest payment priority to which
such Realized Losses were previously allocated, to the extent of any such
Realized Losses previously allocated to such Class and remaining "outstanding";
second, to increase the Certificate Principal Balance of the Class of
Certificates with the next highest payment priority to which such Realized
Losses were previously allocated, to the extent of any such Realized Losses
previously allocated to such Class and remaining "outstanding"; and so forth.
For purposes of the foregoing, with respect to any Class of Certificates, the
amount of previously allocated Realized Losses that have been offset by an
increase in Certificate Principal Balance as provided above shall be deemed no
longer "outstanding", but not by more than the amount of Realized Losses
previously allocated to that Class of Certificates pursuant to Section 4.04.
Holders of any Class of Certificates with respect to which there shall have been
a Certificate Principal Balance increase pursuant to this paragraph will not be
entitled to any distribution in respect of interest on the amount of such
increase for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(2) All references above to the Certificate Principal Balance
of any Class of Certificates shall be to the Certificate Principal Balance of
such Class prior to the allocation of Extraordinary Trust Fund Expenses and
Realized Losses, in each case allocated to such Class of Certificates, on such
Distribution Date pursuant to Section 4.04.
(b) (i) On each Distribution Date, the aggregate distributions
of principal made on such date in respect of the Subordinate Certificates
pursuant to Section 4.01(a)(1)(iv) above shall be applied among the various
Classes thereof, in the order of priority from the Class of Subordinate
Certificates with the lowest numerical designation to the Class of Subordinate
Certificates with the highest numerical designation, in each case to the extent
of remaining available funds up to the amount allocable to such Class for such
Distribution Date and in each case until the aggregate Certificate Principal
Balance of each such Class is reduced to zero, in an amount with respect to each
such Class equal to the sum of (X) the related Class B Percentage of the amounts
described in clauses (i) through (v) of clause (a) of the definition of
Subordinate
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Principal Distribution Amount, (Y) the portion of the amounts described in
clauses (b), (c) and (e) of the definition of Subordinate Principal Distribution
Amount allocable to such Class pursuant to Section 4.01(b)(ii) below and (Z) the
excess, if any, of the amount required to be distributed to such Class pursuant
to this Section 4.01(b)(i) for the immediately preceding Distribution Date, over
the aggregate distributions of principal made in respect of such Class of
Certificates on such immediately preceding Distribution Date pursuant to Section
4.01 to the extent that any such excess is not attributable to Realized Losses
which were allocated to Subordinate Certificates with a lower priority pursuant
to Section 4.04.
(ii) On any Distribution Date, the portion of (a) all net
Liquidation Proceeds and Insurance Proceeds with respect to any Mortgage Loans
that were the subject of a Final Recovery Determination in the related
Prepayment Period and (b) all Principal Prepayments received in respect of the
Mortgage Loans in the related Prepayment Period, allocable to principal and not
included in the Senior Principal Distribution Amount, will be allocated on a PRO
RATA basis among the following Classes of Subordinate Certificates (each, an
"Eligible Class") in proportion to the respective outstanding Certificate
Principal Balances thereof: (i) the Class B-1 Certificates, (ii) the Class B-2
Certificates, if on such Distribution Date the aggregate percentage interest in
the Trust Fund evidenced by the Class B-2 Certificates, the Class B-3
Certificates, the Class B-4 Certificates, the Class B-5 Certificates and the
Class B-6 Certificates equals or exceeds 1.55% before giving effect to
distributions on such Distribution Date, (iii) the Class B-3 Certificates, if on
such Distribution Date the aggregate percentage interest in the Trust Fund
evidenced by the Class B-3 Certificates, the Class B-4 Certificates, the Class
B-5 Certificates and the Class B-6 Certificates equals or exceeds 0.95% before
giving effect to distributions on such Distribution Date, (iv) the Class B-4
Certificates, if on such Distribution Date the aggregate percentage interest in
the Trust Fund evidenced by the Class B-4 Certificates, the Class B-5
Certificates and the Class B-6 Certificates equals or exceeds 0.60% before
giving effect to distributions on such Distribution Date, (v) the Class B-5
Certificates, if on such Distribution Date the aggregate percentage interest in
the Trust Fund evidenced by the Class B-5 Certificates and the Class B-6
Certificates equals or exceeds 0.40% before giving effect to distributions on
such Distribution Date and (vi) the Class B-6 Certificates, if on such
Distribution Date the percentage interest in the Trust Fund evidenced by the
Class B-6 Certificates equals or exceeds 0.25% before giving effect to
distributions on such Distribution Date. Notwithstanding the foregoing, if the
application of the foregoing on any Distribution Date as provided in Section
4.01 would result in a distribution in respect of principal to any Class or
Classes of Subordinate Certificates in an amount greater than the remaining
Certificate Principal Balance thereof (any such Class, a "Maturing Class") then:
(a) the amount to be allocated to each Maturing Class shall be reduced to a
level that, when applied as described above, would exactly reduce the
Certificate Principal Balance of such Class to zero and (b) the total amount of
the reductions pursuant to clause (a) above in the amount to be allocated to the
Maturing Class or Classes shall be allocated among the remaining Eligible
Classes on a PRO RATA basis in proportion to the respective outstanding
Certificate Principal Balances thereof prior to the allocation thereto of any of
the amounts described in the preceding sentence. Furthermore, if a Class of
Class B Certificates is not an Eligible Class, any amounts allocable to
principal and distributable pursuant to this Section 4.01(b)(ii) will be
distributed among the Class B Certificates that are Eligible Classes in the
manner set forth above.
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(c) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated PRO RATA among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date will be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section 4.01(e) or
Section 9.01 respecting the final distribution on such Class), based on the
aggregate Percentage Interest represented by their respective Certificates, and
shall be made by wire transfer of immediately available funds to the account of
any such Holder at a bank or other entity having appropriate facilities
therefor, if such Holder shall have so notified the Trust Administrator in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and with respect to any Class of Certificates other
than the Residual Certificates is the registered owner of Certificates having an
initial aggregate Certificate Principal Balance that is in excess of the lesser
of (i) $5,000,000 or (ii) two-thirds of the initial Certificate Principal
Balance of such Class of Certificates, or otherwise by check mailed by first
class mail to the address of such Holder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the Corporate Trust Office
or such other location specified in the notice to Certificateholders of such
final distribution.
Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Trust
Administrator, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(d) The rights of the Certificateholders to receive
distributions in respect of the Certificates, and all interests of the
Certificateholders in such distributions, shall be as set forth in this
Agreement. None of the Holders of any Class of Certificates, the Depositor, the
Trust Administrator, the Trustee or the Master Servicer shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(e) Except as otherwise provided in Section 9.01, whenever the
Trust Administrator expects that the final distribution with respect to any
Class of Certificates will be made on the next Distribution Date, the Trust
Administrator shall, no later than five days after the related Determination
Date, mail on such date to each Holder of such Class of Certificates a notice to
the effect that:
(i) the Trust Administrator expects that the final
distribution with respect to such Class of Certificates will be made on
such Distribution Date, but only upon presentation and surrender of
such Certificates at the office of the Trust Administrator therein
specified, and
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(ii) no interest shall accrue on such Certificates from and
after the end of the related Interest Accrual Period.
(iii) any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the
failure of such Holder or Holders to tender their Certificates shall,
on such date, be set aside and held in trust by the Trust Administrator
and credited to the account of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant
to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice,
the Trust Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect
thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the
Trust Administrator shall, directly or through an agent, mail a final
notice to remaining non-tendering Certificateholders concerning
surrender of their Certificates and shall continue to hold any
remaining funds for the benefit of non-tendering Certificateholders.
The costs and expenses of maintaining the funds in trust and of
contacting such Certificateholders shall be paid out of the assets
remaining in such trust fund. If within one year after the final notice
any such Certificates shall not have been surrendered for cancellation,
the Trust Administrator shall pay to the Class R Certificateholders all
such amounts, and all rights of non-tendering Certificateholders in or
to such amounts shall thereupon cease. No interest shall accrue or be
payable to any Certificateholder on any amount held in trust by the
Trust Administrator as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance
with this Section 4.01(e).
SECTION 4.02 Statements to Certificateholders.
On each Distribution Date, based, as applicable, on
information provided to it by the Master Servicer, the Trust Administrator shall
prepare and make available to each Holder of the Regular Certificates, the
Master Servicer, the Trustee and the Rating Agencies, a statement as to the
distributions to be made on such Distribution Date containing the following
information:
(i) the amount of the distribution made on such Distribution
Date to the Holders of Certificates of each such Class allocable to
principal;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of Certificates of each such Class allocable to
interest;
(iii) the aggregate amount of servicing compensation received
by the Master Servicer during the related Due Period and such other
customary information as the Trust Administrator deems necessary or
desirable, or which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of P&I Advances for each Loan Group
for such Distribution Date;
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(v) the aggregate Stated Principal Balance of the Mortgage
Loans and any REO Properties in each Loan Group at the close of
business on such Distribution Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans in each Loan Group as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of
Mortgage Loans in each Loan Group that are (a) delinquent 30 to 59
days, (b) delinquent 60 to 89 days, (c) delinquent 90 or more days in
each case, as of the last day of the preceding calendar month, (d) as
to which foreclosure proceedings have been commenced and (e) with
respect to which the related Mortgagor has filed for protection under
applicable bankruptcy laws, with respect to whom bankruptcy proceedings
are pending or with respect to whom bankruptcy protection is in force;
(viii) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number of such
Mortgage Loan, the unpaid principal balance and the Stated Principal
Balance of such Mortgage Loan as of the date it became an REO Property;
(ix) the book value and the Stated Principal Balance of any
REO Property as of the close of business on the last Business Day of
the calendar month preceding the Distribution Date;
(x) the aggregate amount of Principal Prepayments made during
the related Prepayment Period;
(xi) the aggregate amount of Realized Losses with respect to
the Mortgage Loans in each Loan Group incurred during the related
Prepayment Period (or, in the case of Bankruptcy Losses allocable to
interest, during the related Due Period), separately identifying
whether such Realized Losses constituted Fraud Losses, Special Hazard
Losses or Bankruptcy Losses;
(xii) the aggregate amount of Extraordinary Trust Fund
Expenses withdrawn from the Collection Account or the Distribution
Account for such Distribution Date;
(xiii) the aggregate Certificate Principal Balance of each
such Class of Certificates, after giving effect to the distributions,
and allocations of Realized Losses and Extraordinary Trust Fund
Expenses, made on such Distribution Date, separately identifying any
reduction thereof due to allocations of Realized Losses and
Extraordinary Trust Fund Expenses;
(xiv) the Certificate Factor for each such Class of
Certificates applicable to such Distribution Date;
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(xv) the Interest Distribution Amount in respect of each such
Class of Certificates for such Distribution Date (separately
identifying any reductions in the case of Subordinate Certificates
resulting from the allocation of Realized Losses allocable to interest
and Extraordinary Trust Fund Expenses on such Distribution Date) and
the respective portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such Distribution
Date;
(xvi) the aggregate amount of any Prepayment Interest
Shortfalls for such Distribution Date, to the extent not covered by
Compensating Interest paid by the Master Servicer pursuant to Section
3.24;
(xvii) the aggregate amount of Relief Act Interest Shortfalls
for such Distribution Date;
(xviii) the then-applicable Bankruptcy Amount, Fraud Loss
Amount, and Special Hazard Amount;
(xix) [reserved];
(xx) with respect to any Mortgage Loan as to which foreclosure
proceedings have been concluded, the loan number and unpaid principal
balance of such Mortgage Loan as of the date of such conclusion of
foreclosure proceedings; and
(xxi) with respect to Mortgage Loans as to which a Final
Liquidation has occurred, the number of Mortgage Loans, the unpaid
principal balance of such Mortgage Loans as of the date of such Final
Liquidation and the amount of proceeds (including Liquidation Proceeds
and Insurance Proceeds) collected in respect of such Mortgage Loans.
In the case of information furnished pursuant to subclauses
(i) through (iii) above, the amounts shall be expressed as a dollar amount per
Single Certificate of the relevant Class.
The Trust Administrator will make the monthly statements
described above (and, at its option, any additional files containing the same
information in an alternative format) available each month to
Certificateholders, the Rating Agencies and the parties to this Agreement via
the Trust Administrator's internet website. The Trust Administrator's internet
website shall initially be located at "▇▇▇.▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇." Assistance in
using the website can be obtained by calling the Trust Administrator's customer
service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above
distribution options are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The Trust
Administrator shall have the right to change the way monthly statements are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trust Administrator shall provide timely
and adequate notification to all the parties regarding any such changes.
Within a reasonable period of time after the end of each
calendar year, the Trust Administrator shall forward to each Person who at any
time during the calendar year was a
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Holder of a Regular Certificate a statement containing the information set forth
in subclauses (i) through (iii) above, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trust Administrator pursuant to any requirements of the Code as
from time to time are in force.
Within a reasonable period of time after the end of each
calendar year, the Trust Administrator shall forward to each Person who at any
time during the calendar year was a Holder of a Residual Certificate a statement
setting forth the amount, if any, actually distributed with respect to the
Residual Certificates, as appropriate, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
prepared by the Trust Administrator and furnished to such Holders pursuant to
the rules and regulations of the Code as are in force from time to time.
Upon request, the Trust Administrator shall forward to each
Certificateholder, during the term of this Agreement, such periodic, special, or
other reports or information, whether or not provided for herein, as shall be
reasonable with respect to such Certificateholder, or otherwise with respect to
the purposes of this Agreement, all such reports or information to be provided
at the expense of such Certificateholder in accordance with such reasonable and
explicit instructions and directions as such Certificateholder may provide. For
purposes of this Section 4.02, the Trust Administrator's duties are limited to
the extent that the Trust Administrator receives timely reports as required from
the Master Servicer and the Trustee's duties are limited to the extent that the
Trustee receives timely reports as required from the Trust Administrator.
On each Distribution Date, the Trust Administrator shall
provide Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for
each class of Certificates as of such Distribution Date, using a format and
media mutually acceptable to the Trust Administrator and Bloomberg.
SECTION 4.03 Remittance Reports; P&I Advances.
(a) On the Business Day following the Determination Date, the
Master Servicer shall deliver to the Trust Administrator by telecopy (or by such
other means as the Master Servicer, the Trust Administrator and the Trustee may
agree from time to time) a Remittance Report with respect to the related
Distribution Date. Such Remittance Report will include (i) the amount of P&I
Advances to be made by the Master Servicer in respect of the related
Distribution Date, the aggregate amount of P&I Advances outstanding after giving
effect to such P&I Advances, and the aggregate amount of Nonrecoverable P&I
Advances in respect of such Distribution Date and (ii) such other information
with respect to the Mortgage Loans as the Trust Administrator may reasonably
require to perform the calculations necessary to make the distributions
contemplated by Section 4.01 and to prepare the statements to Certificateholders
contemplated by Section 4.02; provided, however, that if the Master Servicer is
not the Trust Administrator, the Master Servicer will forward to the successor
trust administrator the
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information set forth in clause (i) above on the next Business Day following the
related Determination Date and the information set forth in clause (ii) above on
the fifth Business Day following the last day of the related calendar month. The
Trustee and the Trust Administrator shall not be responsible to recompute,
recalculate or verify any information provided to it by the Master Servicer.
(b) The amount of P&I Advances to be made by the Master
Servicer for any Distribution Date shall equal, subject to Section 4.03(d), the
sum of (i) the aggregate amount of Monthly Payments (with each interest portion
thereof net of the related Servicing Fee), due on the related Due Date in
respect of the Mortgage Loans (other than with respect to any Balloon Loan with
a delinquent Balloon Payment as described in clause (iii) below), which Monthly
Payments were delinquent as of the close of business on the related
Determination Date, (ii) with respect to each REO Property (other than with
respect to any REO Property relating to a Balloon Loan with a delinquent Balloon
Payment as described in clause (iv) below), which REO Property was acquired
during or prior to the related Due Period and as to which REO Property an REO
Disposition did not occur during the related Due Period, an amount equal to the
excess, if any, of the REO Imputed Interest on such REO Property for the most
recently ended calendar month, over the net income from such REO Property
transferred to the Distribution Account pursuant to Section 3.23 for
distribution on such Distribution Date, (iii) with respect to each Balloon Loan
with a delinquent Balloon Payment, an amount equal to the assumed monthly
principal and interest payment (with each interest portion thereof net of the
related Servicing Fee) that would have been due on the related Due Date based on
the original principal amortization schedule for such Balloon Loan assuming such
Mortgage Loan was not a Balloon Loan and (iv) with respect to each REO Property
relating to a Balloon Loan with a delinquent Balloon Payment, which REO Property
was acquired during or prior to the related Prepayment Period and as to which
REO Property an REO Disposition did not occur during the related Prepayment
Period, an amount equal to the excess, if any, of the assumed monthly principal
and interest payment (with each interest portion thereof net of the related
Servicing Fee) that would have been due on the related Due Date based on the
original principal amortization schedule for the related Balloon Loan assuming
such Mortgage Loan was not a Balloon Loan, over the net income from such REO
Property transferred to the Distribution Account pursuant to Section 3.23 for
distribution on such Distribution Date. The Master Servicer shall not be
required to make any P&I Advance to cover any Relief Act Interest Shortfall on
any Mortgage Loan.
On or before 3:00 p.m. New York time on the Master Servicer
Remittance Date, the Master Servicer shall remit in immediately available funds
to the Trust Administrator for deposit in the Distribution Account an amount
equal to the aggregate amount of P&I Advances, if any, to be made in respect of
the Mortgage Loans and REO Properties for the related Distribution Date either
(i) from its own funds or (ii) from the Collection Account, to the extent of
funds held therein for future distribution (in which case, it will cause to be
made an appropriate entry in the records of Collection Account that amounts held
for future distribution have been, as permitted by this Section 4.03, used by
the Master Servicer in discharge of any such P&I Advance) or (iii) in the form
of any combination of (i) and (ii) aggregating the total amount of P&I Advances
to be made by the Master Servicer with respect to the Mortgage Loans and REO
Properties. Any amounts held for future distribution and so used shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the
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Collection Account on or before any future Master Servicer Remittance Date to
the extent that the Available Distribution Amount for the related Distribution
Date (determined without regard to P&I Advances to be made on the Master
Servicer Remittance Date) shall be less than the total amount that would be
distributed to the Classes of Certificateholders pursuant to Section 4.01 on
such Distribution Date if such amounts held for future distributions had not
been so used to make P&I Advances. The Trust Administrator will provide notice
to the Master Servicer by telecopy by the close of business on the Master
Servicer Remittance Date in the event that the amount remitted by the Master
Servicer to the Trust Administrator on such Master Servicer Remittance Date is
less than the P&I Advances required to be made by the Master Servicer for the
related Distribution Date.
(c) The obligation of the Master Servicer to make such P&I
Advances is mandatory, notwithstanding any other provision of this Agreement but
subject to (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from REMIC I pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder by the Master Servicer if such
P&I Advance would, if made, be deemed by the Master Servicer to constitute a
Nonrecoverable P&I Advance. The determination by the Master Servicer that it has
made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officers' Certificate of the Master Servicer delivered to the Depositor, the
Trust Administrator and the Trustee.
SECTION 4.04 Allocation of Extraordinary Trust Fund Expenses
and Realized Losses.
(a) Prior to each Distribution Date, the Master Servicer shall
determine as to each Mortgage Loan and REO Property: (i) the total amount of
Realized Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Prepayment Period; (ii) whether and the
extent to which such Realized Losses constituted Fraud Losses or Special Hazard
Losses; and (iii) the respective portions of such Realized Losses allocable to
interest and allocable to principal. Prior to each Distribution Date, the Master
Servicer shall also determine as to each Mortgage Loan: (A) the total amount of
Realized Losses, if any, incurred in connection with any Deficient Valuations
made during the related Prepayment Period; and (B) the total amount of Realized
Losses, if any, incurred in connection with Debt Service Reductions in respect
of Monthly Payments due during the related Due Period. The information described
in the two preceding sentences that is to be supplied by the Master Servicer
shall be evidenced by an Officers' Certificate delivered to the Trust
Administrator and the Trustee by the Master Servicer prior to the Determination
Date immediately following the end of (x) in the case of Bankruptcy Losses
allocable to interest, the Due Period during which any such Realized Loss was
incurred, and (y) in the case of all other Realized Losses, the Prepayment
Period during which any such Realized Loss was incurred.
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(b) All Realized Losses on the Mortgage Loans (other than
Excess Losses) shall be allocated by the Trust Administrator on each
Distribution Date as follows: first, to the Class B-6 Certificates; second, to
the Class B-5 Certificates; third, to the Class B-4 Certificates; fourth, to the
Class B-3 Certificates; fifth, to the Class B-2 Certificates; and sixth, to the
Class B-1 Certificates, in each case until the Certificate Principal Balance
thereof has been reduced to zero. Thereafter, upon the reduction of the
Certificate Principal Balances of the Subordinate Certificates to zero, such
Realized Losses will be allocated on any Distribution Date first, to any amounts
on deposit in the Excess Diverted Interest Reserve Account and second, to the
Class A-1 Certificates, if the Realized Loss is on a Group I Mortgage Loan, to
the Class A-2 Certificates, if the Realized Loss is on a Group II Mortgage Loan,
to the Class A-3 Certificates, if the Realized Loss is on a Group III Mortgage
Loan, to the Class A-4 Certificates, if the Realized Loss is on a Group IV
Mortgage Loan, to the Class A-5 Certificates, if the Realized Loss is on a Group
V Mortgage Loan and to the Class A-6 Certificates, if the Realized Loss is on a
Group VI Mortgage Loan. If a Realized Loss is allocated to the Excess Diverted
Interest Reserve Account, the Trust Administrator shall pay the Group I Excess
Diverted Interest Reserve Deposit, the Group II Excess Diverted Interest Reserve
Deposit, the Group III Excess Diverted Interest Reserve Deposit, the Group IV
Excess Diverted Interest Reserve Deposit, the Group V Excess Diverted Interest
Reserve Deposit or the Group VI Excess Diverted Interest Reserve Deposit, as
applicable, to the Available Distribution Amount to which the Realized Loss
relates.
Excess Losses shall be allocated on any Distribution Date by
allocating (i) the related Senior Percentage of the Excess Loss to the Class A-1
Certificates (if the Realized Loss is on a Group I Mortgage Loan), to the Class
A-2 Certificates (if the Realized Loss is on a Group II Mortgage Loan), to the
Class A-3 Certificates (if the Realized Loss is on a Group III Mortgage Loan),
to the Class A-4 Certificates (if the Realized Loss is on a Group IV Mortgage
Loan), to the Class A-5 Certificates (if the Realized Loss is on a Group V
Mortgage Loan) and to the Class A-6 Certificates (if the Realized Loss is on a
Group VI Mortgage Loan) and (ii) and the Group I Subordinate Percentage, the
Group II Subordinate Percentage, the Group III Subordinate Percentage, the Group
IV Subordinate Percentage, the Group V Subordinate Percentage or the Group VI
Subordinate Percentage, as applicable, of the Excess Loss to the Subordinate
Certificates.
