Exhibit 3.1
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CITIGROUP MORTGAGE LOAN TRUST INC.
as Depositor
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
JPMORGAN CHASE BANK,
as Certificate Registrar and Certificate Paying Agent
AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of February 1, 2004
Trust Certificates,
Series 2004-A
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS.......................................................................................................1
Section 1.01. DEFINITIONS...............................................................................1
Section 1.02. OTHER DEFINITIONAL PROVISIONS.............................................................1
ARTICLE II........................................................................................................3
Organization......................................................................................................3
Section 2.01. NAME......................................................................................3
Section 2.02. OFFICE....................................................................................3
Section 2.03. PURPOSES AND POWERS.......................................................................3
Section 2.04. APPOINTMENT OF OWNER TRUSTEE..............................................................4
Section 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE........................................4
Section 2.06. DECLARATION OF TRUST......................................................................4
Section 2.07. LIABILITY OF THE HOLDERS OF THE CERTIFICATES..............................................4
Section 2.08. TITLE TO TRUST PROPERTY...................................................................5
Section 2.09. SITUS OF TRUST............................................................................5
Section 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR...........................................5
Section 2.11. PAYMENT OF TRUST FEES.....................................................................6
Section 2.12. INVESTMENT COMPANY........................................................................6
Section 2.13. TRANSFER OF TRUST ESTATE TO OWNER TRUSTEE.................................................6
ARTICLE III
CONVEYANCE OF THE CONTRACTS;......................................................................................9
Section 3.01. CONVEYANCE OF THE CONTRACTS...............................................................9
Section 3.02. INITIAL OWNERSHIP.........................................................................9
Section 3.03. THE CERTIFICATES..........................................................................9
Section 3.04. AUTHENTICATION OF CERTIFICATES...........................................................10
Section 3.05. REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE OF CERTIFICATES
.......................................................................................................10
Section 3.06. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES........................................12
Section 3.07. PERSONS DEEMED CERTIFICATEHOLDERS........................................................12
Section 3.08. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES................................12
Section 3.09. MAINTENANCE OF OFFICE OR AGENCY..........................................................13
Section 3.10. CERTIFICATE PAYING AGENT.................................................................13
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ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE............................................................................15
Section 4.01. GENERAL AUTHORITY........................................................................15
Section 4.02. GENERAL DUTIES...........................................................................15
Section 4.03. ACTION UPON INSTRUCTION..................................................................15
Section 4.04. NO DUTIES EXCEPT AS SPECIFIED UNDER SPECIFIED DOCUMENTS OR IN
INSTRUCTIONS............................................................................................16
Section 4.05. RESTRICTIONS.............................................................................16
Section 4.06. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS.......................16
Section 4.07. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS.............................17
Section 4.08. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY..................................17
Section 4.09. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER................................................17
Section 4.10. MAJORITY CONTROL.........................................................................17
ARTICLE V
APPLICATION OF TRUST FUNDS.......................................................................................19
Section 5.01. DISTRIBUTIONS............................................................................19
Section 5.02. METHOD OF PAYMENT........................................................................19
Section 5.03. TAX RETURNS..............................................................................19
Section 5.04. STATEMENTS TO CERTIFICATEHOLDERS.........................................................20
ARTICLE VI
CONCERNING THE OWNER TRUSTEE.....................................................................................21
Section 6.01. ACCEPTANCE OF TRUSTS AND DUTIES..........................................................21
Section 6.02. FURNISHING OF DOCUMENTS..................................................................22
Section 6.03. REPRESENTATIONS AND WARRANTIES...........................................................22
Section 6.04. RELIANCE; ADVICE OF COUNSEL..............................................................23
Section 6.05. NOT ACTING IN INDIVIDUAL CAPACITY........................................................23
Section 6.06. OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RELATED DOCUMENTS...........................23
Section 6.07. OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES.............................................24