Extraordinary Trust Fund Expenses shall be allocated on any
Distribution Date as follows: first, to the Class B-6 Certificates; second, to
the Class B-5 Certificates; third, to the Class B-4 Certificates; fourth, to the
Class B-3 Certificates; fifth, to the Class B-2 Certificates; and sixth, to the
Class B-1 Certificates, in each case until the Certificate Principal Balance of
the related Class has been reduced to zero. Thereafter, the Extraordinary Trust
Fund Expenses will be allocated on any Distribution Date among the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-4 Certificates, the Class A-5 Certificates or the Class A-6 Certificates, as
applicable, on a PRO RATA basis.
As used herein, an allocation of a Realized Loss or
Extraordinary Trust Fund Expense on a "PRO RATA basis" among two or more
specified Classes of Certificates means an allocation on a PRO RATA basis, among
the various Classes so specified, to each such Class of Certificates on the
basis of their then outstanding Certificate Principal Balances prior to giving
effect to distributions to be made on such Distribution Date. All Realized
Losses and all other
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losses allocated to a Class of Certificates hereunder will be allocated among
the Certificates of such Class in proportion to the Percentage Interests
evidenced thereby.
(c) Notwithstanding anything to the contrary herein, in no
event shall the Certificate Principal Balance of a Class A Certificate be
reduced more than once in respect of any particular amount both (i) allocable to
such Certificate in respect of Realized Losses or Extraordinary Trust Fund
Expenses pursuant to Section 4.04 and (ii) payable to the Holder of such
Certificate pursuant to Section 4.01(a) as a portion of the Senior Principal
Distribution Amount.
SECTION 4.05 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the
Trust Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Trust Administrator reasonably believes are applicable under the Code.
The consent of Certificateholders shall not be required for such withholding. In
the event the Trust Administrator does withhold any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Trust Administrator shall
indicate the amount withheld to such Certificateholders.
SECTION 4.06 Distributions on and Allocations of Realized
Losses to the REMIC I Regular Interests.
Distributions of principal shall be deemed to be made to the
REMIC I Regular Interests, in each case from the related Loan Group, first, to
REMIC I Regular Interest LT-1SUB, REMIC I Regular Interest LT-2SUB, REMIC I
Regular Interest LT-3SUB, REMIC I Regular Interest LT-4SUB, REMIC I Regular
Interest LT-5SUB and REMIC I Regular Interest LT-6SUB, as applicable, so that
the Uncertificated Balance of each such REMIC I Regular Interest is equal to
0.01% of the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in the related Loan Group over (y) the current Certificate
Principal Balance of the Class A Certificates in such Loan Group (except that if
any such excess is a larger number than in the preceding distribution period,
the least amount of principal shall be distributed to such REMIC I Regular
Interests such that the REMIC I Subordinated Balance Ratio is maintained); and
second, any remaining principal in each Loan Group to REMIC I Regular Interest
LT-ZZ. Realized Losses from each Loan Group shall be applied after all
distributions have been made on each Distribution Date, first, to REMIC I
Regular Interest LT-1SUB, REMIC I Regular Interest LT-2SUB, REMIC I Regular
Interest LT-3SUB, REMIC I Regular Interest LT-4SUB, REMIC I Regular Interest
LT-5SUB and REMIC I Regular Interest LT-6SUB, as applicable, so that the
Uncertificated Balance of each such REMIC I Regular Interest is equal to 0.01%
of the excess of (x) the aggregate Scheduled Principal Balance of the Mortgage
Loans in the related Loan Group over (y) the current Certificate Principal
Balance of the Class A Certificate in the related Loan Group (except that if any
such excess is a larger number than in the preceding distribution period, the
least amount of Realized Losses shall be applied to such REMIC I Regular
Interests such that the REMIC I Subordinated Balance Ratio is maintained); and
second, any remaining Realized Losses from each Loan Group shall be allocated to
REMIC I Regular Interest LT-ZZ.
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SECTION 4.07 Commission Reporting.
(a) The Trust Administrator and the Master Servicer shall
reasonably cooperate with the Depositor in connection with satisfying the
reporting requirements under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). The Trust Administrator shall prepare on behalf of the
Trust Fund any Forms 8-K and 10-K customary for similar securities as required
by the Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission thereunder, and the Depositor shall sign (or shall cause another
entity acceptable to the Securities and Exchange Commission to sign) and the
Trust Administrator shall file (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) such forms on behalf of the
Depositor (or such other entity). The Depositor hereby grants to the Trust
Administrator a limited power of attorney to execute any Form 8-K and file each
such document on behalf of the Depositor. Such power of attorney shall continue
until the earlier of (i) receipt by the Trust Administrator from the Depositor
of written termination of such power of attorney and (ii) the termination of the
Trust. Notwithstanding anything herein to the contrary, the Depositor, and not
the Trust Administrator, shall be responsible for executing each Form 10-K filed
on behalf of the Trust.
(b) Each Form 8-K shall be filed by the Trust Administrator
within 15 days after each Distribution Date, with a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Subject to
Section 4.07(e), prior to March 30th of each year (or such earlier date as may
be required by the Exchange Act and the Rules and Regulations of the Securities
and Exchange Commission), the Trust Administrator shall file a Form 10-K, in
substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. The Trust Administrator shall prepare such
Form 10-K and provide the Depositor with such Form 10-K not later than March
20th of each year, subject to Section 4.07(e). Following its receipt thereof,
the Depositor shall execute such Form 10-K and provide the original of such Form
10-K to the Trust Administrator not later than March 25th (or, if the applicable
March 25th is not a Business Day, the next succeeding Business Day) of each
year; provided, however, that if the filing of such Form 10-K shall be required
to occur on a date earlier than March 30th of each year as may be required by
the Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission, then the time periods for preparation and execution of such Form
10-K set forth in this sentence shall be adjusted accordingly). Such Form 10-K
when filed shall include as exhibits the Master Servicer's annual statement of
compliance described under Section 3.20 and the accountant's report described
under Section 3.21, in each case to the extent they have been timely delivered
to the Trust Administrator. If they are not so timely delivered, the Trust
Administrator shall file an amended Form 10-K including such documents as
exhibits reasonably promptly after they are delivered to the Trust
Administrator. The Trust Administrator shall have no liability with respect to
any failure to properly prepare or file such periodic reports resulting from or
relating to the Trust Administrator's inability or failure to obtain any
information not resulting from its own negligence or willful misconduct. The
Form 10-K shall also include a certification in the form attached hereto as
Exhibit J-1 (the "Certification"), which shall be signed by the senior officer
of the Depositor in charge of securitization.
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(c) In addition, (x) the Trust Administrator shall sign a
certification (in the form attached hereto as Exhibit J-2) for the benefit of
the Depositor and its officers, directors and Affiliates regarding certain
aspects of the Certification (the "Trust Administrator Certification");
provided, however, that the Trust Administrator shall not undertake an analysis
of the accountant's report attached as an exhibit to the Form 10-K, and (y) the
Master Servicer shall sign a certification (in the form attached hereto as
Exhibit J-3) for the benefit of the Depositor, the Trust Administrator and their
officers, directors and Affiliates regarding certain aspects of the
Certification (the "Master Servicer Certification"). The Master Servicer
Certification shall be delivered to the Depositor and the Trust Administrator no
later than March 15th or if such day is not a Business Day, the preceding
Business Day, each year (subject to Section 4.07(e) hereof). The Trust
Administrator Certification shall be delivered to the Depositor no later than
March 15th or if such day is not a Business Day, the preceding Business Day,
each year (subject to Section 4.07(e) hereof).
In addition, (A) the Trust Administrator shall indemnify and
hold harmless the Depositor and its officers, directors and Affiliates from and
against any actual losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of third party claims based upon a breach of the Trust
Administrator's obligations under this Section 4.07 or any material misstatement
or omission contained in the Trust Administrator Certification, and (B) the
Master Servicer shall indemnify and hold harmless the Depositor, the Trust
Administrator and their respective officers, directors and Affiliates from and
against any actual losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses that such Person may sustain arising out of third party claims based
upon a breach of the Master Servicer's obligations under this Section 4.07(c),
any material misstatement or omission contained in the Master Servicer's
Certification or any information correctly derived by the Trust Administrator
and included in a Form 8-K or Form 10-K from information provided to the Trust
Administrator by the Master Servicer under this Agreement. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then (i) the Trust Administrator agrees that it shall
contribute to the amount paid or payable by the Depositor as a result of the
losses, claims, damages or liabilities of the Depositor in such proportion as is
appropriate to reflect the relative fault of the Depositor on the one hand and
the Trust Administrator on the other and (ii) the Master Servicer agrees that it
shall contribute to the amount paid or payable by the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such proportion
as is appropriate to reflect the relative fault of the Depositor on the one hand
and the Master Servicer on the other.
(d) Upon any filing with the Securities and Exchange
Commission, the Trust Administrator shall promptly deliver to the Depositor a
copy of any executed report, statement or information.
(e) Prior to January 30th of the first year in which the Trust
Administrator is able to do so under applicable law, the Trust Administrator
shall file a Form 15 Suspension Notification with respect to the Trust Fund.
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(f) To the extent that, following the Closing Date, the
Depositor certifies that reports and certifications differing from those
required under this Section 4.07 comply with the reporting requirements under
the Exchange Act, the Trust Administrator and the Master Servicer hereby agree
that they will reasonably cooperate to amend the provisions of this Section 4.07
in order to comply with such amended reporting requirements and such amendment
of this Section 4.07; provided, however, that the Trust Administrator shall not
be responsible for executing any Form 10-K or the Certification. Any such
amendment may result in the reduction of the reports filed by the Depositor
under the Exchange Act.
SECTION 4.08 Excess Diverted Interest Reserve Account
(a) No later than the Closing Date, the Trust Administrator
shall establish and maintain with itself, a separate, segregated trust account
titled, "Excess Diverted Interest Reserve Account, Citibank, N.A., as Trust
Administrator for U.S. Bank National Association, as Trustee, in trust for the
registered holders of Citigroup Mortgage Loan Trust, Series 2004-UST1, Mortgage
Pass-Through Certificates."
(b) On each Distribution Date as to which there is an Excess
Diverted Interest Reserve Amount payable to a Class of Class A Certificates, the
Trust Administrator shall deposit into the Excess Diverted Interest Reserve
Account the amount of such Excess Diverted Interest Reserve Amount, rather than
distributing such amounts to the Class R Certificateholders. On each such
Distribution Date, the Trust Administrator shall hold all such amounts for the
benefit of the Holders of the Class A Certificates, and will distribute such
amounts to the Holders of the Class A Certificates, in the amounts and
priorities set forth in Section 4.01.
(c) For federal and state income tax purposes, the Excess
Diverted Interest Reserve Account will be a "qualified reserve fund" within the
meaning of Code Section 860(G)(7)(B).
(d) At the written direction of the Holders of a majority in
Percentage Interest in the Class R Certificates, the Trust Administrator shall
direct any depository institution maintaining the Excess Diverted Interest
Reserve Account to invest the funds in such account in one or more Permitted
Investments, selected in writing by the Holders of a majority in Percentage
Interest in the Class R Certificates, 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 Trust
Administrator or an Affiliate manages or advises such investment, and (ii) no
later than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if the Trust Administrator or an Affiliate
manages or advises such investment. Interest earned on such investment shall be
deposited into the Excess Diverted Interest Reserve Account.
(e) For federal tax return and information reporting, the
right of the Holders of the Class A Certificates to receive payments from the
Excess Diverted Interest Reserve Account in respect of any Excess Diverted
Interest Reserve Amount shall be assigned a value of zero.
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(f) On the final Distribution Date, all Excess Diverted
Interest Reserve Amounts remaining in the Excess Diverted Interest Reserve
Account, if any, shall be paid to the Holders of the Class R Certificates.
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ARTICLE V.
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates in the aggregate will represent the
entire beneficial ownership interest in the Mortgage Loans and all other assets
included in the Trust Fund. At the Closing Date, the aggregate Certificate
Principal Balance of the Certificates will equal the aggregate Stated Principal
Balance of the Mortgage Loans.
The Certificates will be substantially in the forms annexed
hereto as Exhibits A-1 through A-16. The Certificates of each Class will be
issuable in registered form only, in denominations of authorized Percentage
Interests as described in the definition thereof. Each Certificate will share
ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed,
authenticated and delivered by the Trust Administrator to or upon the order of
the Depositor. The Certificates shall be executed and attested by manual or
facsimile signature on behalf of the Trust Administrator by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trust Administrator
shall bind the Trust Administrator, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided herein
executed by the Trust Administrator by manual signature, and such certificate of
authentication shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) The Class A Certificates shall initially be issued as one
or more Certificates held by the Book- Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration of
such Certificates may not be transferred by the Trust Administrator except to
another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book- Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Trust Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the
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agreement that it has with the Depository authorizing it to act as such. The
Book-Entry Custodian may, and if it is no longer qualified to act as such, the
Book-Entry Custodian shall, appoint, by a written instrument delivered to the
Depositor, the Master Servicer, the Trust Administrator, the Trustee (if the
Trust Administrator is not the Book-Entry Custodian) and any other transfer
agent (including the Depository or any successor Depository) to act as
Book-Entry Custodian under such conditions as the predecessor Book-Entry
Custodian and the Depository or any successor Depository may prescribe, provided
that the predecessor Book-Entry Custodian shall not be relieved of any of its
duties or responsibilities by reason of any such appointment of other than the
Depository. If the Trust Administrator resigns or is removed in accordance with
the terms hereof, the successor trust administrator or, if it so elects, the
Depository shall immediately succeed to its predecessor's duties as Book-Entry
Custodian. The Depositor shall have the right to inspect, and to obtain copies
of, any Certificates held as Book-Entry Certificates by the Book-Entry
Custodian.
The Trustee, the Trust Administrator, the Master Servicer and
the Depositor may for all purposes (including the making of payments due on the
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trust Administrator may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trust Administrator in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (B) the Depositor is unable to locate a
qualified successor or (ii) after the occurrence of a Master Servicer Event of
Default, Certificate Owners representing in the aggregate not less than 51% of
the Ownership Interests of the Book-Entry Certificates advise the Trust
Administrator through the Depository, in writing, that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trust Administrator shall notify all Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trust Administrator of the Book- Entry Certificates
by the Book-Entry Custodian or the Depository, as applicable, accompanied by
registration instructions from the Depository for registration of transfer, the
Trust Administrator shall issue the Definitive Certificates. Such Definitive
Certificates will be issued in minimum denominations of $100,000, except that
any beneficial ownership that was represented by a Book-Entry Certificate in an
amount less than $100,000 immediately prior to the issuance of a Definitive
Certificate shall be issued in a minimum denomination equal to the amount
represented by such Book-Entry Certificate. None of the Depositor, the Master
Servicer, the Trust Administrator nor the Trustee shall be liable for any delay
in the delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
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Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trust Administrator, to the extent applicable with respect to such
Definitive Certificates, and the Trust Administrator shall recognize the Holders
of the Definitive Certificates as Certificateholders hereunder.
SECTION 5.02 Registration of Transfer and Exchange of
Certificates.
(a) The Trust Administrator shall cause to be kept at one of
the offices or agencies to be appointed by the Trust Administrator in accordance
with the provisions of Section 8.12 a Certificate Register for the Certificates
in which, subject to such reasonable regulations as it may prescribe, the Trust
Administrator shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided.
(b) No transfer of any Subordinate Certificate or Residual
Certificate (the "Private Certificates") shall be made unless that transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and an effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. In the
event that such a transfer of a Private Certificate is to be made without
registration or qualification (other than in connection with the initial
transfer of any such Certificate by the Depositor), the Trust Administrator
shall require, receipt of: (i) if such transfer is purportedly being made in
reliance upon Rule 144A under the 1933 Act, written certifications from the
Certificateholder desiring to effect the transfer and from such
Certificateholder's prospective transferee, substantially in the forms attached
hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the
Depositor, the Trustee, the Trust Administrator, the Master Servicer, in its
capacity as such, or the Trust Fund), together with copies of the written
certification(s) of the Certificateholder desiring to effect the transfer and/or
such Certificateholder's prospective transferee upon which such Opinion of
Counsel is based, if any. Neither the Depositor nor the Trust Administrator is
obligated to register or qualify the Private Certificates under the 1933 Act or
any other securities laws or to take any action not otherwise required under
this Agreement to permit the transfer of such Certificates without registration
or qualification. Any Certificateholder desiring to effect the transfer of a
Private Certificate shall, and does hereby agree to, indemnify the Trustee, the
Trust Administrator, the Depositor and the Master Servicer against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(c) No transfer of a Private Certificate or any interest
therein shall be made to any Plan subject to ERISA or Section 4975 of the Code,
any Person acting, directly or indirectly, on behalf of any such Plan or any
Person acquiring such Certificates with "Plan Assets" of a Plan within the
meaning of the DOL Regulations ("Plan Assets"), as certified by such transferee
in the form of Exhibit G, unless the Trust Administrator is provided with an
Opinion of Counsel, which establishes to the satisfaction of the Depositor, the
Trustee, the Trust Administrator and the Master Servicer that the purchase of
such Certificates is permissible under applicable law, will not constitute or
result in any prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Depositor, the Master Servicer, the Trustee, the Trust
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Administrator or the Trust Fund to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator or the Trust Fund; provided, however, in the case of a Subordinate
Certificate which has been offered in an underwriting or placement which
qualifies under Prohibited Transaction Class Exemption ("PTCE") 2002-41, as
amended from time to time, each Person acquiring such a Subordinate Certificate
or any interest therein may be required instead to provide a certification, that
(i) it is not a Plan or investing with "Plan Assets", (ii) it has acquired and
is holding such certificate in reliance on PTE 2002-41, as amended from time to
time ("Underwriter's Exemption"), it understands that there are certain
conditions to the availability of the Underwriter's Exemption, including that
such certificate must be rated, at the time of purchase, not lower than "BBB-"
(or its equivalent) by S&P, Fitch or Moodys, and such certificate is so rated,
and it will represent that it is an "accredited investor" as defined in Rule
501(a)(1) or Regulation D issued under the 1933 Act and will obtain a
representation from any transferee that such transferee is an accredited
investor so long as it is required to obtain a representation regarding
compliance with the 1933 Act or (iii) (1) it is an insurance company, (2) the
source of funds used to acquire or hold the certificate or interest therein is
an "insurance company general account," as such term is defined in PTCE 95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.
Neither an Opinion of Counsel nor any certification (as provided above) will be
required in connection with the initial transfer of any such Certificate by the
Depositor (in which case, the Depositor shall have deemed to have represented
that such transferee is not a Plan or a Person investing Plan Assets) and the
Trust Administrator shall be entitled to conclusively rely upon a representation
(which, upon the request of the Trust Administrator, shall be a written
representation) from the Depositor of the status of such transferee.
If any Subordinate Certificate or Residual Certificate or any
interest therein is acquired or held in violation of the provisions of the
preceding two paragraphs, the next preceding permitted beneficial owner will be
treated as the beneficial owner of that Certificate retroactive to the date of
transfer to the purported beneficial owner. Any purported beneficial owner whose
acquisition or holding of any such Certificate or interest therein was effected
in violation of the provisions of the preceding two paragraphs shall indemnify
and hold harmless the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by those parties as a result of that
acquisition or holding.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trust Administrator
or its designee under clause (iii)(A) below to deliver payments to a Person
other than such Person and to negotiate the terms of any mandatory sale under
clause (iii)(B) below and to execute all instruments of Transfer and to do all
other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
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(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall promptly notify
the Trust Administrator of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trust Administrator shall require
delivery to it and shall not register the Transfer of any Residual Certificate
until its receipt of an affidavit and agreement (a "Transfer Affidavit and
Agreement"), in the form attached hereto as Exhibit F-2, from the proposed
Transferee, in form and substance satisfactory to the Trust Administrator,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted Transferee, that for so
long as it retains its Ownership Interest in a Residual Certificate, it will
endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a Responsible
Officer of the Trust Administrator who is assigned to this transaction has
actual knowledge that the proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to transfer its
Ownership Interest in a Residual Certificate and (y) not to transfer its
Ownership Interest unless it provides a transferor affidavit (a "Transferor
Affidavit"), in the form attached hereto as Exhibit F-2, to the Trust
Administrator stating that, among other things, it has no actual knowledge that
such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate, by purchasing an Ownership Interest in such Certificate,
agrees to give the Trust Administrator written notice that it is a "pass-through
interest holder" within the meaning of temporary Treasury regulation Section
1.67- 3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a
Residual Certificate, if it is, or is holding an Ownership Interest in a
Residual Certificate on behalf of, a "pass-through interest holder."
(ii) The Trust Administrator will register the Transfer of any
Residual Certificate only if it shall have received the Transfer
Affidavit and Agreement and all of such other documents as shall have
been reasonably required by the Trust Administrator as a condition to
such registration. In addition, no Transfer of a Residual Certificate
shall be made unless the Trust Administrator shall have received a
representation letter from the Transferee of such Certificate to the
effect that such Transferee is a Permitted Transferee.
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(iii) (A) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights as holder
thereof retroactive to the date of registration of such Transfer of
such Residual Certificate. The Trust Administrator shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.02(d) or
for making any payments due on such Certificate to the holder thereof
or for taking any other action with respect to such holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a holder of a
Residual Certificate in violation of the restrictions in this Section
5.02(d) and to the extent that the retroactive restoration of the
rights of the holder of such Residual Certificate as described in
clause (iii)(A) above shall be invalid, illegal or unenforceable, then
the Trust Administrator shall have the right, without notice to the
holder or any prior holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the Trust Administrator
on such terms as the Trust Administrator may choose. Such purported
Transferee shall promptly endorse and deliver each Residual Certificate
in accordance with the instructions of the Trust Administrator. Such
purchaser may be the Trust Administrator itself or any Affiliate of the
Trust Administrator. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Trust Administrator or
its Affiliates), expenses and taxes due, if any, will be remitted by
the Trust Administrator to such purported Transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be determined
in the sole discretion of the Trust Administrator, and the Trust
Administrator shall not be liable to any Person having an Ownership
Interest in a Residual Certificate as a result of its exercise of such
discretion.
(iv) The Trust Administrator on behalf of the Trustee shall
make available to the Internal Revenue Service and those Persons
specified by the REMIC Provisions all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization, including the information described in Treasury
regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to
the "excess inclusions" of such Residual Certificate and (B) as a
result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest
in a Residual Certificate having as among its record holders at any
time any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be accepted by the
Trust Administrator.
(v) The provisions of this Section 5.02(d) set forth prior to
this subsection (v) may be modified, added to or eliminated, provided
that there shall have been delivered to the Trust Administrator at the
expense of the party seeking to modify, add to or eliminate any such
provision the following:
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(A) written notification from the Rating Agencies to the
effect that the modification, addition to or elimination of such provisions will
not cause the Rating Agencies to downgrade its then-current ratings of any Class
of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trust Administrator, to the effect that such modification of, addition to
or elimination of such provisions will not cause any Trust REMIC to cease to
qualify as a REMIC and will not cause (x) any Trust REMIC to be subject to an
entity-level tax caused by the Transfer of any Residual Certificate to a Person
that is not a Permitted Transferee or (y) a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a Residual
Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the Trust
Administrator maintained for such purpose pursuant to Section 8.12, the Trust
Administrator shall execute, authenticate and deliver, in the name of the
designated Transferee or Transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Certificate may
be exchanged for other Certificates of the same Class with authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any office or agency of the Trust Administrator
maintained for such purpose pursuant to Section 8.12. Whenever any Certificates
are so surrendered for exchange the Trust Administrator shall execute,
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
transfer or exchange shall (if so required by the Trust Administrator) be duly
endorsed by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Trust Administrator duly executed by, the Holder thereof or
his attorney duly authorized in writing.
(g) No service charge to the Certificateholders shall be made
for any transfer or exchange of Certificates, but the Trust Administrator may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange
shall be canceled and destroyed by the Trust Administrator in accordance with
its customary procedures.
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the Trust
Administrator, or the Trust Administrator receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Trust Administrator such security or indemnity as may be
required by it to save each of the Trustee and the Trust Administrator harmless,
then, in the absence of actual knowledge by the Trust Administrator that such
Certificate has been acquired by a bona fide purchaser, the Trust Administrator
shall execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the
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same Class and of like denomination and Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trust Administrator may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trust Administrator) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the applicable REMIC created
hereunder, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.04 Persons Deemed.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of any of them may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the Trustee, the
Trust Administrator or any agent of any of them shall be affected by notice to
the contrary.
SECTION 5.05 Certain Available Information.
On or prior to the date of the first sale of any Private
Certificate to an Independent third party, the Depositor shall provide to the
Trust Administrator ten copies of any private placement memorandum or other
disclosure document used by the Depositor in connection with the offer and sale
of the Private Certificates. In addition, if any such private placement
memorandum or disclosure document is revised, amended or supplemented at any
time following the delivery thereof to the Trust Administrator, the Depositor
promptly shall inform the Trust Administrator of such event and shall deliver to
the Trust Administrator ten copies of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Trust
Administrator shall maintain at its Corporate Trust Office and shall make
available free of charge during normal business hours for review by any Holder
of a Certificate or any Person identified to the Trust Administrator as a
prospective transferee of a Certificate, originals or copies of the following
items: (i) in the case of a Holder or prospective transferee of a Private
Certificate, the private placement memorandum or other disclosure document
relating to such Certificates in the form most recently provided to the Trust
Administrator; and (ii) in all cases, (A) this Agreement and any amendments
hereof entered into pursuant to Section 11.01, (B) all monthly statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, and all other notices, reports, statements
and written communications delivered to the Certificateholders of the relevant
Class pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trust Administrator since the Closing
Date pursuant to Section 10.01(h), (D) any and all Officers' Certificates
delivered to the Trust Administrator by the Master Servicer since the Closing
Date to evidence the Master Servicer's determination that any P&I Advance was,
or if made, would be a Nonrecoverable P&I Advance and (E) any and all Officers'
Certificates delivered to the Trust Administrator by the Master Servicer since
the Closing Date pursuant to Section 4.04(a). Copies and mailing of any and all
of the foregoing items will be available from the Trustee upon request at the
expense of the person requesting the same.
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ARTICLE VI.
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01 Liability of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement and undertaken hereunder by the Depositor and the Master
Servicer herein.
SECTION 6.02 Merger or Consolidation of the Depositor or the
Master Servicer.
Subject to the following paragraph, the Depositor will keep in
full effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation. Subject to the following paragraph,
the Master Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation. The Depositor and the Master Servicer each will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
The Depositor or the Master Servicer may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the Rating Agencies' reaffirm the
ratings of the Certificates in effect immediately prior to such merger or
consolidation and affirm that such ratings will not be qualified, reduced or
withdrawn as a result thereof (as evidenced by a letter to such effect from the
Rating Agencies).
SECTION 6.03 Limitation on Liability of the Depositor, the
Master Servicer and Others.
None of the Depositor, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor or the Master Servicer
shall be under any liability to the Trust Fund or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or any such
person against any breach of warranties, representations or covenants made
herein, or against any specific liability imposed on the Master Servicer
pursuant hereto, or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The
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Depositor, the Master Servicer and any director, officer, employee or agent of
the Depositor or the Master Servicer may rely in good faith on any document of
any kind which, PRIMA FACIE, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer and
any director, officer, employee or agent of the Depositor or the Master Servicer
shall be indemnified and held harmless by the Trust Fund against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Certificates, other than any loss, liability or expense to
any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) or any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, in its opinion, does not involve it in any expense or
liability; provided, however, that each of the Depositor and the Master Servicer
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, unless the Depositor or the Master Servicer acts without the consent of
Holders of Certificates entitled to at least 51% of the Voting Rights (which
consent shall not be necessary in the case of litigation or other legal action
by either to enforce their respective rights or defend themselves hereunder),
the legal expenses and costs of such action and any liability resulting
therefrom (except any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder) shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor (subject to
the limitations set forth above) and the Master Servicer shall be entitled to be
reimbursed therefor from the Collection Account as and to the extent provided in
Section 3.11, any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Collection Account.
SECTION 6.04 Limitation on Resignation of the Master Servicer
The Master Servicer shall not resign from the obligations and
duties hereby imposed on it except (i) upon determination that its duties
hereunder are no longer permissible under applicable law or (ii) with the
written consent of the Trustee and the Trust Administrator, which consent may
not be unreasonably withheld, with written confirmation from the Rating Agencies
(which confirmation shall be furnished to the Depositor, the Trustee and the
Trust Administrator) that such resignation will not cause the Rating Agencies to
reduce the then current rating of the Class A Certificates and provided that a
qualified successor has agreed to assume the duties and obligations of the
Master Servicer hereunder. Any such determination pursuant to clause (i) of the
preceding sentence permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect obtained at the expense of the
Master Servicer and delivered to the Trustee and the Trust Administrator. No
resignation of the Master Servicer shall become effective until the Trust
Administrator or a successor servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
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Except as expressly provided herein, the Master Servicer shall
not assign nor transfer any of its rights, benefits or privileges hereunder to
any other Person, nor delegate to or subcontract with, nor authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer are transferred to a successor master
servicer, the entire amount of the Servicing Fee and other compensation payable
to the Master Servicer pursuant hereto shall thereafter be payable to such
successor master servicer.
SECTION 6.05 Rights of the Depositor in Respect of the Master
Servicer.
The Master Servicer shall afford (and any Sub-Servicing
Agreement shall provide that each Sub-Servicer shall afford) the Depositor, the
Trustee and the Trust Administrator, upon reasonable notice, during normal
business hours, access to all records maintained by the Master Servicer (and any
such Sub-Servicer) in respect of the Master Servicer's rights and obligations
hereunder and access to officers of the Master Servicer (and those of any such
Sub-Servicer) responsible for such obligations. Upon request, the Master
Servicer shall furnish to the Depositor, the Trustee and the Trust Administrator
its (and any such Sub-Servicer's) most recent financial statements of the parent
company of the Master Servicer and such other information relating to the Master
Servicer's capacity to perform its obligations under this Agreement that it
possesses. To the extent such information is not otherwise available to the
public, the Depositor, the Trustee and the Trust Administrator shall not
disseminate any information obtained pursuant to the preceding two sentences
without the Master Servicer's written consent, except as required pursuant to
this Agreement or to the extent that it is appropriate to do so (i) in working
with legal counsel, auditors, taxing authorities or other governmental agencies,
rating agencies or reinsurers or (ii) pursuant to any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Depositor, the Trustee, the Trust
Administrator or the Trust Fund, and in either case, the Depositor, the Trustee
or the Trust Administrator, as the case may be, shall use its best efforts to
assure the confidentiality of any such disseminated non-public information. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer under this Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
under this Agreement or exercise the rights of the Master Servicer under this
Agreement; provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Master Servicer and is not obligated to
supervise the performance of the Master Servicer under this Agreement or
otherwise.
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ARTICLE VII.
DEFAULT
SECTION 7.01 Master Servicer Events of Default.
"Master Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Master Servicer to remit to
the Trust Administrator for distribution to the
Certificateholders any payment (other than a P&I Advance
required to be made from its own funds on any Master Servicer
Remittance Date pursuant to Section 4.03) required to be made
under the terms of the Certificates and this Agreement which
continues unremedied for a period of one Business Day after
the date upon which written notice of such failure, requiring
the same to be remedied, shall have been given to the Master
Servicer by the Depositor, the Trust Administrator or the
Trustee (in which case notice shall be provided by telecopy),
or to the Master Servicer, the Depositor, the Trust
Administrator and the Trustee by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(ii) any failure on the part of the Master Servicer
duly to observe or perform in any material respect any of the
covenants or agreements on the part of the Master Servicer
contained in the Certificates or in this Agreement which
continues unremedied for a period of 30 days after the earlier
of (i) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Master Servicer by the Depositor, the Trust Administrator
or the Trustee, or to the Master Servicer, the Depositor, the
Trust Administrator and the Trustee by the Holders of
Certificates entitled to at least 25% of the Voting Rights and
(ii) actual knowledge of such failure by a Servicing Officer
of the Master Servicer; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in
an involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceeding, or for the winding-up or liquidation of
its affairs, shall have been entered against the Master
Servicer and if such proceeding is being contested by the
Master Servicer in good faith such decree or order shall have
remained in force undischarged or unstayed for a period of 60
consecutive days or results in the entry of an order for
relief or any such adjudication or appointment; or
(iv) the Master Servicer shall consent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the
Master Servicer or of or relating to all or substantially all
of its property; or
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(v) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its
obligations; or
(vi) any failure of the Master Servicer to make any
P&I Advance on any Master Servicer Remittance Date required to
be made from its own funds pursuant to Section 4.03 which
continues unremedied for a period of one Business Day after
the date upon which written notice of such failure (which
notice the Trust Administrator must provide by 3:00 p.m. New
York time on the Business Day following the Master Servicer
Remittance Date), requiring the same to be remedied, shall
have been given to the Master Servicer by the Trust
Administrator.
If a Master Servicer Event of Default described in clauses (i)
through (v) of this Section shall occur, then, and in each and every such case,
so long as such Master Servicer Event of Default shall not have been remedied,
the Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of Voting Rights, the Trustee shall, by
notice in writing to the Master Servicer (and to the Depositor and the Trust
Administrator if given by the Trustee or to the Trustee and the Trust
Administrator if given by the Depositor), terminate all of the rights and
obligations of the Master Servicer in its capacity as a Master Servicer under
this Agreement, to the extent permitted by law, and in and to the Mortgage Loans
and the proceeds thereof. If a Master Servicer Event of Default described in
clause (vi) hereof shall occur, then so long as such Master Servicer Event of
Default shall not have been remedied during the applicable time period set forth
in clause (vi) above, the Trustee shall, by notice in writing to the Master
Servicer and the Depositor, terminate all of the rights and obligations of the
Master Servicer in its capacity as a Master Servicer under this Agreement and in
and to the Mortgage Loans and the proceeds thereof, and the Trustee as successor
servicer, or another successor servicer appointed in accordance with Section
7.02, shall immediately make such advance as provided in Section 7.02. On or
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trust Administrator
pursuant to and under this Section and, without limitation, the Trust
Administrator is hereby authorized and empowered, as attorney-in-fact or
otherwise, to execute and deliver on behalf of and at the expense of the Master
Servicer, any and all documents and other instruments and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. The Master
Servicer agrees, at its sole cost and expense, promptly (and in any event no
later than ten Business Days subsequent to such notice) to provide the Trust
Administrator with all documents and records requested by it to enable it to
assume the Master Servicer's functions under this Agreement, and to cooperate
with the Trust Administrator and the Trustee in effecting the termination of the
Master Servicer's responsibilities and rights under this Agreement, including,
without limitation, the transfer within one Business Day to the Trust
Administrator for administration by it of all cash amounts which at the time
shall be or should have been credited by the Master Servicer to the Collection
Account held by or on behalf of the Master Servicer, the Distribution Account or
any REO
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Account or Servicing Account held by or on behalf of the Master Servicer or
thereafter be received with respect to the Mortgage Loans or any REO Property
serviced by the Master Servicer (provided, however, that the Master Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of P&I Advances or otherwise, and shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination, with respect to
events occurring prior to such termination). For purposes of this Section 7.01,
each of the Trustee and the Trust Administrator shall not be deemed to have
knowledge of a Master Servicer Event of Default unless a Responsible Officer of
the Trustee or the Trust Administrator, as applicable, assigned to and working
in the Trustee's or the Trust Administrator's, as the case may be, Corporate
Trust Office has actual knowledge thereof or unless written notice of any event
which is in fact such a Master Servicer Event of Default is received by the
Trustee or the Trust Administrator, as applicable, and such notice references
the Certificates, the Trust Fund or this Agreement.
SECTION 7.02 Trust Administrator or Trustee to Act;
Appointment of Successor.
(a) On and after the time the Master Servicer receives a
notice of termination, the Trust Administrator (and in the event the Trust
Administrator fails in its obligation, the Trustee) shall be the successor in
all respects to the Master Servicer in its capacity as Master Servicer under
this Agreement, the Master Servicer shall not have the right to withdraw any
funds from the Collection Account without the consent of the Trust Administrator
or the Trustee, as applicable, and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer (except
for any representations or warranties of the Master Servicer under this
Agreement, the responsibilities, duties and liabilities contained in Section
2.03(c) and its obligation to deposit amounts in respect of losses pursuant to
Section 3.12) by the terms and provisions hereof including, without limitation,
the Master Servicer's obligations to make P&I Advances pursuant to Section 4.03;
provided, however, that if the Trust Administrator or the Trustee, as
applicable, is prohibited by law or regulation from obligating itself to make
advances regarding delinquent mortgage loans, then the Trust Administrator or
the Trustee, as applicable, shall not be obligated to make P&I Advances pursuant
to Section 4.03; and provided further, that any failure to perform such duties
or responsibilities caused by the Master Servicer's failure to provide
information required by Section 7.01 shall not be considered a default by the
Trust Administrator or the Trustee, as applicable, as successor to the Master
Servicer hereunder. As compensation therefor, the Trust Administrator or the
Trustee, as applicable, shall be entitled to the Servicing Fees and all funds
relating to the Mortgage Loans to which the Master Servicer would have been
entitled if it had continued to act hereunder (other than amounts which were due
or would become due to the Master Servicer prior to its termination or
resignation). Notwithstanding the above and subject to the next paragraph, the
Trust Administrator or the Trustee, as applicable, may, if it shall be unwilling
to so act, or shall, if it is unable to so act or if it is prohibited by law
from making advances regarding delinquent mortgage loans, or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in writing
to the Trust Administrator or the Trustee, as applicable, promptly appoint or
petition a court of competent jurisdiction to appoint, an established mortgage
loan servicing institution acceptable to the Rating Agencies and having a net
worth of not less than $15,000,000 as the successor to
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the Master Servicer under this Agreement in the assumption of all or any part of
the responsibilities, duties or liabilities of the Master Servicer under this
Agreement. No appointment of a successor to the Master Servicer under this
Agreement shall be effective until the assumption by the successor of all of the
Master Servicer's responsibilities, duties and liabilities hereunder. In
connection with such appointment and assumption described herein, the Trust
Administrator or the Trustee, as applicable, may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Master Servicer as such hereunder. The Depositor,
the Trust Administrator, the Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Master Servicer under this
Agreement, the Trust Administrator or the Trustee, as applicable, shall act in
such capacity as hereinabove provided.
Upon removal or resignation of the Master Servicer, the Trust
Administrator, with the cooperation of the Depositor, (x) shall solicit bids for
a successor Master Servicer as described below and (y) pending the appointment
of a successor Master Servicer as a result of soliciting such bids, shall serve
as Master Servicer of the Mortgage Loans serviced by such predecessor Master
Servicer. The Trust Administrator shall solicit, by public announcement, bids
from housing and home finance institutions, banks and mortgage servicing
institutions meeting the qualifications set forth above (including the Trust
Administrator or any affiliate thereof). Such public announcement shall specify
that the successor Master Servicer shall be entitled to the servicing
compensation agreed upon between the Trust Administrator, the successor Master
Servicer and the Depositor; provided, however, that no such fee shall exceed the
related Servicing Fee. Within thirty days after any such public announcement,
the Trust Administrator, with the cooperation of the Depositor, shall negotiate
in good faith and effect the sale, transfer and assignment of the servicing
rights and responsibilities hereunder to the qualified party submitting the
highest satisfactory bid as to the price they will pay to obtain such servicing.
The Trust Administrator upon receipt of the purchase price shall pay such
purchase price to the Master Servicer being so removed, after deducting from any
sum received by the Trust Administrator from the successor to the Master
Servicer in respect of such sale, transfer and assignment all costs and expenses
of any public announcement and of any sale, transfer and assignment of the
servicing rights and responsibilities reasonably incurred hereunder. After such
deductions, the remainder of such sum shall be paid by the Trust Administrator
to the Master Servicer at the time of such sale.
(b) If the Master Servicer fails to remit to the Trust
Administrator for distribution to the Certificateholders any payment required to
be made under the terms of the Certificates and this Agreement (for purposes of
this Section 7.02(b), a "Remittance") because the Master Servicer is the subject
of a proceeding under the federal Bankruptcy Code and the making of such
Remittance is prohibited by Section 362 of the federal Bankruptcy Code, the
Trustee (and in the event the Trustee fails in its obligation, the Trust
Administrator), shall upon notice of such prohibition, regardless of whether it
has received a notice of termination under Section 7.01, advance the amount of
such Remittance by depositing such amount in the Distribution Account on the
related Distribution Date. The Trust Administrator or the Trustee, as
applicable, shall be obligated to make such advance only if (i) such advance, in
the good faith
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judgment of the Trust Administrator or the Trustee, as applicable, can
reasonably be expected to be ultimately recoverable from Stayed Funds and (ii)
the Trust Administrator or the Trustee, as applicable, is not prohibited by law
from making such advance or obligating itself to do so. Upon remittance of the
Stayed Funds to the Trust Administrator or the Trustee, as applicable, or the
deposit thereof in the Distribution Account by a trustee in bankruptcy or a
federal bankruptcy court, the Trust Administrator or the Trustee, as applicable,
may recover the amount so advanced, without interest, by withdrawing such amount
from the Distribution Account; however, nothing in this Agreement shall be
deemed to affect the Trust Administrator's or Trustee's, as applicable, rights
to recover from the former Master Servicer's bankruptcy estate interest on the
amount of any such advance. If the Trust Administrator or the Trustee, as the
case may be, at any time makes an advance under this Subsection which it later
determines in its good faith judgment will not be ultimately recoverable from
the Stayed Funds with respect to which such advance was made, the Trust
Administrator or the Trustee, as applicable, shall be entitled to reimburse
itself for such advance, without interest, by withdrawing from the Distribution
Account, out of amounts on deposit therein, an amount equal to the portion of
such advance attributable to the Stayed Funds.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any termination of the Master Servicer pursuant to
Section 7.01 above or any appointment of a successor to the Master Servicer
pursuant to Section 7.02 above, the Trust Administrator shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of 60 days after the occurrence
of any event, which constitutes or which, with notice or lapse of time or both,
would constitute a Master Servicer Event of Default or five days after a
Responsible Officer of the Trustee or the Trust Administrator becomes aware of
the occurrence of such an event, the Trustee or the Trust Administrator shall
transmit (or in the case of the Trustee, the Trustee shall cause the Trust
Administrator to transmit) by mail to all Holders of Certificates notice of each
such occurrence, unless such default or Master Servicer Event of Default shall
have been cured or waived.
SECTION 7.04 Waiver of Master Servicer Events of Default.
Subject to Section 11.09(d), the Holders representing at least
66% of the Voting Rights evidenced by all Classes of Certificates affected by
any default or Master Servicer Event of Default hereunder may waive such default
or Master Servicer Event of Default; provided, however, that a default or Master
Servicer Event of Default under clause (i) or (vi) of Section 7.01 may be waived
only by all of the Holders of the Regular Certificates. Upon any such waiver of
a default or Master Servicer Event of Default, such default or Master Servicer
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Master Servicer Event of Default or impair any right consequent
thereon except to the extent expressly so waived.
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ARTICLE VIII.
CONCERNING THE TRUSTEE AND THE TRUST ADMINISTRATOR
SECTION 8.01 Duties of Trustee and Trust Administrator
Each of the Trustee and the Trust Administrator, prior to the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. During a Master Servicer Event of Default, each of the Trustee and
the Trust Administrator shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs. Any permissive right of the Trustee or
the Trust Administrator enumerated in this Agreement shall not be construed as a
duty.
Each of the Trustee and the Trust Administrator, upon receipt
of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments furnished to it, which are specifically required to
be furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, it shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, it will provide notice thereof to the Certificateholders.
No provision of this Agreement shall be construed to relieve
the Trustee or the Trust Administrator from liability for its own negligent
action, its own negligent failure to act or its own misconduct; provided,
however, that:
(i) Prior to the occurrence of a Master Servicer
Event of Default, and after the curing of all such Master
Servicer Events of Default which may have occurred, the duties
and obligations of each of the Trustee and the Trust
Administrator shall be determined solely by the express
provisions of this Agreement, neither the Trustee nor the
Trust Administrator shall be liable except for the performance
of such duties and obligations as are specifically set forth
in this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee or the Trust
Administrator and, in the absence of bad faith on the part of
the Trustee or the Trust Administrator, as applicable, the
Trustee or the Trust Administrator, as the case may be, may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Trust
Administrator, as the case may be, that conform to the
requirements of this Agreement;
(ii) Neither the Trustee nor the Trust Administrator
shall be personally liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of
it unless it shall be proved that it was negligent in
ascertaining the pertinent facts; and
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(iii) Neither the Trustee nor the Trust Administrator
shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the
time, method and place of conducting any proceeding for any
remedy available to it or exercising any trust or power
conferred upon it under this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee and the
Trust Administrator
(a) Except as otherwise provided in Section 8.01:
(i) Each of the Trustee and the Trust Administrator
may request and rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) Each of the Trustee and the Trust Administrator
may consult with counsel and any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) Neither the Trustee nor the Trust Administrator
shall be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered
to the Trustee or the Trust Administrator, as applicable,
reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee
or the Trust Administrator of the obligation, upon the
occurrence of a Master Servicer Event of Default (which has
not been cured or waived), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct
of such person's own affairs;
(iv) Neither the Trustee nor the Trust Administrator
shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of a Master Servicer
Event of Default hereunder and after the curing of all Master
Servicer Events of Default which may have occurred, neither
the Trustee nor the Trust Administrator shall be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement,
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instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in
writing to do so by the Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the
payment within a reasonable time to the Trustee or the Trust
Administrator, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Trust
Administrator, as applicable, not reasonably assured to the
Trustee or Trust Administrator, as applicable, by such
Certificateholders, the Trustee or the Trust Administrator, as
applicable, may require reasonable indemnity against such
expense, or liability from such Certificateholders as a
condition to taking any such action;
(vi) Each of the Trustee and the Trust Administrator
may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents
or attorneys; and
(vii) Neither the Trustee nor the Trust Administrator
shall be personally liable for any loss resulting from the
investment of funds held in the Collection Account at the
direction of the Master Servicer pursuant to Section 3.12.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee or the Trust Administrator, may be
enforced by it without the possession of any of the Certificates, or the
production thereof at the trial or other proceeding relating thereto, and any
such suit, action or proceeding instituted by the Trustee or the Trust
Administrator shall be brought in its name for the benefit of all the Holders of
such Certificates, subject to the provisions of this Agreement.