Section 6.08. PAYMENTS FROM OWNER TRUST ESTATE.........................................................24
Section 6.09. DOING BUSINESS IN OTHER JURISDICTIONS....................................................24
Section 6.10. LIABILITY OF CERTIFICATE REGISTRAR AND CERTIFICATE PAYING AGENT..........................24
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE....................................................................................25
Section 7.01. OWNER TRUSTEE FEES AND EXPENSES..........................................................25
Section 7.02. INDEMNIFICATION..........................................................................25
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT...................................................................................27
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Section 8.01. TERMINATION OF TRUST AGREEMENT...........................................................27
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES...........................................................29
Section 9.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE...............................................29
Section 9.02. REPLACEMENT OF OWNER TRUSTEE.............................................................29
Section 9.03. SUCCESSOR OWNER TRUSTEE..................................................................29
Section 9.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE.................................................30
Section 9.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE............................................30
ARTICLE X
MISCELLANEOUS....................................................................................................32
Section 10.01. AMENDMENTS..............................................................................32
Section 10.02. NO LEGAL TITLE TO OWNER TRUST ESTATE....................................................33
Section 10.03. LIMITATIONS ON RIGHTS OF OTHERS.........................................................33
Section 10.04. NOTICES.................................................................................34
Section 10.05. SEVERABILITY............................................................................34
Section 10.06. SEPARATE COUNTERPARTS...................................................................34
Section 10.07. SUCCESSORS AND ASSIGNS..................................................................34
Section 10.08. NO PETITION.............................................................................34
Section 10.09. NO RECOURSE.............................................................................35
Section 10.10. HEADINGS................................................................................35
Section 10.11. GOVERNING LAW...........................................................................35
Section 10.12. INTEGRATION.............................................................................35
Signatures ......................................................................................................40
EXHIBITS
Exhibit A - Form of Certificate ................................................................................A-1
Exhibit B - Certificate of Trust of Origen Manufactured Housing Contract Trust 2004-A...........................B-1
Exhibit C - Form of Rule 144A Investment Representation ........................................................C-1
Exhibit D - Form of Certificate of Non-Foreign Status ..........................................................D-1
Exhibit E - Form of Investment Letter ..........................................................................E-1
Exhibit F - Form of Transferor Certificate .....................................................................F-1
Exhibit G - Form of ERISA Letter ...............................................................................G-1
Exhibit H - Form of Transferee Certificate .....................................................................H-1
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This Amended and Restated Trust Agreement, dated as of February 1, 2004
(as amended from time to time, this "Trust Agreement"), among Citigroup Mortgage
Loan Trust Inc., a Delaware corporation, as depositor (the "Depositor"),
Wilmington Trust Company, a Delaware banking corporation, as owner trustee (the
"Owner Trustee" and in its individual capacity, the "Bank"), and JPMorgan Chase
Bank, as certificate registrar (in such capacity, the "Certificate Registrar")
and certificate paying agent (in such capacity, the "Certificate Paying Agent").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
WHEREAS, the Depositor and the Owner Trustee have previously entered
into the Trust Agreement dated as of January 30, 2004 (the "Trust Agreement").
WHEREAS, the parties hereto desire to amend the terms of and restate
the Trust Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Owner Trustee and JPMorgan Chase Bank, in its capacity as
certificate registrar and certificate paying agent, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Indenture, dated February 1, 2004,
between Origen Manufactured Housing Contract Trust 2004-A, as Issuer, and
JPMorgan Chase Bank, as Indenture Trustee, which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document
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are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Trust Agreement or in
any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Trust Agreement shall refer to this Trust Agreement as
a whole and not to any particular provision of this Trust Agreement; Article,
Section and Exhibit references contained in this Trust Agreement are references
to Articles, Sections and Exhibits in or to this Trust Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Trust Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
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ARTICLE II
ORGANIZATION
Section 2.01. NAME. The trust created hereby (the "Trust") shall be
known as "Origen Manufactured Housing Contract Trust 2004-A", in which name the
Owner Trustee may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued.
Section 2.02. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Depositor.