SECTION 8.03 Neither the Trustee nor Trust Administrator
Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the signature of the Trustee or the Trust Administrator, on behalf of the
Trustee, the authentication of the Trustee or the Trust Administrator on the
Certificates, the acknowledgments of the Trustee and the Trust Administrator
contained in Article II and the representations and warranties of the Trustee
and the Trust Administrator in Section 8.12) shall be taken as the statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
responsibility for their correctness. Neither the Trustee nor the Trust
Administrator makes any representations or warranties as to the validity or
sufficiency of this Agreement (other than as specifically set forth in Section
8.12) or of the Certificates (other than the signature of the Trust
Administrator, and authentication of the Trust Administrator on the
Certificates) or of any Mortgage Loan or related document. Neither the Trustee
nor the Trust Administrator shall be accountable for the use or application by
the Depositor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
or the Master Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Master Servicer, other than any
funds held by or on behalf of the Trustee or the Trust Administrator in
accordance with Section 3.10.
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SECTION 8.04 Trustee and Trust Administrator May Own
Certificates.
Each of the Trustee and the Trust Administrator in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee or Trust
Administrator, as applicable.
SECTION 8.05 Trustee's and Trust Administrator's Fees and
Expenses.
(a) The Trust Administrator shall withdraw from the
Distribution Account on each Distribution Date and pay to itself any income and
gain realized from the investment of funds deposited in the Distribution Account
and pay to the Trustee its portion of such income and gain. Each of the Trustee
and the Trust Administrator and any director, officer, employee or agent of the
Trustee or the Trust Administrator, as applicable, shall be indemnified by the
Trust Fund and held harmless against any loss, liability or expense (not
including expenses, disbursements and advances incurred or made by the Trustee
or the Trust Administrator, as applicable, including the compensation and the
expenses and disbursements of its agents and counsel, in the ordinary course of
the Trustee's or Trust Administrator's, as the case may be, performance in
accordance with the provisions of this Agreement) incurred by the Trustee or the
Trust Administrator, as applicable, in connection with any claim or legal action
or any pending or threatened claim or legal action arising out of or in
connection with the acceptance or administration of its obligations and duties
under this Agreement, other than any loss, liability or expense (i) resulting
from any breach of the Master Servicer's obligations in connection with this
Agreement for which the Master Servicer shall indemnify the Trustee and the
Trust Administrator pursuant to Section 10.03(b) (and in the case of the
Trustee, resulting from any breach of the Trust Administrator's obligations in
connection with this Agreement for which the Trust Administrator shall indemnify
the Trustee pursuant to Section 10.03(a) and in the case of the Trust
Administrator, resulting from any breach of the Trustee's obligations in
connection with this Agreement for which the Trustee shall indemnify the Trust
Administrator pursuant to Section 10.03(c)), (ii) that constitutes a specific
liability of the Trustee or the Trust Administrator, as applicable, pursuant to
Section 10.01(g) or (iii) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties hereunder
or in the case of the Trust Administrator, as a result of a breach of the Trust
Administrator's obligations under Article X hereof. The Master Servicer agrees
to indemnify the Trustee and the Trust Administrator, from, and hold it harmless
against, any loss, liability or expense arising in respect of any breach by the
Master Servicer of its obligations in connection with this Agreement. Such
indemnity shall survive the termination or discharge of this Agreement and the
resignation or removal of the Trustee or the Trust Administrator, as the case
may be. Any payment hereunder made by the Master Servicer to the Trustee or the
Trust Administrator shall be from the Master Servicer's own funds, without
reimbursement from Any Trust REMIC therefor.
(b) The Depositor shall pay any annual rating agency fees of
the Rating Agencies for ongoing surveillance from its own funds without right of
reimbursement.
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SECTION 8.06 Eligibility Requirements for Trustee and Trust
Administrator.
Each of the Trustee and the Trust Administrator hereunder
shall at all times be a corporation or an association (other than the Depositor,
the Sellers, the Master Servicer or, in the case of the Trustee, any Affiliate
of the foregoing) organized and doing business under the laws of any state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 (or
a member of a bank holding company whose capital and surplus is at least
$50,000,000) and subject to supervision or examination by federal or state
authority. If such corporation or association publishes reports of conditions at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
conditions so published. In case at any time the Trustee or the Trust
Administrator shall cease to be eligible in accordance with the provisions of
this Section, the Trustee or the Trust Administrator, as the case may be, shall
resign immediately in the manner and with the effect specified in Section 8.07.
SECTION 8.07 Resignation and Removal of the Trustee and the
Trust Administrator
Either the Trustee or the Trust Administrator may at any time
resign and be discharged from the trust hereby created by giving written notice
thereof to the Depositor, the Master Servicer, to the Certificateholders and, if
the Trustee is resigning, to the Trust Administrator, or, if the Trust
Administrator is resigning, to the Trustee. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee or Trust
Administrator (which may be the same Person in the event both the Trustee and
the Trust Administrator resign or are removed) by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee or Trust
Administrator and to the successor Trustee or Trust Administrator, as
applicable. A copy of such instrument shall be delivered to the
Certificateholders, the Trustee or Trust Administrator, as applicable, and the
Master Servicer by the Depositor. If no successor Trustee or Trust Administrator
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee or Trust
Administrator, as applicable, may petition any court of competent jurisdiction
for the appointment of a successor Trustee or Trust Administrator, as
applicable.
If at any time the Trustee or the Trust Administrator shall
cease to be eligible in accordance with the provisions of Section 8.06 and shall
fail to resign after written request therefor by the Depositor (or in the case
of the Trust Administrator, the Trustee), or if at any time the Trustee or the
Trust Administrator shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or the Trust Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or the Trust Administrator of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then the
Depositor (or in the case of the Trust Administrator, the Trustee) may remove
the Trustee or the Trust Administrator, as applicable, and appoint a successor
Trustee or Trust Administrator (which may be the same Person in the event both
the Trustee and the Trust
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Administrator resign or are removed) by written instrument, in duplicate, which
instrument shall be delivered to the Trustee or Trust Administrator, as the case
may be, so removed and to the successor Trustee or Trust Administrator. A copy
of such instrument shall be delivered to the Certificateholders, the Trustee or
the Trust Administrator, as applicable, and the Master Servicer by the
Depositor.
The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or the Trust Administrator and
appoint a successor Trustee or Trust Administrator by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Depositor, one complete set to the Trustee or to the Trust Administrator, as the
case may be, so removed and one complete set to the successor so appointed. A
copy of such instrument shall be delivered to the Certificateholders and the
Master Servicer by the Depositor. In addition, if the Trustee has knowledge that
the Trust Administrator has breached any of its duties under this Agreement, the
Trustee may remove the Trust Administrator in the same manner as provided in the
prior sentence. For purposes of this Section, the Trustee shall not be deemed to
have knowledge of a breach by the Trust Administrator of any of its duties
hereunder, unless a Responsible Officer of the Trustee , assigned to and working
in the Trustee's Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such a breach is received by the
Trustee, and such notice references the Certificates, the Trust Fund or this
Agreement.
Any resignation or removal of the Trustee or the Trust
Administrator and appointment of a successor Trustee or Trust Administrator, as
the case may be, pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee or
Trust Administrator as provided in Section 8.08. Notwithstanding the foregoing,
in the event the Trust Administrator advises the Trustee that it is unable to
continue to perform its obligations pursuant to the terms of this Agreement
prior to the appointment of a successor, the Trustee shall be obligated to
perform such obligations until a new Trust Administrator is appointed. Such
performance shall be without prejudice to any claim by a party hereto or
beneficiary hereof resulting from the Trust Administrator's breach of its
obligations hereunder.
SECTION 8.08 Successor Trustee or Trust Administrator
Any successor Trustee or Trust Administrator appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Trustee or the Trust Administrator, as applicable, and its
predecessor Trustee or Trust Administrator an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Trust Administrator shall become effective and such
successor Trustee or Trust Administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee or Trust Administrator herein. The predecessor Trustee or Trust
Administrator shall deliver to the successor Trustee or Trust Administrator all
Mortgage Files and related documents and statements to the extent held by it
hereunder, as well as all moneys, held by it hereunder, and the Depositor and
the predecessor Trustee or Trust Administrator shall
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execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the successor
Trustee or Trust Administrator all such rights, powers, duties and obligations.
No successor Trustee or Trust Administrator shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Trustee or Trust Administrator shall be eligible under the
provisions of Section 8.06 and the appointment of such successor Trustee or
Trust Administrator shall not result in a downgrading of any Class of
Certificates by either Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon acceptance of appointment by a successor Trustee or Trust
Administrator as provided in this Section, the Depositor shall mail notice of
the succession of such Trustee or Trust Administrator hereunder to all Holders
of Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee or Trust Administrator, the successor
Trustee or Trust Administrator shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 8.09 Merger or Consolidation of Trustee.
Any corporation or association into which either the Trustee
or the Trust Administrator may be merged or converted or with which it may be
consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee or the Trust Administrator, as
the case may be, shall be a party, or any corporation or association succeeding
to the business of the Trustee or the Trust Administrator, as applicable, shall
be the successor of the Trustee or the Trust Administrator, as the case may be,
hereunder, provided such corporation or association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of REMIC I or property securing the same may at the time be located, the
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of REMIC I, and to vest in such Person or Persons, in such
capacity, such title to REMIC I, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate
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trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed by the
Trustee (whether as Trustee hereunder or as successor to a defaulting Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to REMIC I or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trust conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee, or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee or co-trustee.
SECTION 8.11 Appointment of Office or Agency.
The Trust Administrator hereby appoints its Corporate Trust
Office as the office or agency in the City of New York, New York where the
Certificates may be surrendered for registration of transfer or exchange, and
presented for final distribution, and where notices and demands to or upon the
Trust Administrator in respect of the Certificates and this Agreement may be
served.
SECTION 8.12 Representations and Warranties.
Each of the Trustee and the Trust Administrator hereby
represents and warrants to the Master Servicer, the Depositor and the Trustee or
the Trust Administrator, as applicable, as of the Closing Date, that:
(i) It is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States of America.
(ii) The execution and delivery of this Agreement by it, and
the performance and compliance with the terms of this Agreement by it,
will not violate its articles of association or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
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material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) It has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order
or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority,
which violation, in its good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of it to perform
its obligations under this Agreement or its financial condition.
(vi) No litigation is pending or, to the best of its
knowledge, threatened against it, which would prohibit it from entering
into this Agreement or, in its good faith reasonable judgment, is
likely to materially and adversely affect either the ability of it to
perform its obligations under this Agreement or its financial
condition.
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ARTICLE IX.
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of the
Trust Fund.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Trustee and the Trust Administrator with respect to the Mortgage Loans (other
than the obligations of the Master Servicer to provide for and the Trust
Administrator to make payments to the Holders of the related Class(es) of the
Certificates as hereinafter set forth) shall terminate upon payment to the
Certificateholders and the deposit of all amounts held by or on behalf of the
Trustee and required hereunder to be so paid or deposited on the Distribution
Date coinciding with or following the earlier to occur of (i) the purchase by
the Master Servicer of all Mortgage Loans and each REO Property remaining in
REMIC I and (ii) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in REMIC I;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof. The purchase by the Master
Servicer of all Mortgage Loans and each REO Property remaining in REMIC I shall
be at a price (the "Termination Price") equal to the greater of (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I, plus the
appraised value of each REO Property, if any, included in REMIC I, such
appraisal to be conducted by an appraiser mutually agreed upon by the Master
Servicer and the Trust Administrator in their reasonable discretion and (B) the
aggregate fair market value of all of the assets in REMIC I (as determined by
the Master Servicer, with the consent of the Trustee, as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to the third
paragraph of this Section 9.01).
(b) The Master Servicer shall have the right to purchase all
of the Mortgage Loans and each REO Property remaining in REMIC I pursuant to
clause (i) of the preceding paragraph no later than the Determination Date in
the month immediately preceding the Distribution Date on which the Certificates
will be retired; provided, however, that the Master Servicer, as provided above,
may elect to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I pursuant to clause (i) above only if the aggregate Stated Principal
Balance of the Mortgage Loans and each REO Property remaining in the Trust Fund
at the time of such election is reduced to less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans at the Cut-off Date. For federal income
tax purposes, the purchase by the Master Servicer of all Mortgage Loans and all
REO Properties underlying the Certificates is intended to facilitate a
redemption of such Certificates pursuant to a "cleanup call" within the meaning
of Treasury regulation section 1.860G-2(j). Notwithstanding the foregoing, the
Master Servicer shall have the right to transfer, sell or assign its rights to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I.
For so long as the Master Servicer is affiliated with an entity subject to
regulation by the Office of the Comptroller of the Currency; the FDIC, the
Federal Reserve or the OTS, the Master Servicer may exercise the foregoing
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option only if the aggregate fair market value of the Mortgage Loans and any
properties acquired in respect thereof is greater than or equal to the purchase
price described in the preceding paragraph.
(c) Notice of the liquidation of the Certificates shall be
given promptly by the Trust Administrator by letter to Certificateholders mailed
(a) in the event such notice is given in connection with the purchase of the
Mortgage Loans and each REO Property remaining in REMIC I by the Master
Servicer, not earlier than the 15th day and not later than the 25th day of the
month next preceding the month of the final distribution on the Certificates or
(b) otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and final payment of the
Certificates will be made upon presentation and surrender of the Certificates at
the office of the Trust Administrator therein designated, (ii) the amount of any
such final payment, (iii) that no interest shall accrue in respect of the
Certificates from and after the Interest Accrual Period relating to the final
Distribution Date therefor and (iv) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the Trust
Administrator. In the event such notice is given in connection with the purchase
of all of the Mortgage Loans and each REO Property remaining in REMIC I by the
Master Servicer, the Master Servicer shall deliver to the Trust Administrator
for deposit in the Distribution Account not later than the last Business Day of
the month next preceding the month in which such distribution will be made an
amount in immediately available funds equal to the Termination Price. Upon
certification to the Trust Administrator by a Servicing Officer of the making of
such final deposit, the Trustee shall promptly release or cause to be released
to the Master Servicer the Mortgage Files for the remaining Mortgage Loans, and
the Trustee shall execute all assignments, endorsements and other instruments
delivered to it which are necessary to effectuate such transfer.
(d) Upon presentation of the Certificates by the
Certificateholders on the final Distribution Date, the Trust Administrator shall
distribute to each Certificateholder so presenting and surrendering its
Certificates the amount otherwise distributable on such Distribution Date in
accordance with Section 4.01 in respect of the Certificates so presented and
surrendered. Any funds not distributed to any Holder or Holders of Certificates
being retired on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust by the Trust Administrator and credited to the account of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trust Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trust Administrator shall, directly or
through an agent, mail a final notice to remaining related non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in the trust funds.
If within one year after the final notice any such Certificates shall not have
been surrendered for cancellation, the
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Trust Administrator shall pay to the Class R Certificateholders all such
amounts, and all rights of non-tendering Certificateholders in or to such
amounts shall thereupon cease. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trust Administrator as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 9.01.
Immediately following the deposit of funds in trust hereunder
in respect of the Certificates, the Trust Fund shall terminate.
SECTION 9.02 Additional Termination Requirements.
(a) In the event that the Master Servicer purchases all the
Mortgage Loans and each REO Property, the Trust Fund shall be terminated in
accordance with the following additional requirements (or in connection with the
final payment on or other liquidation of the last Mortgage Loan or REO Property
remaining in REMIC I, the additional requirement specified in clause (i) below):
(i) The Trust Administrator shall specify the first day in the
90-day liquidation period in a statement attached to REMIC I's final
Tax Return pursuant to Treasury regulation Section 1.860F-1, and such
termination shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder, as
evidenced by an Opinion of Counsel obtained at the expense of the
Master Servicer;
(ii) During such 90-day liquidation period, and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Master Servicer
for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trust Administrator shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand in REMIC I (other than cash retained to
meet claims), and the Trust Fund shall terminate at that time.
(b) At the expense of the Master Servicer (or in the event of
termination under Section 9.01(a)(ii), at the expense of the Trust
Administrator), the Trust Administrator shall prepare or cause to be prepared
the documentation required in connection with the adoption of a plan of
liquidation of each Trust REMIC pursuant to this Section 9.02.
(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trust Administrator to specify the 90-day
liquidation period for each Trust REMIC, which authorization shall be binding
upon all successor Certificateholders.
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ARTICLE X.
REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The Trust Administrator shall elect to treat each Trust
REMIC as a REMIC under the Code and, if necessary, under applicable state law.
Such election will be made by the Trust Administrator on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of the REMIC elections in respect of
each Trust REMIC, the REMIC I Regular Interests shall be designated as the
Regular Interests in REMIC I, the Class R-I Interest shall be designated as the
sole class of Residual Interests in REMIC I, the Certificates (other than the
Class R Certificates) shall be designated as the Regular Interests in REMIC II
and the Class R-II Interest shall be designated as the sole class of Residual
Interests in REMIC II. Neither the Trustee nor the Trust Administrator shall
permit the creation of any "interests" in any Trust REMIC (within the meaning of
Section 860G of the Code) other than the REMIC I Regular Interests and the
interests represented by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day"
of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Trust Administrator shall pay out of its own funds,
without any right of reimbursement, any and all expenses relating to any tax
audit of the Trust Fund (including, but not limited to, any professional fees or
any administrative or judicial proceedings with respect to any Trust REMIC that
involve the Internal Revenue Service or state tax authorities), other than the
expense of obtaining any tax related Opinion of Counsel except as specified
herein. The Trust Administrator, as agent for each Trust REMIC's tax matters
person, shall (i) act on behalf of the Trust Fund in relation to any tax matter
or controversy involving any Trust REMIC and (ii) represent the Trust Fund in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The holder of the
largest Percentage Interest of the Residual Certificates shall be designated, in
the manner provided under Treasury regulations section 1.860F-4(d) and Treasury
regulations section 301.6231(a)(7)-1, as the tax matters person of any Trust
REMIC created hereunder. By its acceptance thereof, the holder of the largest
Percentage Interest of the Residual Certificates hereby agrees to irrevocably
appoint the Trust Administrator or an Affiliate as its agent to perform all of
the duties of the tax matters person for the Trust Fund.
(d) The Trust Administrator shall prepare, the Trustee shall
sign, and the Trust Administrator shall file, all of the Tax Returns in respect
of any Trust REMIC created hereunder. The expenses of preparing and filing such
returns shall be borne by the Trust Administrator without any right of
reimbursement therefor. The Master Servicer shall provide on a timely basis to
the Trust Administrator or its designee such information with respect to the
assets of the Trust Fund as is in its possession and reasonably required by the
Trust Administrator to enable it to perform its obligations under this Article.
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(e) The Trust Administrator shall perform on behalf of any
Trust REMIC all reporting and other tax compliance duties that are the
responsibility of any Trust REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority including the filing of Form 8811 with the Internal Revenue
Service within 30 days following the Closing Date. Among its other duties, as
required by the Code, the REMIC Provisions or other such compliance guidance,
the Trust Administrator shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Person who is not a
Permitted Transferee, (ii) to the Certificateholders such information or reports
as are required by the Code or the REMIC Provisions including reports relating
to interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service the
name, title, address and telephone number of the person who will serve as the
representative of REMIC I. The Master Servicer shall provide on a timely basis
to the Trust Administrator such information with respect to the assets of the
Trust Fund, including, without limitation, the Mortgage Loans, as is in its
possession and reasonably required by the Trust Administrator to enable it to
perform its obligations under this subsection. In addition, the Depositor shall
provide or cause to be provided to the Trust Administrator, within ten (10) days
after the Closing Date, all information or data that the Trust Administrator
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(f) The Master Servicer, the Trustee and the Trust
Administrator shall take such action and shall cause each Trust REMIC to take
such action as shall be necessary to create or maintain the status thereof as a
REMIC under the REMIC Provisions. The Master Servicer, the Trustee and the Trust
Administrator shall not take any action, cause the Trust Fund to take any action
or fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of each Trust REMIC as a REMIC or (ii) result in the imposition of a tax
upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Trustee and the Trust Administrator
have received an Opinion of Counsel, addressed to the Trustee and the Trust
Administrator (at the expense of the party seeking to take such action but in no
event at the expense of the Trust Administrator or the Trustee) to the effect
that the contemplated action will not, with respect to each Trust REMIC,
endanger such status or result in the imposition of such a tax, nor shall the
Master Servicer take or fail to take any action (whether or not authorized
hereunder) as to which the Trustee or the Trust Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to each Trust REMIC or its assets, or causing
REMIC I to take any action, which is not contemplated under the terms of this
Agreement, the Master Servicer will consult with the Trustee and the Trust
Administrator or their designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to each Trust REMIC,
and the Master Servicer shall not take any such action or cause any Trust REMIC
to take any such action as to which the Trustee or the Trust Administrator has
advised it in writing that an Adverse REMIC Event could occur. The Trust
Administrator and the Trustee
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may consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take the action not permitted by this
Agreement, but in no event shall such cost be an expense of the Trustee or the
Trust Administrator. At all times as may be required by the Code, the Trust
Administrator, the Trustee or the Master Servicer will ensure that substantially
all of the assets of each Trust REMIC will consist of "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of any Trust REMIC created hereunder as defined in Section
860F(a)(2) of the Code, on the "net income from foreclosure property" of any
Trust REMIC as defined in Section 860G(c) of the Code, on any contributions to
any Trust REMIC after the Startup Day therefor pursuant to Section 860G(d) of
the Code, or any other tax is imposed by the Code or any applicable provisions
of state or local tax laws, such tax shall be charged (i) to the Trust
Administrator pursuant to Section 10.03 hereof, if such tax arises out of or
results from a breach by the Trust Administrator of any of its obligations under
this Article X, (ii) to the Trustee pursuant to Section 10.03 hereof, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article X, (iii) to the Master Servicer pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Article X,
or otherwise (iv) against amounts on deposit in the Distribution Account and
shall be paid by withdrawal therefrom.
(h) On or before April 15 of each calendar year, commencing
April 15, 2004, the Trust Administrator shall deliver to the Master Servicer,
the Trustee and the Rating Agencies a Certificate from a Responsible Officer of
the Trust Administrator stating the Trust Administrator's compliance with this
Article X.
(i) The Trust Administrator shall, for federal income tax
purposes, maintain books and records with respect to each Trust REMIC on a
calendar year and on an accrual basis.
(j) Following the Startup Day, the Master Servicer, the
Trustee and the Trust Administrator shall not accept any contributions of assets
to each Trust REMIC other than in connection with any Qualified Substitute
Mortgage Loan delivered in accordance with Section 2.03 unless it shall have
received an Opinion of Counsel to the effect that the inclusion of such assets
in the Trust Fund will not cause any Trust REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding or subject any Trust REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(k) None of the Trustee, the Trust Administrator or the Master
Servicer shall enter into any arrangement by which any Trust REMIC will receive
a fee or other compensation for services nor permit either such REMIC to receive
any income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
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SECTION 10.02 Prohibited Transactions and Activities.
None of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the foreclosure of a Mortgage
Loan, including but not limited to, the acquisition or sale of a Mortgaged
Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of any
Trust REMIC, (iii) the termination of any Trust REMIC pursuant to Article IX of
this Agreement, (iv) a substitution pursuant to Article II of this Agreement or
(v) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement), nor acquire any assets for REMIC I (other than REO Property acquired
in respect of a defaulted Mortgage Loan), nor sell or dispose of any investments
in the Collection Account or the Distribution Account for gain, nor accept any
contributions to any Trust REMIC after the Closing Date (other than a Qualified
Substitute Mortgage Loan delivered in accordance with Section 2.03), unless it
has received an Opinion of Counsel, addressed to the Trustee and the Trust
Administrator (at the expense of the party seeking to cause such sale,
disposition, substitution, acquisition or contribution but in no event at the
expense of the Trustee or the Trust Administrator) that such sale, disposition,
substitution, acquisition or contribution will not (a) affect adversely the
status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC to be subject
to a tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
SECTION 10.03 Master Servicer and Trust Administrator
Indemnification.
(a) The Trust Administrator agrees to indemnify the Trust
Fund, the Depositor, the Master Servicer and the Trustee for any taxes and costs
including, without limitation, any reasonable attorneys fees imposed on or
incurred by the Trust Fund, the Depositor, the Master Servicer or the Trustee as
a result of a breach of the Trust Administrator's covenants set forth in this
Article X.
(b) The Master Servicer agrees to indemnify the Trust Fund,
the Depositor, the Trust Administrator and the Trustee for any taxes and costs
including, without limitation, any reasonable attorneys' fees imposed on or
incurred by the Trust Fund, the Depositor, the Trust Administrator or the
Trustee, as a result of a breach of the Master Servicer's covenants set forth in
Article III or this Article X.
(c) The Trustee agrees to indemnify the Trust Fund, the
Depositor, the Trust Administrator and the Master Servicer for any taxes and
costs including, without limitation, any reasonable attorneys' fees imposed on
or incurred by the Trust Fund, the Depositor, the Trust Administrator or the
Master Servicer, as a result of a breach of the Trustee's covenants set forth in
this Article X.
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ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Trustee and the Trust Administrator without
the consent of any of the Certificateholders, (i) to cure any ambiguity or
defect, (ii) to correct, modify or supplement any provisions herein (including
to give effect to the expectations of Certificateholders) or (iii) to make any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement,
provided that such action shall not adversely affect in any material respect the
interests of any Certificateholder, as evidenced by either (a) an Opinion of
Counsel delivered to the Trustee and the Trust Administrator or (b) written
notice to the Depositor, the Master Servicer, the Trust Administrator and the
Trustee from the Rating Agencies that such action will not result in the
reduction or withdrawal of the rating of any outstanding Class of Certificates
with respect to which it is a Rating Agency. No amendment shall be deemed to
adversely affect in any material respect the interests of any Certificateholder
who shall have consented thereto, and no Opinion of Counsel or written notice
from the Rating Agencies shall be required to address the effect of any such
amendment on any such consenting Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Trust Administrator and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed on
any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner, other than as described in (i), without the
consent of the Holders of Certificates of such Class evidencing at least 66% of
the Voting Rights allocated to such Class, or (iii) modify the consents required
by the immediately preceding clauses (i) and (ii) without the consent of the
Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or the Master Servicer or any Affiliate thereof shall be entitled
to Voting Rights with respect to matters affecting such Certificates.
Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the Trust Administrator shall consent to any amendment
to this Agreement unless it shall have first received an Opinion of Counsel to
the effect that such amendment will not result in the imposition of any tax on
any Trust REMIC pursuant to the REMIC Provisions or cause any Trust REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding.
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Prior to executing any amendment pursuant to this Section, the
Trustee and the Trust Administrator shall be entitled to receive an Opinion of
Counsel (provided by the Person requesting such amendment) to the effect that
such amendment is authorized or permitted by this Agreement.
Promptly after the execution of any such amendment the Trust
Administrator shall furnish a copy of such amendment to each Certificateholder.
It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trust Administrator may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to
this Section 11.01 shall be borne by the Person seeking the related amendment,
but in no event shall such Opinion of Counsel be an expense of the Trustee or
the Trust Administrator.
Notwithstanding the foregoing, each of the Trustee and Trust
Administrator may, but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
SECTION 11.02 Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Certificateholders, but
only upon direction of Certificateholders accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or
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the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of any of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless (i)
such Holder previously shall have given to the Trustee and the Trust
Administrator a written notice of default and of the continuance thereof, as
hereinbefore provided, and (ii) the Holders of Certificates entitled to at least
25% of the Voting Rights shall have made written request upon the Trustee and
the Trust Administrator to institute such action, suit or proceeding in its own
name as Trustee or Trust Administrator hereunder and shall have offered to the
Trustee or the Trust Administrator, as applicable, such indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee or the Trust Administrator, for 15 days after its
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding. It is understood and
intended, and expressly covenanted by each Certificateholder with every other
Certificateholder, the Trustee and the Trust Administrator, that no one or more
Holders of Certificates shall have any right in any manner whatsoever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder,
the Trustee and the Trust Administrator shall be entitled to such relief as can
be given either at law or in equity.
SECTION 11.04 Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 11.05 Notices.
All directions, demands and notices hereunder shall be sent
(i) via facsimile (with confirmation of receipt) or (ii) in writing and shall be
deemed to have been duly given when received if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service or
delivered in any other manner specified herein, to (a) in the case of the
Depositor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage
Finance Group (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or
telecopy number as may hereafter be furnished to the Master Servicer, the Trust
Administrator and the Trustee in writing by the Depositor, (b) in the case of
the Master Servicer, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Loan Sale Servicing Section (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇), or
such other address or telecopy number as may hereafter be furnished to the
Trustee, the Trust Administrator and the Depositor in writing by the Master
Servicer, (c) in the case of the Trustee,
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▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention:
Structured Finance/CMLTI 2004-UST1 (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such
other address or telecopy number as may hereafter be furnished to the Master
Servicer, the Trust Administrator and the Depositor in writing by the Trustee
and (d) in the case of the Trust Administrator, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance/CMLTI 2004-UST1
(telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or telecopy number as
may hereafter be furnished to the Master Servicer, the Depositor and the Trustee
in writing by the Trust Administrator. Any notice required or permitted to be
given to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice. A copy of any notice required to be
telecopied hereunder also shall be mailed to the appropriate party in the manner
set forth above.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Notice to Rating Agencies.
The Trust Administrator shall use its best efforts promptly to
provide notice to the Rating Agencies with respect to each of the following of
which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Master Servicer Event of Default that
has not been cured or waived;
3. The resignation or termination of the Master Servicer, the
Trust Administrator or the Trustee;
4. The repurchase or substitution of Mortgage Loans pursuant
to or as contemplated by Section 2.03;
5. The final payment to the Holders of any Class of
Certificates;
6. Any change in the location of the Collection Account or the
Distribution Account;
7. Any event that would result in the inability of the Trust
Administrator or the Trustee, as applicable, were it to succeed as
Master Servicer, to make advances regarding delinquent Mortgage Loans;
and
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8. The filing of any claim under the Master Servicer's blanket
bond and errors and omissions insurance policy required by Section 3.14
or the cancellation or material modification of coverage under any such
instrument.
In addition, the Trust Administrator shall promptly furnish to
the Rating Agencies copies of each report to Certificateholders described in
Section 4.02 and the Master Servicer, as required pursuant to Section 3.20 and
Section 3.21, shall promptly furnish to the Rating Agencies copies of the
following:
1. Each annual statement as to compliance described in Section
3.20; and
2. Each annual independent public accountants' servicing
report described in Section 3.21.
Any such notice pursuant to this Section 11.07 shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
to Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and to Fitch Ratings, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other addresses as the Rating
Agencies may designate in writing to the parties hereto.
SECTION 11.08 Article and Section References.
All article and section references used in this Agreement,
unless otherwise provided, are to articles and sections in this Agreement.
SECTION 11.09 Grant of Security Interest.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Depositor to the Trustee be, and be
construed as, a sale of the Mortgage Loans by the Depositor and not a pledge of
the Mortgage Loans by the Depositor to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Depositor,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt
or other obligation of the Depositor and (b)(1) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
Uniform Commercial Code as in effect from time to time in the State of New York;
(2) the conveyance provided for in Section 2.01 hereof shall be deemed to be a
grant by the Depositor to the Trustee of a security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account and the Distribution Account,
whether in the form of cash, instruments, securities or other property; (3) the
obligations secured by such security agreement shall be deemed to be all of the
Depositor's obligations under this Agreement, including the obligation to
provide to the
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Certificateholders the benefits of this Agreement relating to the Mortgage Loans
and the Trust Fund; and (4) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee a security interest in
the Mortgage Loans and all other property described in clause (2) of the
preceding sentence, for the purpose of securing to the Trustee the performance
by the Depositor of the obligations described in clause (3) of the preceding
sentence. Notwithstanding the foregoing, the parties hereto intend the
conveyance pursuant to Section 2.01 to be a true, absolute and unconditional
sale of the Mortgage Loans and assets constituting the Trust Fund by the
Depositor to the Trustee.
-146-
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Trust Administrator and the Trustee have caused their names to be signed hereto
by their respective officers thereunto duly authorized, in each case as of the
day and year first above written.
CITIGROUP MORTGAGE LOAN TRUST INC.,
as Depositor
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
UST MORTGAGE COMPANY,
as Master Servicer
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
U.S. BANK NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Trustee
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A., not in its individual
capacity but solely as Trust Administrator
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of October 2004, before me, a notary public in
and for said State, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇, known to me to be an
Assistant Vice President of Citigroup Mortgage Loan Trust Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Notary Public
[Notarial Seal]
STATE OF NEVADA )
) ss.:
COUNTY OF ▇▇▇▇▇ )
On the 26th day of October 2004, before me, a notary public in
and for said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, known to me to be a
President of UST Mortgage Company, one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------
Notary Public
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the 26th day of October 2004, before me, a notary public in
and for said State, personally appeared ▇▇▇ ▇. ▇▇▇▇▇▇, known to me to be a Vice
President of U.S. Bank National Association, one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
On the 26th day of October 2004, before me, a notary public in
and for said State, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, known to me to be a
Vice President of Citibank, N.A., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
-----------
FORM OF CLASS A-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-UST1, Class A-1 Aggregate Certificate Principal Balance of
Class A-1 Certificates as of the Issue
Date: $115,166,000.00
Pass-Through Rate: Variable Denomination: $115,166,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: 17307G KY 3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-1-1
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family,
adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and
sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-1 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trustee and the Trust Administrator, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-1-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
A-1-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-1-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-1-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-1-6
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF CLASS A-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-UST1, Class A-2 Aggregate Certificate Principal Balance of
Class A-2 Certificates as of Issue Date:
$50,723,000.00
Pass-Through Rate: Variable Denomination: $50,723,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: 17307G KZ 0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-2-1
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-2 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trustee and the Trust Administrator, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-2-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
A-2-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-2-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-2-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-2-6
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF CLASS A-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-UST1, Class A-3 Aggregate Certificate Principal Balance of
Class A-3Certificates as of Issue Date:
$204,986,000
Pass-Through Rate: Variable Denomination: $204,986,000
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: 17307G LA 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-3-1
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-3 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trustee and the Trust Administrator, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-3-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
A-3-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-3-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-3-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-3-6
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF CLASS A-4 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-UST1, Class A-4 Aggregate Certificate Principal Balance of
Class A-4 Certificates as of Issue Date:
$159,224,000.00
Pass-Through Rate: Variable Denomination: $159,224,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: 17307G LB 2
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-4-1
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-4 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trustee and the Trust Administrator, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-4 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-4-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
A-4-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-4-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-4-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-4-6
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
▇-▇-▇
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF CLASS A-5 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-UST1, Class A-5 Aggregate Certificate Principal Balance of
Class A-5 Certificates as of Issue Date:
$380,071,000.00
Pass-Through Rate: Variable Denomination: $380,071,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: 17307G LC 0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-5-1
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-5 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-5 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trustee and the Trust Administrator, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-5 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-5-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
A-5-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-5-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-5-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-5-6
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM OF CLASS A-6 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-UST1, Class A-6 Aggregate Certificate Principal Balance of
Class A-6 Certificates as of Issue Date:
$87,917,000.00
Pass-Through Rate: Variable Denomination: $87,917,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: 17307G LD 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-6-1
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-6 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-6 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer, the
Trustee and the Trust Administrator, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-6 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-6-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
A-6-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-6-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-6-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-6-6
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
▇-▇-▇
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[Reserved]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[Reserved]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[Reserved]
A-9-1
EXHIBIT A-10
------------
FORM OF CLASS B-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE
CLASS A-4 CERTIFICATES, THE CLASS A-5 CERTIFICATES AND THE
CLASS A-6 CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
A-10-1
Series 2004-UST1, Class B-1 Aggregate Certificate Principal Balance of
Class B-1 Certificates as of the Issue Date:
$12,316,000.00
Pass-Through Rate: Variable Denomination: $12,316,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: ▇▇▇▇▇▇▇▇▇
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-10-2
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
B-1 Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class B-1 Certificates in REMIC I created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-10-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is purportedly being made in reliance upon Rule 144A under
the 1933 Act, written certifications from the Holder of the Certificate desiring
to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which
A-10-4
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Trust Administrator, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-10-5
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-10-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-10-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
A-10-8
EXHIBIT A-11
------------
FORM OF CLASS B-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE
CLASS A-4 CERTIFICATES, THE CLASS A-5 CERTIFICATES, THE CLASS
A-6 CERTIFICATES AND THE CLASS B-1 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
A-11-1
Series 2004-UST1, Class B-2 Aggregate Certificate Principal Balance of
Class B-2 Certificates as of the Issue Date:
$6,158,000.00
Pass-Through Rate: Variable Denomination: $6,158,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: ▇▇▇▇▇▇▇▇▇
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-11-2
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
B-2 Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class B-2 Certificates in REMIC I created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-11-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is purportedly being made in reliance upon Rule 144A under
the 1933 Act, written certifications from the Holder of the Certificate desiring
to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which
A-11-4
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Trust Administrator, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-11-5
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-11-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-11-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
A-11-8
EXHIBIT A-12
------------
FORM OF CLASS B-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE
CLASS A-4 CERTIFICATES, THE CLASS A-5 CERTIFICATES, THE CLASS
A-6 CERTIFICATES, THE CLASS B-1 CERTIFICATES AND THE CLASS B-2
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
A-12-1
Series 2004-UST1, Class B-3 Aggregate Certificate Principal Balance of
Class B-3 Certificates as of the Issue Date:
$3,592,000.00
Pass-Through Rate: Variable Denomination: $3,592,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: ▇▇▇▇▇▇▇▇▇
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-12-2
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
B-3 Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class B-3 Certificates in REMIC I created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-12-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is purportedly being made in reliance upon Rule 144A under
the 1933 Act, written certifications from the Holder of the Certificate desiring
to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which
A-12-4
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Trust Administrator, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-12-5
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-12-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-12-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
A-12-8
EXHIBIT A-13
------------
FORM OF CLASS B-4 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE
CLASS A-4 CERTIFICATES, THE CLASS A-5 CERTIFICATES, THE CLASS
A-6 CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2
CERTIFICATES AND THE CLASS B-3 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
A-13-1
Series 2004-UST1, Class B-4 Aggregate Certificate Principal Balance of
Class B-4 Certificates as of the Issue Date:
$2,053,000.00
Pass-Through Rate: Variable Denomination: $2,053,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: ▇▇▇▇▇▇▇▇▇
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-13-2
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
B-4 Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class B-4 Certificates in REMIC I created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-4 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-13-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is purportedly being made in reliance upon Rule 144A under
the 1933 Act, written certifications from the Holder of the Certificate desiring
to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which
A-13-4
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Trust Administrator, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-13-5
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-13-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-13-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
A-13-8
EXHIBIT A-14
------------
FORM OF CLASS B-5 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE
CLASS A-4 CERTIFICATES, THE CLASS A-5 CERTIFICATES, THE CLASS
A-6 CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2
CERTIFICATES, THE CLASS B-3 CERTIFICATES AND THE CLASS B-4
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
A-14-1
Series 2004-UST1, Class B-5 Aggregate Certificate Principal Balance of
Class B-5 Certificates as of the Issue Date:
$1,539,000.00
Pass-Through Rate: Variable Denomination: $1,539,000.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: ▇▇▇▇▇▇▇▇▇
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-14-2
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
B-5 Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class B-5 Certificates in REMIC I created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-5 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-14-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is purportedly being made in reliance upon Rule 144A under
the 1933 Act, written certifications from the Holder of the Certificate desiring
to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which
A-14-4
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Trust Administrator, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-14-5
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-14-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-14-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
A-14-8
A-15-2
EXHIBIT A-15
------------
FORM OF CLASS B-6 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE
CLASS A-4 CERTIFICATES, THE CLASS A-5 CERTIFICATES, THE CLASS
A-6 CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2
CERTIFICATES, THE CLASS B-3 CERTIFICATES, THE CLASS B-4
CERTIFICATES AND THE CLASS B-5 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
A-15-1
Series 2004-UST1, Class B-6 Aggregate Certificate Principal Balance of
Class B-6 Certificates as of the Issue Date:
$2,566,464.49
Pass-Through Rate: Variable Denomination: $2,566,464.49
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
CUSIP: 1729759D2
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-15-2
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
B-6 Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class B-6 Certificates in REMIC I created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-6 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-15-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is purportedly being made in reliance upon Rule 144A under
the 1933 Act, written certifications from the Holder of the Certificate desiring
to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which
A-15-4
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Trust Administrator, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-15-5
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-15-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-15-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
A-15-8
EXHIBIT A-16
------------
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN
AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1)
THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN
A-16-1
SECTION 1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE
REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT
OF A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH
TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND
(II) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS
RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO
A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO
LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE
HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED
ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF THIS CERTIFICATE.
Series 2004-UST1, Class R Aggregate Percentage Interest of Class R
Certificates as of the Issue Date:
$100.00
Pass-Through Rate: N/A Denomination: $100.00
Date of Agreement and Cut-off Date: Master Servicer: UST Mortgage Company
October 1, 2004
First Distribution Date: Trustee: U.S. Bank National Association
November 26, 2004
No. 1 Trust Administrator: Citibank, N.A.
Issue Date: October 26, 2004
A-16-2
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-UST1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and balloon, first lien mortgage loans (the "Mortgage Loans") formed and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER
SERVICER, THE MORTGAGE LOAN SELLER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Percentage Interest of the Class R
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class R Certificates in REMIC I created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among Citigroup Mortgage Loan Trust Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Master
Servicer, the Trustee and the Trust Administrator, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trust Administrator of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
A-16-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Percentage Interest of the Class of Certificates specified on the
face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Master Servicer, the Trustee and the
Trust Administrator, with the consent of the Holders of Certificates entitled to
at least 66% of the Voting Rights. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trust Administrator shall require receipt of
(i) if such transfer is purportedly being made in reliance upon Rule 144A under
the 1933 Act, written certifications from the Holder of the Certificate desiring
to effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which
A-16-4
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Trust Administrator, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trust Administrator (i) an affidavit to the effect that such transferee is any
Person other than a Disqualified Organization or the agent (including a broker,
nominee or middleman) of a Disqualified Organization, and (ii) a certificate
that acknowledges that (A) the Class R-I Certificates have been designated as a
residual interest in REMIC I, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-I Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall be
deemed to be of no legal force or effect whatsoever and such Person shall not be
deemed to be a Certificateholder for any purpose, including, but not limited to,
the receipt of distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon REMIC
I.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and any agent of the Depositor, the Master Servicer, the Trustee
or the Trust Administrator may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trustee, the Trust Administrator nor any such agent
shall be affected by notice to the contrary.
A-16-5
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trust
Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment (or any advance with respect
thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I,
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans remaining therein.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining therein at a price determined
as provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and neither the Trustee nor the Trust Administrator assume any
responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trust Administrator, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any purpose.
A-16-6
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: October __, 2004
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
CITIBANK, N.A.
as Trust Administrator
By:_____________________________________
Authorized Signatory
A-16-7
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
--------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ____________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
A-16-8
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ___________________________, account number ________________,
or, if mailed by check, to ________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ____________________, as its agent.
A-16-9
B-1
EXHIBIT B
---------
[RESERVED]
B-1
EXHIBIT C-1
-----------
FORM OF TRUSTEE'S INITIAL CERTIFICATION
___________, 2004
Citigroup Mortgage Loan Trust Inc. UST Mortgage Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of October
1, 2004, among Citigroup Mortgage Loan Trust Inc.,
UST Mortgage Company, U.S. Bank National Association
and Citibank, N.A., Mortgage Pass-Through
Certificates, Series 2004-UST1
-----------------------------------------------------
Ladies and Gentlemen:
Attached is the Trustee's preliminary exceptions in accordance
with Section 2.02 of the referenced Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
The Trustee hereby certifies that as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or any Mortgage Loan specifically identified in the exception report annexed
thereto as not being covered by such certification), (i) all documents required
to be delivered to it pursuant Section 2.01 of this Agreement are in its
possession and (ii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule that corresponds to items
(i), (ii), (iii) and (xiv) of the Mortgage Loan Schedule accurately reflects
information set forth in the Mortgage File.