Section 2.03. PURPOSES AND POWERS. The purpose of the Trust is to
engage in the following activities and the Trust shall have the power and
authority:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Trust Agreement and to sell the Notes and
the Certificates;
(ii) to pay the organizational, start-up and transactional
expenses of the Trust;
(iii) to assign, grant, transfer, pledge and convey the
Contracts pursuant to the Indenture and to hold, manage and distribute
to the Certificateholder pursuant to Section 5.01 herein, any portion
of the Contracts released from the Lien of, and remitted to the Trust
pursuant to the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) if directed by holders of Certificates representing more
than 50% of the beneficial interests in the Trust, sell the Trust
Estate subsequent to the discharge of the Indenture, all for the
benefit of the holders of the Certificates;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith;
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholder and the Noteholders; and
(viii) as set forth in the Indenture, at any time on or after
the Closing Date, the Issuer shall have the right to convey to the
Trust Estate, solely for the benefit of the Holder of the Certificates,
a derivative contract or comparable instrument. Any such instrument
shall constitute a fully prepaid agreement. All collections, proceeds
and other amounts in respect
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of such an instrument shall be distributed to the Certificates on the
Payment Date following receipt thereof by the Indenture Trustee.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Trust
Agreement or the Basic Documents.
Section 2.04. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Trust the receipt in trust pursuant to Section
3.01 of the Contracts and the rights with respect to the representations and
warranties made by the Seller and the Originator under the Manufactured Housing
Contract Sale Agreement which shall constitute the Owner Trust Estate.
Section 2.06. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a "statutory trust"
under the Statutory Trust Statute and that this Trust Agreement constitute the
governing instrument of such statutory trust. It is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Trust (A) shall not be treated as (i) an association subject
separately to taxation as a corporation or (ii) a "publicly traded partnership"
as defined in Treasury Regulation Section 1.7704-1, (B) shall, as of the Closing
Date and for so long as any Notes are outstanding be treated for federal income
tax purposes as a qualified REIT subsidiary within the meaning of Section 856(i)
of the Code, and thereafter be disregarded as a separate entity (and if at any
other time the Trust Certificates are held by more than one person for federal
income tax purposes, shall be treated as a partnership), and (C) that each Class
of Notes shall be debt, and the provisions of this Agreement shall be
interpreted to further this intention. It is the intention of the parties hereto
that, for federal, state and local tax purposes, the Depositor shall at no time
be treated as an owner of the Contracts or as the issuer of or obligor on
indebtedness secured by the Contracts and evidenced by the Notes, and the
parties hereto mutually covenant to take all pertinent tax reporting positions
consistent with that intent. Except as otherwise provided in this Trust
Agreement, the rights of the Certificateholder will be those of equity owners of
the Trust. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Statutory Trust Statute
with respect to accomplishing the purposes of the Trust.
Section 2.07. LIABILITY OF THE HOLDERS OF THE CERTIFICATES. The Holders
of the Certificates shall be jointly and severally liable directly to and shall
indemnify any injured party for all losses, claims, damages, liabilities and
expenses of the Trust and the Owner Trustee (including Expenses, to the extent
not paid out of the Owner Trust Estate); provided, however, that the Holders of
the
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Certificates shall not be liable for payments required to be made on the Notes
or the Certificates, or for any losses incurred by a Certificateholder in the
capacity of an investor in the Certificates or a Noteholder in the capacity of
an investor in the Notes. The Holders of the Certificates shall be liable for
and shall promptly pay any entity level taxes imposed on the Trust. In addition,
any third party creditors of the Trust (other than in connection with the
obligations described in the second preceding sentence for which the Holders of
the Certificates shall not be liable) shall be deemed third party beneficiaries
of this paragraph. The obligations of the Holders of the Certificates under this
paragraph shall be evidenced by the Certificates.
Section 2.08. TITLE TO TRUST PROPERTY. Except with respect to the
Contracts, which will be assigned of record to the Indenture Trustee pursuant to
the Indenture, legal title to the Owner Trust Estate shall be vested at all
times in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.09. SITUS OF TRUST. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware or taking actions
outside the State of Delaware in order to comply with Section 2.03. Payments
will be received by the Trust only in Delaware or New York, and payments will be
made by the Trust only from Delaware or New York. The only office of the Trust
will be at the Corporate Trust Office in Delaware.
Section 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(ii) The Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications and in which the failure to so qualify would have a
material adverse effect on the business, properties, assets or
condition (financial or other) of the Depositor.
(iii) The Depositor has the power and authority to execute and
deliver this Trust Agreement and to carry out its terms; the Depositor
has full power and authority to convey and assign the property to be
conveyed and assigned to and deposited with the Trust as part of the
Owner Trust Estate and the Depositor has duly authorized such
conveyance and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this
Trust Agreement have been duly authorized by the Depositor by all
necessary corporate action.
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(iv) The consummation of the transactions contemplated by this
Trust Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(v) The Trust is not required to register as an investment
company under the Investment Company Act and is not under the control
of a Person required to so register.
Section 2.11. PAYMENT OF TRUST FEES. Pursuant to the Section 8.02 of
the Indenture, on each Payment Date commencing on the 13th Payment Date, the
Indenture Trustee shall remit to the Owner Trustee the Owner Trustee Fee for
such Payment Date.
Section 2.12. INVESTMENT COMPANY. Neither the Depositor nor any holder
of a Certificate shall take any action which would cause the Trust to become an
"investment company" which would be required to register under the Investment
Company Act.
Section 2.13. TRANSFER OF TRUST ESTATE TO OWNER TRUSTEE. (a) Effective
as of the date hereof, the Depositor does hereby assign, transfer, and otherwise
convey to, and deposit with, the Trust, until this Agreement terminates pursuant
to Section 8.01, the entire Trust Estate, such conveyance to be made in exchange
for the Notes and the Certificates. Such assignment includes, without
limitation, all amounts payable to and all rights of the holder of the
Collateral pursuant to this Agreement.
The conveyance of the Collateral and all other assets constituting the
Trust Estate by the Depositor as contemplated hereby is absolute and is intended
by the parties, other than for federal, state and local income and franchise tax
purposes, to constitute a sale of the Collateral and all other assets
constituting the Trust Estate by the Depositor to the Trust. It is, further, not
intended that such conveyance be deemed a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event:
(i) this Agreement shall constitute a security agreement under
applicable law and shall be deemed to create valid and continuing
security interest (as defined in the applicable UCC) in the Trust
Estate (including, without limitation, the Collateral, the Certificate
Distribution Account and any proceeds thereof) in favor of the Trust,
which security interest is prior to all other Liens, and is enforceable
as such as against creditors of and purchasers from the Depositor;
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(ii) other than the security interest granted to the Trust
pursuant to this Agreement, Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Trust
Estate, has not authorized the filing of and is not aware of any
financing statements against the Trust Estate that includes a
description of collateral covering the Trust Estate other than any
financing statements relating to the security interest granted to the
Trust hereunder or that has been terminated. The Depositor is not aware
of any judgment or tax lien filings against Depositor;
(iii) the Depositor owns and has good and marketable title to
the Trust Estate free and clear of any Lien, claim or encumbrance of
any Person;
(iv) the Certificate Distribution Account constitutes a
"deposit account" within the meaning of the applicable UCC. The
Depositor has directed the bank where the Certificate Distribution
Account is held to take all steps necessary to cause the Certificate
Paying Agent to become the account holder of the Certificate
Distribution Account. The Certificate Distribution Account is not in
the name of any Person other than as provided in Section 3.10 of this
Agreement. The Depositor has not consented to the maintenance of the
Certificate Distribution Account in compliance with instructions of any
Person other than the Certificate Paying Agent;
(vi) the Trust Estate (excluding the Certificate Distribution
Account and any proceeds thereof) constitutes "deposit accounts,"
"general intangibles" and "instruments" within the meaning of the
applicable UCC). The Depositor has received all required consents and
approvals to the pledge of the portions of the Trust Estate (excluding
the Certificate Distribution Account and any proceeds thereof)
constituting payment intangibles;
(vii) the Depositor has caused or will have caused, within ten
days, the filing of all appropriate financing statements in the
appropriate filing offices under applicable law in order to perfect the
security interest in the Trust Estate granted to the Trust hereunder.
All financing statements filed or to be filed against the Depositor in
favor of the Trust (or any subsequent assignee, including, without
limitation, the Indenture Trustee) in connection herewith describing
the Trust Estate contain a statement to the following effect, "A
purchase of, or security interest in, any collateral described in this
financing statement will violate the rights of the secured party;" and
(viii) the Depositor shall, to the extent consistent with this
Agreement, take such additional reasonable actions as may be necessary
to ensure that, if this Agreement were deemed to create a security
interest in the Collateral and the other assets of the Trust Estate,
such security interest would be a perfected security interest of first
priority under applicable law and will be maintained as such throughout
the life of this Agreement. Notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property, shall be
deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Owner Trustee on behalf of the Trust (or any
subsequent assignee, including, without limitation, the Indenture
Trustee) for the purpose of perfecting such security interest under
applicable law.