The Trustee is under no duty or obligation to inspect, review
or examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
U.S. BANK NATIONAL
ASSOCIATION
By:_____________________________________
Name:
Title:
C-1-1
EXHIBIT C-2
-----------
FORM OF TRUSTEE'S FINAL CERTIFICATION
______________, 2004
Citigroup Mortgage Loan Trust Inc. UST Mortgage Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of October
1, 2004, among Citigroup Mortgage Loan Trust Inc.,
UST Mortgage Company, U.S. Bank National Association
and Citibank, N.A., Mortgage Pass-Through
Certificates, Series 2004-UST1
-----------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto), it or a
Custodian on its behalf has received:
(i) the original recorded Mortgage, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of
attorney, or a certified copy thereof in those instances where the
public recording office retains the original or where the original has
been lost; and
(ii) an original Assignment in recordable form or a recorded
Assignment to the Trustee together with the original recorded
Assignment or Assignments showing a complete chain of assignment from
the originator, or a certified copy of such Assignments in those
instances where the public recording retains the original or where
original has been lost; and
(iii) the original lender's title insurance policy.
The Trustee is under no duty or obligation to inspect, review
or examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
U.S. BANK NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
C-2-1
EXHIBIT C-3
-----------
FORM OF RECEIPT OF MORTGAGE NOTES
___________, 2004
Citigroup Mortgage Loan Trust Inc. UST Mortgage Company
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of October
1, 2004, among Citigroup Mortgage Loan Trust Inc.,
UST Mortgage Company, U.S. Bank National Association
and Citibank, N.A., Mortgage Pass-Through
Certificates, Series 2004-UST1
-----------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing
Agreement, dated as of October 1, 2004, among Citigroup Mortgage Loan Trust Inc.
as Depositor, UST Mortgage Company as Master Servicer, U.S. Bank National
Association as trustee (the "Trustee") and Citibank, N.A. as trustee
administrator, we hereby acknowledge the receipt of the original Mortgage Notes
with any exceptions thereto listed on Exhibit 2.
U.S. BANK NATIONAL ASSOCIATION
By:_____________________________________
Name:
Title:
C-3-1
EXHIBIT D
---------
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
D-1
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement"),
dated October 26, 2004, among Citigroup Mortgage Loan Trust Inc., a Delaware
corporation (the "Purchaser"), UST Mortgage Company, a Florida corporation
("UST") and Co-Op Holdings, Inc., a Nevada corporation ("Co-Op Holdings"; and
together with UST, the "Sellers").
PRELIMINARY STATEMENT
The Sellers intend to sell the Mortgage Loans (as hereinafter
defined) on a servicing retained basis to the Purchaser on the terms and subject
to the conditions set forth in this Agreement. The Purchaser intends to deposit
the Mortgage Loans into a mortgage pool comprising the trust fund. The trust
fund will be evidenced by a single series of mortgage pass-through certificates
designated as Series 2004-UST1 (the "Certificates"). The Certificates will
consist of thirteen classes of certificates. The Certificates will be issued
pursuant to a Pooling and Servicing Agreement, dated as of October 1, 2004 (the
"Pooling and Servicing Agreement"), among the Purchaser as depositor, UST as
master servicer (the "Master Servicer"), U.S. Bank National Association as
trustee (the "Trustee") and Citibank, N.A. as trust administrator (the "Trust
Administrator"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement.
The parties hereto agree as follows:
SECTION 1. AGREEMENT TO PURCHASE. The Sellers agree to sell,
and the Purchaser agrees to purchase, on or before October 26, 2004 (the
"Closing Date"), certain adjustable-rate, interest-only and balloon,
conventional residential mortgage loans (the "Mortgage Loans") on a servicing
retained basis, having an aggregate principal balance as of the close of
business on October 1, 2004 (the "Cut-off Date") of approximately
$1,026,311,546.44 (the "Closing Balance"), after giving effect to all payments
due on the Mortgage Loans on or before the Cut-off Date, whether or not
received.
SECTION 2. MORTGAGE LOAN SCHEDULE. The Purchaser and the
Sellers have agreed upon which of the mortgage loans owned by the Sellers are to
be purchased by the Purchaser pursuant to this Agreement and the Sellers will
prepare or cause to be prepared on or prior to the Closing Date a final schedule
(the "Closing Schedule") that together shall describe such Mortgage Loans and
set forth all of the Mortgage Loans to be purchased under this Agreement. The
Closing Schedule will conform to the requirements set forth in this Agreement
and to the definition of "Mortgage Loan Schedule" under the Pooling and
Servicing Agreement. The Closing Schedule shall be used as the Mortgage Loan
Schedule under the Pooling and Servicing Agreement.
SECTION 3. CONSIDERATION.
(a) In consideration for the Mortgage Loans to be purchased
hereunder, the Purchaser shall, as described in Section 8, pay to or upon the
order of UST, on behalf of the Sellers in immediately available funds an amount
(the "Purchase Price") equal to (i) the net sale proceeds of the Class A-2
Certificates, 54.36% of the Class A-1 Certificates, 11.01% of the A-3
Certificates, 10.94% of the Class A-4 Certificates, 10.91% of the Class A-5
Certificates and
10.92% of the Class A-6 Certificates (together the "Sellers' Certificates")
(which amount is net of fees and expenses of Citigroup Global Markets Inc.),
plus accrued interest and (ii) the Class B-1 Certificates, the Class B-2
Certificates, the Class B-3 Certificates, the Class B-4 Certificates, the Class
B-5 Certificates, the Class B-6 Certificates and the Class R Certificates (the
"U.S. Trust Certificates").
(b) The Purchaser or any assignee, transferee or designee of
the Purchaser shall be entitled to all scheduled payments of principal due after
the Cut-off Date, all other payments of principal due and collected after the
Cut-off Date, and all payments of interest on the Mortgage Loans allocable to
the period after the Cut-off Date. All scheduled payments of principal and
interest due on or before the Cut-off Date and collected after the Cut-off Date
shall belong to the Sellers.
(c) Pursuant to the Pooling and Servicing Agreement, the
Purchaser will assign all of its right, title and interest in and to the
Mortgage Loans, together with its rights under this Agreement, to the Trustee
for the benefit of the related Certificateholders.
SECTION 4. TRANSFER OF THE MORTGAGE LOANS.
(a) POSSESSION OF MORTGAGE FILES. The Sellers do hereby sell,
and in connection therewith hereby assign to the Purchaser, effective as of the
Closing Date, without recourse but subject to the terms of this Agreement, all
of their right, title and interest in, to and under the Mortgage Loans. The
contents of each Mortgage File not delivered to the Purchaser or to any
assignee, transferee or designee of the Purchaser on or prior to the Closing
Date are and shall be held in trust by the Sellers for the benefit of the
Purchaser or any assignee, transferee or designee of the Purchaser. Upon the
sale of the Mortgage Loans, the ownership of each Mortgage Note, the related
Mortgage and the other contents of the related Mortgage File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or that come into the possession of the
Sellers on or after the Closing Date shall immediately vest in the Purchaser and
shall be delivered as soon as practicable to the Purchaser or as otherwise
directed by the Purchaser.
(b) DELIVERY OF MORTGAGE LOAN DOCUMENTS. In connection with
such transfer and assignment, the Sellers do hereby deliver to, and deposit
with, the Purchaser or the Purchaser's designee, the documents or instruments
set forth in Section 2.01 of the Pooling and Servicing Agreement.
In instances where an original recorded Mortgage or power of
attorney cannot be delivered by a Seller to the Purchaser prior to or
concurrently with the execution and delivery of this Agreement, due to a delay
in connection with the recording of such Mortgage, such Seller may, (a) in lieu
of delivering such original recorded Mortgage or power of attorney referred to
in clause (ii) of Section 2.01 of the Pooling and Servicing Agreement, deliver
to the Purchaser a copy thereof, provided that such Seller 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) of Section 2.01 of the Pooling and Servicing Agreement to the
Purchaser, deliver such assignment to the
2
Purchaser completed except for recording information. In all such instances,
such Seller will deliver the original recorded Mortgage and completed assignment
(if applicable) to the Purchaser promptly upon receipt of such Mortgage. In
instances where an original recorded Mortgage has been lost or misplaced, such
Seller 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 (v) of Section 2.01 of the Pooling and Servicing Agreement (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 such
Seller to the Purchaser prior to or concurrently with the execution and delivery
of this Agreement because such policy is not yet available, such Seller may, in
lieu of delivering the original or a copy of such title insurance, deliver to
the Purchaser 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 Purchaser within 270 days of the Closing Date. In
instances where an original assumption, modification or buydown agreement cannot
be delivered by such Seller to the Purchaser prior to or concurrently with the
execution and delivery of this Agreement, such Seller may, in lieu of delivering
the original of such agreement, deliver a certified copy thereof.
To the extent not already recorded, the Sellers shall promptly
(and in no event later than five Business Days following the later of the
Closing Date and the date of receipt by a Seller of the recording information
for a Mortgage) submit or cause to be submitted for recording, at no expense to
the trust fund, in the appropriate public office for real property records, each
Assignment delivered to it pursuant to Section 2.01(I)(iii) of the Pooling and
Servicing Agreement. In the event that any such Assignment is lost or returned
unrecorded because of a defect therein, the applicable 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, for administrative convenience
and facilitation of servicing and to reduce closing costs, the Assignments shall
not be required to be submitted for recording (except with respect to any
Mortgage Loan located in Florida and Maryland) unless such failure to record
would result in a withdrawal or a downgrading by any Rating Agency of the rating
on any Class of Certificates; provided, however, the Sellers shall submit each
Assignment for recording, at no expense to the Trust Fund or Trustee, upon the
earliest to occur of: (i) reasonable direction by Holders of Certificates
entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master
Servicer Event of Default, (iii) the occurrence of a bankruptcy, insolvency or
foreclosure relating to the applicable Seller, (iv) the occurrence of a
servicing transfer as described in Section 7.02 of the Pooling and Servicing
Agreement and (v) with respect to any one Assignment the occurrence of a
foreclosure relating to the Mortgagor under the related Mortgage.
With respect to a maximum of approximately 1.00% 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 the Pooling and Servicing Agreement cannot be located, the obligations of the
Sellers to deliver such documents shall be deemed to be satisfied upon delivery
to the Purchaser of a photocopy of such Mortgage Note, if available, with a lost
3
note affidavit. If any of the original Mortgage Notes for which a lost note
affidavit was delivered to the Purchaser is subsequently located, such original
Mortgage Note shall be delivered to the Trustee within three Business Days.
The Sellers shall deliver or cause to be delivered to the
Purchaser 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 Purchaser are and shall be held by or on behalf of the
Sellers 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 Purchaser. Any such original
document delivered to or held by the Purchaser that is not required pursuant to
the terms of this Section to be a part of a Mortgage File, shall be delivered
promptly to the applicable Seller.
(c) ACCEPTANCE OF MORTGAGE LOANS. The documents delivered
pursuant to Section 4(b) hereof shall be reviewed by the Purchaser or any
assignee, transferee or designee of the Purchaser at any time before or after
the Closing Date (and with respect to each document permitted to be delivered
after the Closing Date within seven days of its delivery) to ascertain that all
required documents have been executed and received and that such documents
relate to the Mortgage Loans identified on the Mortgage Loan Schedule.
(d) TRANSFER OF INTEREST IN AGREEMENTS. The Purchaser has the
right to assign its interest under this Agreement, in whole or in part, to the
Trustee, as may be required to effect the purposes of the Pooling and Servicing
Agreement, without the consent of the Sellers, and the assignee shall succeed to
the rights and obligations hereunder of the Purchaser. Any expense reasonably
incurred by or on behalf of the Purchaser, the Master Servicer, the Trustee or
the Trust Administrator in connection with enforcing any obligations of either
Seller under this Agreement will be promptly reimbursed by the applicable
Seller.
(e) EXAMINATION OF MORTGAGE FILES. Prior to the Closing Date,
the Sellers shall either (i) deliver in escrow to the Purchaser or to any
assignee, transferee or designee of the Purchaser, for examination, the Mortgage
File pertaining to each Mortgage Loan, or (ii) make such Mortgage Files
available to the Purchaser or to any assignee, transferee or designee of the
Purchaser for examination; provided, however, that the Sellers shall not be
required to provide mortgagor names or addresses to any such assignee,
transferee or designee. Such examination may be made by the Purchaser or the
Trustee, and their respective designees, upon reasonable notice to each Seller
during normal business hours before the Closing Date and within 60 days after
the Closing Date. If any such person makes such examination prior to the Closing
Date and identifies any Mortgage Loans that do not conform to the requirements
of the Purchaser as described in this Agreement, such Mortgage Loans shall be
deleted from the Closing Schedule. The Purchaser may, at its option and without
notice to the Sellers, purchase all or part of the Mortgage Loans without
conducting any partial or complete examination. The fact that the Purchaser or
any person has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the rights of the Purchaser
or any assignee,
4
transferee or designee of the Purchaser to demand repurchase or other relief as
provided herein or under the Pooling and Servicing Agreement.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLERS.
Each Seller, on behalf of itself, hereby represents and
warrants, as of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is a corporation, duly organized and validly
existing and in good standing under the laws of the state of its
incorporation with full corporate power and authority to conduct its
business as presently conducted by it to the extent material to the
consummation of the transactions contemplated herein. The Seller had
the full corporate power and authority to acquire the Mortgage Loans.
The Seller has the full corporate power and authority to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the full corporate power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite corporate action
having been taken, and (assuming the due authorization, execution and
delivery hereof by the Purchaser) constitutes the valid, legal and
binding obligation of the Seller, enforceable in accordance with its
terms, except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar
laws relating to or affecting the rights of creditors generally, (B)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (C) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement which purport to provide indemnification from
securities laws liabilities;
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to any governmental authority or
court is required, under federal laws for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation by the Seller of any other transaction
contemplated hereby and by the Pooling and Servicing Agreement;
provided, however, that the Seller makes no representation or warranty
regarding federal or state securities laws in connection with the sale
or distribution of the Certificates;
(iv) No certificate of an officer, statement or other
information furnished in writing or report delivered by the Seller to
the Purchaser, any affiliate of the Purchaser or the Trustee for use in
connection with the purchase of the Mortgage Loans and the transactions
contemplated hereunder and under the Pooling and Servicing Agreement
contains any untrue statement of a material fact, or omit a material
fact necessary to make the information, certificate, statement or
report not misleading in any material respect;
(v) Neither the sale of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will
5
conflict with or results or will result in a breach of or constitutes
or will constitute a default (or an event, which with notice or lapse
of time or both, would constitute a default) under (A) any terms or
provisions of the certificate of incorporation or by-laws of the
Seller, (B) any term or provision of any material agreement, contract,
instrument or indenture, to which the Seller is a party or by which the
Seller or any of its property is bound or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or any of
its property, or results or will result in the creation or imposition
of any lien, charge or encumbrance which would have a material adverse
effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans;
(vi) The Seller has not dealt with any broker, investment
banker, agent or other person, except for the Purchaser or any of the
Purchaser's affiliates that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(vii) There is no litigation currently pending or, to the best
of the Seller's knowledge, threatened against the Seller that would
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery,
performance or enforceability of this Agreement or that would result in
a material adverse change in the financial condition of the Seller;
(viii) To the best of the Seller's knowledge, each Mortgage
Note, each Mortgage, each Assignment and any other document required to
be delivered by or on behalf of the Seller under this Agreement or the
Pooling and Servicing Agreement to the Purchaser or any assignee,
transferee or designee of the Purchaser for each Mortgage Loan has been
or will be, in accordance with Section 4(b) hereof, delivered to the
Purchaser or any such assignee, transferee or designee. To the best of
the Seller's knowledge, with respect to each Mortgage Loan, the Seller
is in possession of a complete Mortgage File in compliance with the
Pooling and Servicing Agreement, except for such documents that (A)
have been delivered (1) to the Purchaser or any assignee, transferee or
designee of the Purchaser or (2) for recording to the appropriate
public recording office and have not yet been returned or (B) are not
required to be delivered to the Purchaser or any assignee, transferee
or designee of the Purchaser until 270 days following the Closing Date
or such later date as provided in Section 4;
(ix) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in
effect in any relevant jurisdiction, except any as may have been
complied with;
(x) The form of endorsement of each Mortgage Note satisfied
the requirement, if any, of endorsement in order to transfer all right,
title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note; and each Assignment to be
delivered hereunder is, or will be, in recordable form and is, or will
be, sufficient to effect the assignment of and to transfer to the
assignee thereunder
6
the benefits of the assignor, as mortgagee or assignee thereof, under
each Mortgage to which that Assignment relates;
(xi) Immediately prior to the sale of the Mortgage Loans to
the Purchaser as herein contemplated, the Seller had good title to, and
was the sole owner of, the Mortgage Loans, and such sale validly
transfers the Mortgage Loans to the Purchaser free and clear of any
pledge, lien, encumbrance or security interest;
(xii) With respect to the Mortgage Loans, the Seller hereby
represents and warrants, as of the date hereof and as of the Closing
Date, that each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code;
(xiii) The transfer of the Mortgage Loans by the Seller was
intended to be a sale and to be reported as such under United States
generally accepted accounting principles ("GAAP") and for United States
federal income tax purposes, and meets all of the requirements for such
accounting and tax treatment (except for the GAAP requirement that the
Mortgage Loans have been legally isolated from the Seller);
(xiv) In connection with the sale of the Mortgage Loans by the
Seller, the Seller (i) was solvent at all relevant times prior thereto
and has not been rendered insolvent thereby, (ii) after giving effect
thereto, is able to pay its debts as they mature, (iii) has not been
left with unreasonably small capital for the business in which it is
engaged and proposes to be engaged, (iv) had and has no intention of
commencing any bankruptcy, insolvency or similar proceeding, (v) did
not and does not have any intent to hinder, delay or defraud any of the
undersigned's creditors, (vi) had a valid business reason therefor and
(vii) received new value and consideration therefor constituting
reasonably equivalent value and adequate and fair consideration; and
(xv) Except with respect to its retention of the Subordinate
Certificates, the Seller has not acquired, and does not intend to
acquire at any time, any direct or indirect ownership or other economic
interest in, or other right or obligation with respect to, any Mortgage
Loan or Certificate.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
RELATING TO THE MORTGAGE LOANS.
Each Seller, on behalf of itself, hereby represents and
warrants to the Purchaser that, as to each Mortgage Loan, as of the Closing Date
(or such other date specified herein) for such Mortgage Loan:
(i) The information set forth in the Mortgage Loan Schedule is
true and correct as of the Cut-off Date;
(ii) [Reserved];
(iii) (a) All payments required to be made on or before the
first day of the month prior to the month of the Closing Date, with
respect to such Mortgage Loan under the terms of the Mortgage Note have
been made and (b) the Seller has not advanced
7
funds, or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by the
Mortgage Note or Mortgage;
(iv) To the best knowledge of the Seller, there are no
delinquent taxes, ground rents, water charges, sewer rents,
assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(v) To the best knowledge of the Seller, the terms of the
Mortgage Note and (A) with respect to each Mortgage Loan, the Mortgage
and (B) with respect to each Cooperative Loan, the Security Agreement,
have not been impaired, waived, altered or modified in any respect,
except by written instruments included in the Mortgage File, recorded
in the applicable public recording office if necessary to maintain the
lien priority of the Mortgage; the substance of any such waiver,
alteration or modification does not affect coverage under any title
insurance policy, and is reflected on the Mortgage Loan Schedule. To
the best knowledge of the Seller, no instrument of waiver, alteration
or modification has been executed by the Seller or any other person in
the chain of title from the Seller, and no Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement
approved by the title insurer, to the extent required by the policy,
and the terms of which are reflected in the Mortgage Loan Schedule and
included in the related Mortgage File;
(vi) To the best knowledge of the Seller, prior to the
transfer to the Purchaser by the Seller, the Mortgage Note and (A) with
respect to each Mortgage Loan, the Mortgage and (B) with respect to
each Cooperative Loan, the Security Agreement, are not subject to any
right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the
Mortgage Note and the Mortgage, or the exercise of any right
thereunder, render the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(vii) To the best knowledge of the Seller, except with respect
to Cooperative Loans, all buildings upon the Mortgaged Property are
insured by a generally acceptable insurer against loss by fire, hazards
of extended coverage and such other hazards as are customary in the
area where the Mortgaged Property or Project is located, pursuant to
insurance policies conforming to the requirements of the Pooling and
Servicing Agreement. All such insurance policies contain a standard
mortgagee clause naming the Seller or the originator of the related
Mortgage Loan, its successors and assigns as mortgagee and all premiums
thereon have been paid. Except with respect to Cooperative Loans, if
upon origination of the Mortgage Loan, the Mortgaged Property or
Project was in an area identified on a Flood Hazard Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration is in effect
which policy conforms to the requirements of Section 3.14(a) of the
Pooling and Servicing Agreement.
8
The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) To the best knowledge of the Seller, any and all
requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity or disclosure laws
applicable to the origination and servicing of the Mortgage Loan have
been complied with;
(ix) The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any
such satisfaction, cancellation, subordination, rescission or release;
(x) The Mortgage is a valid, existing and enforceable first
lien on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (a) the lien of current real
property taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters
of the public record as of the date of recording being acceptable to
mortgage lending institutions generally and specifically referred to in
the lender's title insurance policy delivered to the originator of the
Mortgage Loan and which do not adversely affect the appraised value of
the Mortgaged Property, (c) if the Mortgaged Property consists of a
Cooperative Unit, any lien for amounts due to the cooperative housing
corporation for unpaid assessments or charges or any lien of any
assignment of rents or maintenance expenses secured by the real
property owned by the cooperative housing corporation and (d) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability
of the related Mortgaged Property. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid, existing and
enforceable first lien and first priority security interest on the
property described therein and, as of the time it contributed the
Mortgage Loan to the Purchaser, the Seller had full right to contribute
and assign the same to the Purchaser;
(xi) The Mortgage Note and (A) with respect to each Mortgage
Loan, the related Mortgage and (B) with respect to each Cooperative
Loan, the related Security Agreement, are genuine and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in accordance with its terms;
(xii) To the best knowledge of the Seller, all parties to the
Mortgage Note and the Mortgage had legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties. Except with respect to [____]% of
the Group I Mortgage Loans, [____]% of the Group II Mortgage Loans and
[____]% of the Group III Mortgage Loans, [___]% of the Group IV
Mortgage Loans, [___]% of the
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Group V Mortgage Loans and [___]% of the Group VI Mortgage Loans (in
each case by aggregated Stated Principal Balance of the related Loan
Group as of the Cut-off Date), the Mortgagor is a natural person who is
a party to the Mortgage Note and the Mortgage (or Security Agreement in
the case of a Cooperative Loan) is in an individual capacity or family
trust that is guaranteed by a natural person;
(xiii) The proceeds of the Mortgage Loan have been fully
disbursed to or for the account of the Mortgagor and there is no
obligation for the Mortgagee to advance additional funds thereunder and
any and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or
closing the Mortgage Loan and the recording of the Mortgage have been
paid, and the Mortgagor is not entitled to any refund of any amounts
paid or due to the Mortgagee pursuant to the Mortgage Note or Mortgage;
(xiv) As of the Closing Date and prior to the sale of the
Mortgage Loan to the Purchaser, the Seller was the sole legal,
beneficial and equitable owner of the Mortgage Note and (A) with
respect to each Mortgage Loan, the Mortgage and (B) with respect to
each Cooperative Loan, the Security Agreement, and has full right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of
any encumbrance, equity, lien, pledge, charge, claim or security
interest;
(xv) To the best knowledge of the Seller, all parties which
have had any interest in (A) with respect to any Mortgage Loan, the
Mortgage and (B) with respect to any Cooperative Loan, the Security
Agreement, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such
interest, were) in compliance (directly, or through an affiliate or
subservicer) with any and all applicable "doing business" and licensing
requirements of the laws of the state, or, if any such party was not in
compliance with such requirements, such noncompliance will not
materially and adversely affect the Purchaser's interest in the
Mortgage Loan;
(xvi) Except with respect to Cooperative Loans, the Mortgage
Loan is covered by either (i) a title insurance policy, issued by a
title insurer qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring (subject to the exceptions
contained in (x)(a) and (b) above) the Seller or the originator of the
related Mortgage Loan, its successors and assigns as to the first
priority lien of the Mortgage in the original principal amount of the
Mortgage Loan or (ii) an attorney's title opinion, if customary in the
related jurisdiction where the Mortgaged Property is located. To the
best of the Seller's knowledge, such lender's title insurance policy
affirmatively insures ingress and egress to and from the Mortgaged
Property, and against encroachments by or upon the Mortgaged Property
or any interest therein. To the best of the Seller's knowledge, the
Seller is the sole insured of such lender's title insurance policy, and
such lender's title insurance policy is in full force and effect and
will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. To the best of the
Seller's knowledge, no claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance
10
policy, except as the title insurance policy may be altered by a
modification of the Mortgage Loan;
(xvii) To the best of the Seller's knowledge, there is no
default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration,
and the Seller has not waived any default, breach, violation or event
of acceleration;
(xviii) To the best of the Seller's knowledge, there are no
mechanics' or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could
give rise to such lien) affecting the related Mortgaged Property which
are or may be liens prior to, or equal or coordinate with, the lien of
the related Mortgage;
(xix) Except as noted in any related title insurance policy,
all improvements which were considered in determining the appraised
value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property;
(xx) The Mortgage Loan was originated by the Seller or by a
savings and loan association, a savings bank, a commercial bank or
similar banking institution which is supervised and examined by a
federal or state authority, or by a mortgagee approved as such by the
Secretary of HUD;
(xxi) Except with respect to any interest-only Mortgage Loan
or any construction to permanent Mortgage Loan, principal payments on
the Mortgage Loan commenced no more than two months after the proceeds
of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Rate. The Mortgage Note is payable on the day of each
month set forth in the Mortgage Loan Schedule and in Monthly Payments
which will amortize the Stated Principal Balance of the Mortgage Loan
over its remaining term at the Mortgage Rate. Interest on the Mortgage
Loan is calculated on the basis of a 360-day year consisting of twelve
30-day months;
(xxii) The origination and collection practices used by the
Seller with respect to each Mortgage Note and Mortgage have been in all
respects legal, proper, prudent and customary in the mortgage
origination and servicing industry. The Mortgage Loan has been serviced
by the Master Servicer (directly or through a subservicer) and any
predecessor servicer in accordance with the terms of the Mortgage Note;
(xxiii) To the best knowledge of the Seller, (A) with respect
to each Mortgage Loan, the Mortgaged Property and (B) with respect to
each Cooperative Loan, the related Cooperative Unit, is free of damage
and waste and there is no proceeding pending for the total or partial
condemnation thereof;
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(xxiv) The Mortgage and related Mortgage Note contain
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby,
including, (a) in the case of a Mortgage designated as a deed of trust,
by trustee's sale and (b) otherwise by judicial foreclosure. To the
best of the Seller's knowledge, there is no homestead or other
exemption available to the Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the right
to foreclose the Mortgage. The Mortgagor has not notified the Seller
and the Seller has no knowledge of any relief requested or allowed to
the Mortgagor under the Soldiers and Servicemembers Civil Relief Act;
(xxv) The Mortgage Note is not secured by any collateral
(other than a personal guarantee, if applicable) except the lien of the
corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage
referred to in (x) above;
(xxvi) The Mortgage File contains an appraisal of the related
Mortgaged Property made and signed, prior to the approval of the
Mortgage Loan application, by a qualified appraiser, approved by the
Seller, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan and who would meet the minimum qualifications of ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac or who met the minimum qualifications approved by
the institution that originated the related Mortgage Loan;
(xxvii) To the best of the Seller's knowledge, in the event
the Mortgage constitutes a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(xxviii) To the best of the Seller's knowledge, no Mortgage
Loan contains provisions pursuant to which Monthly Payments are (a)
paid or partially paid with funds deposited in any separate account
established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, (b) paid by any source other than the Mortgagor or (c)
contains any other similar provisions which may constitute a "buydown"
provision. The Mortgage Loans are not graduated payment mortgage loans
and the Mortgage Loans do not have shared appreciation or other
contingent interest features;
(xxix) To the best of the Seller's knowledge, if the Mortgage
Loan is a Refinanced Mortgage Loan, the Mortgagor has received all
disclosure and rescission materials required by applicable law with
respect to the making of a Refinanced Mortgage Loan, and evidence of
such receipt is and will remain in the Mortgage File;
(xxx) With respect to each Mortgage Loan, either (i) it was
not made in connection with the construction or rehabilitation of a
Mortgaged Property or (ii) as of the Cut-off Date, the construction
phase of such Mortgage Loan has expired;
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(xxxi) All documents required to be delivered with respect to
each Mortgage Loan or Cooperative Loan pursuant to the Pooling and
Servicing Agreement, have been or will be delivered to the Trustee in
compliance with the specific requirements of the Pooling and Servicing
Agreement;
(xxxii) To the best knowledge of the Seller, (A) with respect
to each Mortgage Loan, the Mortgaged Property and (B) with respect to
each Cooperative Loan, the Cooperative Unit, is lawfully occupied under
applicable law; all inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy, have been
made or obtained from the appropriate authorities;
(xxxiii) The Assignment is or will be in recordable form and
is or will be acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(xxxiv) Any principal advances made to the Mortgagor prior to
the Cut-off Date have been consolidated with the outstanding principal
amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is
expressly insured as having first lien priority by a title insurance
policy or an endorsement to the policy insuring the mortgagee's
consolidated interest. The consolidated principal amount does not
exceed the original principal amount of the Mortgage Loan;
(xxxv) The Mortgage Loan was not intentionally selected by the
Seller in a manner intended to adversely affect the interest of the
Purchaser;
(xxxvi) [Reserved];
(xxxvii) Except with respect to any Cooperative Loan, the
Mortgaged Property consists of (i) a parcel of real property with a
single family residence erected thereon, or (ii) a two to four-family
dwelling, or (iii) an individual condominium unit in a low-rise or
high-rise condominium project, or (iv) an individual unit in a planned
unit development. Except with respect to any Cooperative Loan, the
Mortgaged Property is improved with a Residential Dwelling. To the best
knowledge of the Seller, the Mortgaged Property does not consist of
mobile homes or manufactured homes (as defined in the ▇▇▇▇▇▇ Mae
Originator-Servicer's Guide), except when the appraisal indicates that
the home is of comparable construction to a stick or beam construction
home, is readily marketable, has been permanently affixed to the site
and is not in a mobile home "park." Except with respect to any
Cooperative Loan, each Mortgaged Property is a fee simple estate;
(xxxviii)As of the Closing Date, the Loan-to-Value Ratio of
any Mortgage Loan was not greater than 95.00%;
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(xxxix) The Mortgage, and if required by applicable law the
related Mortgage Note, contains a provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the
event that the Mortgaged Property is sold or transferred without the
prior written consent of the Mortgagee, at the option of the Mortgagee;
(xl) To the best knowledge of the Seller, no error, omission,
misrepresentation, negligence, fraud or similar occurrence with respect
to a Mortgage Loan has taken place on the part of any person,
including, without limitation, the Mortgagor, any appraiser, any
builder or developer, or any other party involved in the origination of
the Mortgage Loan or in the application of any insurance in relation to
such Mortgage Loan;
(xli) To the best knowledge of the Seller, with respect to any
assumption, modification, consolidation or extension agreements, such
agreement has been recorded by the Seller if required under applicable
law;
(xlii) With respect to each Cooperative Loan, a cooperative
lien search has been made by a company competent to make the same and
qualified to do business in the jurisdiction where the Cooperative Unit
is located;
(xliii) With respect to each Cooperative Loan, (i) the terms
of the related proprietary lease is longer than the terms of the
Cooperative Loan, (ii) there is no provision in any proprietary lease
which requires the Mortgagor to offer for sale the Cooperative Assets
owned by such Mortgagor first to the Cooperative, (iii) there is no
prohibition in any proprietary lease against pledging the Cooperative
Assets or assigning the proprietary lease and (iv) the recognition
agreement is on a form of agreement published by the Aztech Document
Systems, Inc. or includes provisions which are no less favorable to the
lender than those contained in such agreement;
(xliv) With respect to each Cooperative Loan, each original
UCC financing statement, continuation statement or other governmental
filing or recordation necessary to create or preserve the perfection
and priority of the first priority lien and security interest in the
Cooperative Assets and proprietary lease has been timely and properly
made. Any security agreement, chattel mortgage or equivalent document
related to the Cooperative Loan and delivered to the Mortgagor or its
designee establishes in the Mortgagor a valid and subsisting perfected
first lien on and security interest in the Mortgaged Property described
therein, and the Mortgagor has full right to sell and assign the same;
(xlv) With respect to each Cooperative Loan, each acceptance
of assignment and assumption of lease agreement contains enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization of the benefits of the security
provided thereby. The acceptance of assignment and assumption of lease
agreement contains an enforceable provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Note in the
event the Cooperative Unit is transferred or sold without the consent
of the holder thereof;
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(xlvi) Each Mortgage Loan at origination complied in all
material respects with applicable local, state and federal laws,
including, without limitation, usury, equal credit opportunity,
predatory and abusive lending laws, real estate settlement procedures,
truth-in-lending and disclosure laws, and consummation of the
transactions contemplated hereby will not involve the violation of any
such laws;
(xlvii) No Mortgage Loan is a "high cost", a "covered" or any
other similarly designated loan as defined by applicable local, state
and federal predatory and abusive lending law which contains provisions
that may result in liability to the purchaser or assignee of the loan;
(xlviii) None of the Mortgage Loans are covered by the Home
Ownership and Equity Protection Act of 1994 ("HOEPA");
(xlix) No Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act; and
(l) No Mortgage Loan is a high cost loan or a covered loan, as
applicable (as such terms are defined in Standard & Poor's LEVELS
Version 5.6 Glossary Revised, Appendix E).
SECTION 7. REPURCHASE OBLIGATION FOR DEFECTIVE DOCUMENTATION
AND FOR BREACH OF REPRESENTATION AND WARRANTY.
(a) The representations and warranties contained in Section 6
shall not be impaired by any review and examination of loan files or other
documents evidencing or relating to the Mortgage Loans or any failure on the
part of the Seller or the Purchaser to review or examine such documents and
shall inure to the benefit of any assignee, transferee or designee of the
Purchaser, including the Trustee for the benefit of holders of the Certificates
evidencing an interest in all or a portion of the Mortgage Loans. With respect
to the representations and warranties contained herein which are made to the
knowledge or the best of knowledge of the Seller, or as to which the Seller has
no knowledge, if it is discovered that the substance of any such representation
and warranty was inaccurate as of the date such representation and warranty was
made or deemed to be made, and such inaccuracy materially and adversely affects
the value of the related Mortgage Loan or the interest therein of the Purchaser
or the Purchaser's assignee, transferee or designee, then notwithstanding the
lack of knowledge by the Seller with respect to the substance of such
representation and warranty being inaccurate at the time the representation and
warranty was made, the Seller shall take such action described in the following
paragraph in respect of such Mortgage Loan.
Upon discovery by the Sellers, the Purchaser or any assignee,
transferee or designee of the Purchaser of any materially defective document in,
or that any material document was not transferred by the Sellers as part of any
Mortgage File or of a breach of any of the representations and warranties
contained in Section 5 or Section 6 that materially and adversely affects the
value of any Mortgage Loan, the Purchaser or the Purchaser's assignee,
transferee or designee or the party discovering the breach shall give prompt
written notice to the Sellers. Within ninety (90) days of its discovery or its
receipt of notice of any such missing
15
documentation which was not transferred to the Purchaser as described above or
materially defective documentation or any breach of a representation and
warranty, the Sellers promptly shall deliver such missing document or cure such
defect or breach in all material respects, or in the event the Sellers cannot
deliver such missing document or such defect or breach cannot be cured, the
Sellers shall within ninety (90) days of its discovery or receipt of notice,
either (i) repurchase the affected Mortgage Loan at the Purchase Price or (ii)
pursuant to the provisions of the Pooling and Servicing Agreement, cause the
removal of such Mortgage Loan from the Trust Fund and substitute one or more
Qualified Substitute Mortgage Loans. With respect to Mortgage Loans where the
Mortgage File is missing a material document that was transferred from the
Sellers to the Purchaser, the Purchaser or the Purchaser's assignee, transferee
or designee, the party discovering such breach shall give prompt written notice
to the Sellers. The Sellers shall amend the Closing Schedule to reflect the
withdrawal of such Mortgage Loan from the terms of this Agreement and the
Pooling and Servicing Agreement and the addition, if any, of a Qualified
Substitute Mortgage Loan. The Sellers shall deliver to the Purchaser such
amended Closing Schedule and shall deliver such other documents as are required
by this Agreement or the Pooling and Servicing Agreement within five (5) days of
any such amendment. Any repurchase pursuant to this Section 7(a) shall be
accomplished by remittance to the Master Servicer for deposit in the Collection
Account of the amount of the Purchase Price (as defined in the Pooling and
Servicing Agreement) in accordance with Section 2.03 of the Pooling and
Servicing Agreement. Any repurchase or substitution required by this Section
shall be made in a manner consistent with Section 2.03 of the Pooling and
Servicing Agreement.
(b) It is understood and agreed that the obligations of the
Sellers set forth in this Section 7 to cure, repurchase or substitute for a
defective Mortgage Loan constitute the sole remedies of the Purchaser against
the Sellers, respecting a missing or defective document or a breach of the
representations and warranties contained in Section 5 or Section 6. It is
understood and agreed that the obligations of the Sellers set forth in this
Section 7 to repurchase or substitute for a Mortgage Loan as to which a material
document is missing constitute the sole remedies of the Purchaser against the
Seller respecting a missing document.
SECTION 8. CLOSING; PAYMENT FOR THE MORTGAGE LOANS. The
closing of the purchase and sale of the Mortgage Loans shall be held at the New
York City office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ at 10:00 AM New York City time on
the Closing Date.
The closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Sellers
under this Agreement shall be true and correct in all material respects as of
the date as of which they are made and no event shall have occurred which, with
notice or the passage of time, would constitute a default under this Agreement;
(b) The Purchaser shall have received, or the attorneys of the
Purchaser shall have received in escrow (to be released from escrow at the time
of closing), all Closing Documents as specified in Section 9 of this Agreement,
in such forms as are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required pursuant to the
respective terms thereof;
16
(c) The Sellers shall have delivered or caused to be delivered
and released to the Purchaser or to its designee, all documents (including
without limitation, the Mortgage Loans) required to be so delivered by the
Purchaser; and
(d) All other terms and conditions of this Agreement shall
have been complied with in all material respects.
Subject to the foregoing conditions, the Purchaser shall
deliver or cause to be delivered to the Sellers on the Closing Date, against
delivery and release by the Sellers to the Trustee of all documents required
pursuant to the Pooling and Servicing Agreement, the consideration for the
Mortgage Loans as specified in Section 3 of this Agreement, by delivery to UST,
on behalf of the Sellers, of the Purchase Price.
SECTION 9. CLOSING DOCUMENTS. Without limiting the generality
of Section 8 hereof, the closing shall be subject to delivery of each of the
following documents:
(a) An Officers' Certificate of each Seller, dated the Closing
Date, upon which the Purchaser and Citigroup Global Markets Inc. (the
"Underwriter") may rely, in a form acceptable to the Purchaser, and attached
thereto copies of the certificate of incorporation, by-laws and certificate of
good standing of each Seller;
(b) An Opinion of Counsel of each Seller, dated the Closing
Date and addressed to the Purchaser and the Underwriters, in a form acceptable
to the Purchaser;
(c) Such opinions of counsel as the Rating Agencies or the
Trustee may request in connection with the sale of the Mortgage Loans by the
Sellers to the Purchaser or the Seller's execution and delivery of, or
performance under, this Agreement;
(d) A letter from Deloitte & Touche, LLP, certified public
accountants, dated the date hereof and to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Purchaser's Prospectus Supplement, dated October 25, 2004 under the subheadings
"Summary of Prospectus Supplement--The Mortgage Loans," "Risk Factors" (to the
extent of information regarding the Mortgage Loans therein) and "The Mortgage
Pool" agrees with the records of the Sellers;
(e) A letter from Deloitte & Touche, LLP, certified public
accountants, dated the date hereof and to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Purchaser's Prospectus Supplement, dated October 25, 2004 under the subheading
"Pooling and Servicing Agreement--The Master Servicer" agrees with the records
of the Master Servicer; and
(f) Such further information, certificates, opinions and
documents as the Purchaser or the Underwriter may reasonably request.
SECTION 10. COSTS. The Sellers shall pay (or shall reimburse
the Purchaser or any other Person to the extent that the Purchaser or such other
Person shall pay) all necessary
17
and reasonable costs and expenses incurred directly in connection with the
transfer and delivery of the Mortgage Loans, including without limitation,
recording fees, fees for title policy endorsements and continuations and the
fees for recording Assignments, the costs and expenses of printing (or otherwise
reproducing) and delivering this Agreement, the Pooling and Servicing Agreement,
the Certificates, the prospectus, Prospectus Supplement, and private placement
memorandum relating to the Certificates and other related documents, the initial
fees, costs and expenses of the Trustee set forth in an engagement letter
delivered to UST by the Trustee, the fees and expenses of the Depositor's
counsel in connection with the preparation of all documents relating to the
securitization of the Mortgage Loans, the filing fee charged by the Securities
and Exchange Commission for registration of the Certificates, the fees charged
by any rating agency to rate the Certificates and the ongoing expenses of the
Rating Agencies. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
SECTION 11. PREPARATION OF A SUPPLEMENT WRAP.
(a) To the extent the Sellers propose to sell any of the
Sellers' Certificates, they shall provide prior notice of such intention to the
Purchaser. Upon receipt of such notice the Purchaser and Sellers shall determine
whether information included in the Prospectus Supplement is required to be
updated. If the Seller and Purchaser determine that such information is required
to be updated, the parties shall compete a supplement to the Prospectus
Supplement (the "Supplement Wrap"), which shall include (to the extent
applicable), but not limited to, the following: updated delinquency and
foreclosure information of the Sellers, information concerning any recent
developments relating to the Sellers and updated information relating to the
Mortgage Loans.
(b) In connection with the preparation of any Supplemental
Wrap, the Sellers and the Purchaser shall provide the information attributed to
such party. The Sellers agree that they will not sell any of the Sellers'
Certificates unless the Purchaser and the Sellers have mutually agreed upon a
Supplemental Wrap and any appropriate ancillary documents.
SECTION 12. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST.
The sale and delivery on the Closing Date of the Mortgage Loans described on the
Mortgage Loan Schedule in accordance with the terms and conditions of this
Agreement is mandatory. It is specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an award of
money damages would be insufficient to compensate the Purchaser for the losses
and damages incurred by the Purchaser in the event of the Sellers' failure to
deliver the Mortgage Loans on or before the Closing Date. The Sellers hereby
grants to the Purchaser a lien on and a continuing security interest in each
Seller's interest in each Mortgage Loan and each document and instrument
evidencing each such Mortgage Loan to secure the performance by each Seller of
its obligation hereunder, and each Seller agrees that it holds such Mortgage
Loans in custody for the Purchaser, subject to the Purchaser's (i) right, prior
to the Closing Date, to reject any Mortgage Loan to the extent permitted by this
Agreement and (ii) obligation to deliver or cause to be delivered the
consideration for the Mortgage Loans pursuant to Section 8 hereof. Any Mortgage
Loans rejected by the Purchaser shall concurrently therewith be released from
the security interest created hereby. Each Seller agrees that, upon acceptance
of the Mortgage Loans by the Purchaser or its designee and delivery of payment
to UST, on behalf the Sellers, that its
18
security interest in the Mortgage Loans shall be released. All rights and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by law or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
Notwithstanding the foregoing, if on the Closing Date, either
(i) each of the conditions set forth in Section 8 hereof shall have been
satisfied and the Purchaser shall not have paid or caused to be paid the
Purchase Price, or (ii) any such condition shall not have been waived or
satisfied and the Purchaser determines not to pay or cause to be paid the
Purchase Price, the Purchaser shall immediately effect the redelivery of the
Mortgage Loans, if delivery to the Purchaser has occurred and the security
interest created by this Section 12 shall be deemed to have been released;
provided, however, in the case of any such nonpayment described in clause (i)
above, such redelivery shall not diminish any other rights or remedies that the
Seller may have against the Purchaser.
SECTION 13. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing, if
to the Purchaser, addressed to the Purchaser at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Finance Group, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Sellers, addressed to them at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Loan Sale Servicing Section, or to such other address
as the Sellers may designate in writing to the Purchaser.
SECTION 14. SEVERABILITY OF PROVISIONS. Any part, provision,
representation or warranty of this Agreement which is prohibited or which is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement which
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 15. AGREEMENT OF PARTIES. The Sellers and the
Purchaser each agree to execute and deliver such instruments and take such
actions as either of the others may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement and
the Pooling and Servicing Agreement.
SECTION 16. SURVIVAL. The Sellers agree that the
representations, warranties and agreements made by each Seller herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the Purchaser, notwithstanding any investigation heretofore or
hereafter made by the Purchaser or on its behalf, and that the representations,
warranties and agreements made by the Seller herein or in any such certificate
or
19
other instrument shall survive the delivery of and payment for the Mortgage
Loans and shall continue in full force and effect, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes and notwithstanding
subsequent termination of this Agreement, the Pooling and Servicing Agreement or
the Trust Fund.
SECTION 17. Reserved.
SECTION 18. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (INCLUDING THE CHOICE OF LAW
PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
SECTION 19. MISCELLANEOUS. This Agreement may be executed in
two or more counterparts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Sellers to the Purchaser as provided in
Section 4 hereof be, and be construed as, a sale of the Mortgage Loans by the
Sellers to the Purchaser and not as a pledge of the Mortgage Loans by the
Sellers to the Purchaser to secure a debt or other obligation of the Sellers.
However, in the event that, notwithstanding the aforementioned intent of the
parties, the Mortgage Loans are held to be property of the Sellers, then, (a) it
is the express intent of the parties that such conveyance be deemed a pledge of
the Mortgage Loans by the Sellers to the Purchaser to secure a debt or other
obligation of the Sellers and (b) (1) this Agreement shall also be deemed to be
a security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code; (2) the conveyance provided for in Section 4 hereof
shall be deemed to be a grant by the Sellers to the Purchaser of a security
interest in all of each Seller's right, title and interest in and to the
Mortgage Loans and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Collection Account whether
in the form of cash, instruments, securities or other property; (3) the
possession by the Purchaser or its agent of Mortgage Notes, the related
Mortgages and such other items of property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the New York Uniform Commercial Code; and (4) notifications to
persons holding such property, and acknowledgments,
20
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to Section 4(d) hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Sellers and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement and the Pooling and Servicing Agreement.
[Signatures appear on the following page]
21
IN WITNESS WHEREOF, the Purchaser and the Sellers have caused
their names to be signed by their respective officers thereunto duly authorized
as of the date first above written.
CITIGROUP MORTGAGE LOAN TRUST INC.
By: ___________________________________
Name:
Title:
UST MORTGAGE COMPANY
By: ___________________________________
Name:
Title:
CO-OP HOLDINGS, INC.
By: __________________________________
Name:
Title:
EXHIBIT E-1
-----------
REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
Name of Mortgagor: ________________________
Master Servicer
Loan No.: ________________________________
TRUSTEE/CUSTODIAN
Name: _____________________________________
Address: __________________________________
__________________________________
Trustee/Custodian
Mortgage File No.: ________________________
TRUST ADMINISTRATOR
Name:______________________________________
Address: __________________________________
__________________________________
DEPOSITOR
Name: CITIGROUP MORTGAGE LOAN
TRUST INC.
Address: __________________________________
__________________________________
Certificates: Mortgage Pass-Through Certificates, Series 2004-UST1
The undersigned Master Servicer hereby acknowledges that it
has received from _______________________, as Trustee for the Holders of
Mortgage Pass-Through Certificates, Series 2004-UST1 the documents referred to
below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement, dated as of October 1, 2004, among the Trustee, the Trust
Administrator, the Depositor and the Master Servicer (the "Pooling and Servicing
Agreement").
( ) Promissory Note dated _______________, 20__, in the
original principal sum of $__________, made by _____________________, payable
to, or endorsed to the order of, the Trustee.
E-1-1
( ) Mortgage recorded on _________________________ as
instrument no. ____________________ in the County Recorder's Office of the
County of _________________, State of __________________ in book/reel/docket
_________________ of official records at page/image _____________.
( ) Deed of Trust recorded on ___________________ as
instrument no. ________________ in the County Recorder's Office of the County of
_________________, State of ____________________ in book/reel/docket
_________________ of official records at page/image ______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee,
recorded on ___________________ as instrument no. _________ in the County
Recorder's Office of the County of _______________, State of
_______________________ in book/reel/docket ____________ of official records at
page/image ____________.
( ) Other documents, including any amendments, assignments or
other assumptions of the Mortgage Note or Mortgage.
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
The undersigned Master Servicer hereby acknowledges and agrees
as follows:
(1) The Master Servicer shall hold and retain possession of
the Documents in trust for the benefit of the Trustee and the Trust
Administrator, solely for the purposes provided in the Agreement.
(2) The Master Servicer shall not cause or permit the
Documents to become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor shall the Master
Servicer assert or seek to assert any claims or rights of setoff to or against
the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the Documents
has been liquidated and the proceeds thereof have been remitted to the
Collection Account and except as expressly provided in the Agreement.
E-1-2
(4) The Documents and any proceeds thereof, including any proceeds of proceeds,
coming into the possession or control of the Master Servicer shall at all times
be earmarked for the account of the Trustee, and the Master Servicer shall keep
the Documents and any proceeds separate and distinct from all other property in
the Master Servicer's possession, custody or control.
Dated:
UST MORTGAGE COMPANY
By: ___________________________________
Name:
Title:
E-1-3
EXHIBIT E-2
-----------
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full]
OFFICER'S CERTIFICATE AND TRUST RECEIPT
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-UST1
___________________________________________________ HEREBY CERTIFIES THAT HE/SHE
IS AN OFFICER OF THE MASTER SERVICER, HOLDING THE OFFICE SET FORTH BENEATH
HIS/HER SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN MADE.
LOAN NUMBER: _________________ BORROWER'S NAME:______________________
COUNTY: ______________________
WE HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
WHICH ARE REQUIRED TO BE DEPOSITED IN THE COLLECTION ACCOUNT PURSUANT TO SECTION
3.10 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
______________________________ DATED:______________________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
E-2-1
EXHIBIT F-1
-----------
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Citigroup Mortgage Loan Trust, Series 2004-UST1,
Mortgage Pass-Through Certificates, Class ___,
representing a ___% Class ___ Percentage Interest
-------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by ________________ (the
"Transferor") to ________________ (the "Transferee") of the captioned mortgage
pass-through certificates (the "Certificates"), the Transferor hereby certifies
as follows:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, (e) has taken any other action, that (in the case of each of
subclauses (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or
would render the disposition of any Certificate a violation of Section 5 of the
1933 Act or any state securities law or would require registration or
qualification pursuant thereto. The Transferor will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate. The Transferor will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of
October 1, 2004, among Citigroup Mortgage Loan Trust Inc. as Depositor, UST
Mortgage Company as Master Servicer, U.S. Bank National Association as Trustee
and Citibank, N.A. as Trust Administrator (the "Pooling and Servicing
Agreement"), pursuant to which Pooling and Servicing Agreement the Certificates
were issued.
F-1-1
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By: ________________________________
Name:
Title:
F-1-2
FORM OF TRANSFEREE REPRESENTATION LETTER
[Date]
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Citigroup Mortgage Loan Trust, Series 2004-UST1,
Mortgage Pass-Through Certificates, Class ___,
representing a ___% Percentage Interest
------------------------------------------------
Ladies and Gentlemen:
In connection with the purchase from ______________________
(the "Transferor") on the date hereof of the captioned trust certificates (the
"Certificates"), _______________ (the "Transferee") hereby certifies as follows:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "1933 Act") and has completed either of the forms of certification
to that effect attached hereto as Annex 1 or Annex 2. The Transferee is aware
that the sale to it is being made in reliance on Rule 144A. The Transferee is
acquiring the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement referred to below, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
F-1-3
All capitalized terms used but not otherwise defined herein
have the respective meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of October 1, 2004, among Citigroup Mortgage Loan Trust Inc.
as Depositor, UST Mortgage Company as Master Servicer, U.S. Bank National
Association as Trustee and Citibank, N.A. as Trust Administrator, pursuant to
which the Certificates were issued.
[TRANSFEREE]
By: _________________________________
Name:
Title:
F-1-4
ANNEX 1 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE
---------------------------------------------------
144A [For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and Citibank, N.A., as Trust Administrator, with
respect to the mortgage pass-through certificates (the "Certificates") described
in the Transferee Certificate to which this certification relates and to which
this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because (i) the
Transferee owned and/or invested on a discretionary basis
$______________________1 in securities (except for the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ BANK. The Transferee (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
---------------------------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities. $25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF WHICH IS ATTACHED HERETO.
F-1-5
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974, as
amended.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S. or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii) securities
owned but subject to a repurchase agreement and (viii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee and did not
include any of the securities referred to in the preceding paragraph. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", the
Transferee agrees that, in connection with any purchase of securities sold to
the Transferee for the account of a third party (including any separate account)
in reliance on Rule 144A, the Transferee will only purchase for the account of a
third party that at the time is a "qualified institutional buyer" within the
meaning of Rule 144A. In addition, the Transferee agrees that the Transferee
will not purchase securities for a third party unless the Transferee has
obtained a current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set forth
in Rule 144A.
F-1-6
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
Dated:
____________________________________
Print Name of Transferee
By:_________________________________
Name:
Title:
F-1-7
ANNEX 2 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and Citibank, N.A., as Trust Administrator, with
respect to the mortgage pass- through certificates (the "Certificates")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the entity purchasing the
Certificates (the "Transferee") or, if the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because the Transferee is part of a Family
of Investment Companies (as defined below), is such an officer of the investment
adviser (the "Adviser").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as defined in Rule 144A because
(i) the Transferee is an investment company registered under the Investment
Company Act of 1940, as amended, and (ii) as marked below, the Transferee alone,
or the Transferee's Family of Investment Companies, owned at least $100,000,000
in securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used.
____ The Transferee owned $___________________ in securities (other
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
F-1-8
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Dated:
___________________________________
Print Name of Transferee or Advisor
By:________________________________
Name:
Title:
IF AN ADVISER:
___________________________________
Print Name of Transferee
F-1-9
FORM OF TRANSFEREE REPRESENTATION LETTER
----------------------------------------
The undersigned hereby certifies on behalf of the purchaser
named below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as
defined in Rule 144A, ("Rule 144A") under the Securities Act of 1933, as
amended.
3. As of the date specified below (which is not earlier than
the last day of the Purchaser's most recent fiscal year), the amount of
"securities", computed for purposes of Rule 144A, owned and invested on a
discretionary basis by the Purchaser was in excess of $100,000,000.
Name of Purchaser
_______________________________
By:____________________________
Name:
Title:
Date of this certificate:
Date of information provided in paragraph 3
F-1-10
EXHIBIT F-2
-----------
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ______________________ of __________________________
(the "Owner") a corporation duly organized and existing under the laws of
______________, the record owner of Citigroup Mortgage Loan Trust, Series
2004-UST1, Mortgage Pass-Through Certificates, Class R Certificates, (the "Class
R Certificates"), on behalf of whom I make this affidavit and agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement pursuant to which the
Class R Certificates were issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of
____________, 20__ and (ii) is acquiring the Class R Certificates for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. For this purpose, a "disqualified organization"
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986, as amended, that applies to all transfers of the
Class R Certificates after March 31, 1988; (ii) that such tax would be on the
transferor or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a non-Permitted Transferee, on the agent;
(iii) that the person otherwise liable for the tax shall be relieved of
liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is a Permitted Transferee and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
each of the Class R Certificates may be a "noneconomic residual interest" within
the meaning of proposed Treasury regulations promulgated under the Code and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to impede the assessment or collection of
tax.
4. The Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificates if, at any time during the taxable year
of the pass-through entity, a
F-2-1
non-Permitted Transferee is the record holder of an interest in such entity.
(For this purpose, a "pass-through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives.)
5. The Owner is aware that the Trustee will not register the
transfer of any Class R Certificate unless the transferee, or the transferee's
agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. The Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is
_________________.
8. The Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(in particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) which authorize
the Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02(d)); and that the Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. The Owner is not acquiring and will not transfer the Class
R Certificates in order to impede the assessment or collection of any tax.
10. The Owner anticipates that it will, so long as it holds
the Class R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class R Certificates that the
Owner intends to pay taxes associated with holding such Class R Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class R Certificates.
11. The Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class R Certificates.
12. The Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
13. The Owner is not acquiring the Class R Certificates with
the intent to transfer the Class R Certificates to any person or entity that
will not have sufficient assets to pay any taxes owed by the holder of such
Class R Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain outstanding.
14. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class R Certificate were issued and will not
F-2-2
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class R Certificates to
impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of the Class R Certificates; (ii) may
become insolvent or subject to a bankruptcy proceeding for so long as the Class
R Certificates remains outstanding; and (iii) is not a "Permitted Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States may be included in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
F-2-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
__________, 20__.
[OWNER]
By:__________________________
Name:
Title: [Vice] President
ATTEST:
By:_________________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
_____________________________________
Notary Public
County of ____________________
State of ______________________
My Commission expires:
F-2-4
FORM OF TRANSFEROR AFFIDAVIT
----------------------------
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ____________________ of ____________________________
(the "Owner"), a corporation duly organized and existing under the laws of
______________, on behalf of whom I make this affidavit.
2. The Owner is not transferring the Class R Certificates (the
"Residual Certificates") to impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is
the proposed transferee (the "Purchaser") of the Residual Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as holder
of the Residual Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Residual Certificates remain
outstanding and (iii) is not a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to
the Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit F-2. The Owner does not know or
believe that any representation contained therein is false.
5. At the time of transfer, the Owner has conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Owner has determined that the Purchaser has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Owner understands that the transfer of a
Residual Certificate may not be respected for United States income tax purposes
(and the Owner may continue to be liable for United States income taxes
associated therewith) unless the Owner has conducted such an investigation.
6. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
F-2-5
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
___________, 20__.
[OWNER]
By:_____________________________
Name:
Title: [Vice] President
ATTEST:
By:______________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
________________________________
Notary Public
County of _________________
State of ___________________
My Commission expires:
F-2-6
EXHIBIT G
---------
FORM OF CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________, 20__
Citigroup Mortgage Loan Trust Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Citigroup Mortgage Loan Trust, Series 2004-UST1, Mortgage
Pass-Through Certificates, Class ___
DEAR SIRS:
_______________________ (the "Transferee") intends to acquire
from _____________________ (the "Transferor") $____________ Initial Certificate
Principal Balance of Citigroup Mortgage Loan Trust, Series 2004-UST1, Mortgage
Pass-Through Certificates, Class ___ (the "Certificates"), issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated as
of October 1, 2004, among Citigroup Mortgage Loan Trust Inc. as depositor (the
"Depositor"), UST Mortgage Company as master servicer (the "Master Servicer"),
U.S. Bank National Association as trustee (the "Trustee") and Citibank, N.A. as
trust administrator (the "Trust Administrator"). Capitalized terms used herein
and not otherwise defined shall have the meanings assigned thereto in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to, and covenants with the Depositor, the Trustee, the Trust
Administrator and the Master Servicer that:
The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement, including individual retirement accounts and
annuities, ▇▇▇▇▇ plans and bank collective investment funds and insurance
company general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code") (any of the
foregoing, a "Plan"), (ii) are not being acquired with "plan assets" of a Plan
within the meaning of the Department of Labor ("DOL") regulation, 29 C.F.R. ss.
2510.3-101, and (iii) will not be transferred to any entity that is deemed to be
investing in plan assets within the meaning of the DOL regulation at 29 C.F.R.
ss. 2510.3-101.
G-1
Very truly yours,
_______________________________
By:____________________________
Name:
Title:
G-2
EXHIBIT H
---------
FORM OF REPORT PURSUANT TO SECTION 4.07
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
Annual Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (Fee Required)
For fiscal year ended ________________
Commission file number: 333-_______
CITIGROUP MORTGAGE LOAN TRUST INC.
(as depositor under the Pooling and Servicing Agreement,
dated as of October 1, 2004, providing for the issuance of
Mortgage Pass-Through Certificates, Series 2004-UST1)
Citigroup Mortgage Loan Trust Inc.
----------------------------------
(Exact name of registrant as specified in its charter)
--------------------------------------------------------------------------------
Delaware ▇▇-▇▇▇▇▇▇▇
-------- ----------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification Number)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------- -----------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (▇▇▇) ▇▇▇-▇▇▇▇
--------------
================================================================================
Securities registered pursuant to Section 12(b) of the Act:
None
H-1
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate whether the Registrant: (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
X YES ___No
Item 1. Business:
Not applicable
Item 2. Properties:
Not applicable
Item 3. Legal Proceedings:
None
Item 4. Submission of Matters to a Vote of Security-Holders
None
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
To the best knowledge of the registrant there is no established public trading
market for the certificates.
There are approximately _____ holders of record as of the end of the reporting
year.
Item 6. Selected Financial Data.
Not applicable.
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Not applicable
Item 8. Financial Statements and Supplementary Data.
Not applicable.
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure
None
H-2
Item 10.
Not applicable
Item 11. Executive Compensation
Not applicable
Item 12. Security Ownership of Certain Beneficial Owners and Management
Not applicable
Item 13. Certain Relationships and Related Transactions
Not applicable
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
a) The company filed on Form 8-K, separately for each
distribution date, the distribution of funds related to
the trust for each of the following distribution dates:
Distribution Date Form 8-K Filing Date
----------------- --------------------
____________________ _____________________
____________________ _____________________
____________________ _____________________
b) 99.1 Annual Report of Independent Public Accountants' as
to master servicing activities or servicing activities, as
applicable
(a) UST Mortgage Company, as master servicer
99.2 Annual Statement of Compliance with obligations under the
Pooling and Servicing Agreement or servicing agreement, as
applicable, of:
(a) UST Mortgage Company, as master servicer
Such document (i) is not filed herewith since such document was not received by
the Reporting Person at least three business days prior to the due date of this
report; and (ii) will be included in an amendment to this report on Form 10-K/A
to be filed within 30 days of the Reporting Person's receipt of such document.
H-3
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, the registrant has duly caused this
report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: ___________
Citigroup Mortgage Loan Trust Inc., by
Citibank N.A., as Trust Administrator for
Citigroup Mortgage Loan Trust, Series
2004-UST1, Mortgage Pass-Through
Certificates.
By: _______________________________________
Name:
Title:
Company:
H-4
EXHIBIT I
---------
OFFICER'S CERTIFICATE
REGARDING ANNUAL STATEMENT OF COMPLIANCE
___________________ Trust, Series 200_-___
_______________ Pass-Through Certificates
I, _______________________________, hereby certify that I am a
duly appointed ____________________ of _______________________ (the ["Master
Servicer"]), and further certify as follows:
1. This certification is being made pursuant to the terms of
the Pooling and Servicing Agreement, dated as of ________________, _____ (the
"Agreement"), among ______________________, as depositor, the [Master Servicer],
as [master servicer] and ________________, as trustee.
2. I have reviewed the activities of the [Master Servicer]
during the preceding year and the [Master Servicer's] performance under the
Agreement and to the best of my knowledge, based on such review, the [Master
Servicer] has fulfilled all of its obligations under the Agreement throughout
the year.
Capitalized terms not otherwise defined herein have the
meanings set forth in the Agreements.
Dated: _________________
I-1
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of _____________.
By: _____________________________
Name:
Title:
I, _________________________, a (an) __________________ of the
[Master Servicer], hereby certify that _________________ is a duly elected,
qualified, and acting _______________________ of the [Master Servicer] and that
the signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ______________.
By: ______________________________
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re: Citigroup Mortgage Loan Trust, Series 2004-UST1,
Mortgage Pass-through Certificates, Series 2004-UST1
----------------------------------------------------
I, [identify the certifying individual], certify that:
l. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of
Citigroup Mortgage Loan Trust Inc. (the "Registrant");
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution information, and
the servicing information required to be provided to the Trust Administrator by
the Master Servicer under the Pooling and Servicing Agreement, is included in
these reports;
4. Based on my knowledge and upon the annual compliance
statement included in the report and required to be delivered to the Trust
Administrator in accordance with the terms of the Pooling and Servicing
Agreement, and except as disclosed in the reports, the Master Servicer has
fulfilled its obligations under the Pooling and Servicing Agreement; and
5. I have disclosed to the Registrant's certified public
accountants all significant deficiencies relating to the Master Servicer's
compliance with the minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Pooling and Servicing Agreement.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: UST
Mortgage Company.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") dated as of October 1, 2004, among Citigroup Mortgage
Loan Trust Inc. as depositor (the "Depositor"), UST Mortgage Company as master
servicer (the "Master Servicer"), U.S. Bank National Association as trustee (the
"Trustee") and Citibank, N.A. as trust administrator (the "Trust
Administrator").
CITIGROUP MORTGAGE LOAN TRUST INC.
By:____________________________________
Name:
Title:
Date:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
-----------
FORM CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY THE TRUST ADMINISTRATOR
Re: Citigroup Mortgage Loan Trust, Series 2004-UST1,
Mortgage Pass-Through Certificates, Series 2004-UST1
----------------------------------------------------
I, [identify the certifying individual], a [title] of Citibank
N.A., as Trust Administrator of the Trust Fund, hereby certify to Citigroup
Mortgage Loan Trust Inc. (the "Depositor"), and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year [___], and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that annual report,
of the Depositor relating to the above-referenced trust;
2. Based on my knowledge, the information in these
distribution reports prepared by the Trust Administrator, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution information
required to be provided by the Trust Administrator under the Pooling and
Servicing Agreement is included in these reports.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") dated as of October 1, 2004, among Citigroup Mortgage
Loan Trust Inc. as depositor (the "Depositor"), UST Mortgage Company as master
servicer (the "Master Servicer"), U.S. Bank National Association as trustee (the
"Trustee") and Citibank, N.A. as trust administrator (the "Trust
Administrator").
CITIBANK N.A., as Trust Administrator
By:__________________________________
Name:
Title:
Date:
J-2-1
EXHIBIT J-3
-----------
FORM CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY THE MASTER SERVICER
Re: Citigroup Mortgage Loan Trust, Series 2004-UST1 (the "Trust"),
Mortgage Pass-through Certificates, Series 2004-UST1
----------------------------------------------------
I, [identify the certifying individual], certify that:
l. I have reviewed the information required to be provided to
the Trust Administrator by the Master Servicer pursuant to the Pooling and
Servicing Agreement and included in the Depositor's annual report on Form 10-K
for the calendar year 2004 and on all reports on Form 8-K filed in respect of
periods included in the year covered by that annual report (the "Servicing
Information");
2. Based on my knowledge, the Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the Servicing Information required
to be provided to the Trustee by the Master Servicer has been provided as
required under the Pooling and Servicing Agreement;
4. I am responsible for reviewing the activities performed by
the Master Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under the Pooling and
Servicing Agreement, and except as disclosed by written notice to the Trustee or
in the annual compliance statement or certified public accountant's report
required to be delivered to the Trustee in accordance with the terms of the
Pooling and Servicing Agreement (which has been so delivered to the Trustee),
the Master Servicer has, for the period covered by the Form 10-K Annual Report,
fulfilled its obligations under the Pooling and Servicing Agreement; and
5. The Master Servicer has disclosed to its certified public
accountants and the Depositor all significant deficiencies relating to the
Master Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth in the Pooling
and Servicing Agreement.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement, dated October
1, 2004 (the "Pooling and Servicing Agreement"), among the Depositor as
depositor, UST Mortgage Company as master servicer, U.S. Bank National
Association as trustee and Citibank, N.A. as trust administrator.
J-3-1
UST MORTGAGE COMPANY
By:____________________________
Name:
Title:
Date:
J-3-2
SCHEDULE 1
----------
MORTGAGE LOAN SCHEDULE
[FILED BY PAPER]
Schedule 1-1