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(c) The Owner Trustee declares that it holds and will hold the
Trust Estate and such documents and instruments and that it holds and will hold
all other assets and documents to be included in the Trust Estate, in trust for
the exclusive use and benefit of all present and future Certificateholders.
(d) Except as expressly provided in Section 8.01, neither the
Depositor nor any Certificateholder shall be able to revoke the Trust
established hereunder. Except as provided in Sections 4.01, 4.02, 4.03, 5.01 and
8.01 hereof, the Owner Trustee or Certificate Paying Agent (as applicable) shall
not assign, sell, dispose of or transfer any interest in, nor may the Depositor
or any Certificateholder withdraw from the Trust, the Collateral or other asset
constituting the Trust Estate.
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ARTICLE III
CONVEYANCE OF THE CONTRACTS;
CERTIFICATES
Section 3.01. CONVEYANCE OF THE CONTRACTS. The Depositor, concurrently
with the execution and delivery hereof, does hereby contribute, transfer, convey
and assign to the Trust, on behalf of the Holders of the Notes and the
Certificates, without recourse, all its right, title and interest in and to the
Contracts, including all interest and principal received on or with respect to
the Contracts after the Cut-off Date (other than payments of principal and
interest due on the Contracts on or before the Cut-off Date). In addition, the
Depositor hereby assigns to the Trust all of its right, title, and interest in,
to, and under the Manufactured Housing Contract Sale Agreement.
The conveyance of the Contracts by the Depositor (on behalf of the
Seller) to the Trust hereunder is intended to facilitate the simultaneous
issuance of the Notes under the Indenture and issuance of the Certificates
hereunder to the Seller as Holder, and the Depositor (on behalf of the Seller)
has no present intention of selling any of the Certificates. Accordingly, at the
time of the transaction set forth herein, the Seller will retain without
interruption, through the ownership of the Certificates, the economic benefits
associated with ownership of the Contracts as well as the economic burdens
associated with such ownership, subject to the lien of the Indenture and subject
to this Agreement.
Section 3.02. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the conveyance
of the Contracts pursuant to Section 3.01 and the issuance of the Certificates,
and thereafter except as otherwise permitted hereunder, the Depositor shall be
the sole beneficial owner.
Section 3.03. THE CERTIFICATES. The Certificates shall be issued in the
form of one or more Certificates, each representing not less than a 10%
Certificate Percentage Interest. At initial issuance, the Certificates shall be
issued to and registered in the name of Origen Special Purpose, L.L.C., as
designee of Origen Securitization Company, LLC. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee and authenticated in the manner provided
in Section 3.04. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Trust Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the authentication
and delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates. A Person shall become a
Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such Person's acceptance of a
Certificate duly registered in such Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's
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acceptance of a Certificate duly registered in such transferee's name pursuant
to and upon satisfaction of the conditions set forth in Section 3.05.
Section 3.04. AUTHENTICATION OF CERTIFICATES. The Owner Trustee shall
cause all Certificates issued hereunder to be executed and authenticated on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Trust Agreement or be valid for any purpose unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or the Certificate Registrar by
manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section 3.05. REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE
OF CERTIFICATES. The Certificate Registrar shall keep or cause to be kept, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
JPMorgan Chase Bank shall be the initial Certificate Registrar. If the
Certificate Registrar resigns or is removed, the Majority Certificateholder,
with the consent of the Owner Trustee, shall appoint a successor Certificate
Registrar.
Subject to satisfaction of the conditions set forth below with respect
to the Certificate, upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to Section 3.09, the
Owner Trustee or the Certificate Registrar shall execute, authenticate and
deliver in the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the Owner Trustee or the Certificate Registrar. At the
option of a Holder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.09.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
No Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9
and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
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No person shall become a Certificateholder, so long as any Notes are
Outstanding, until it shall establish its status as a real estate investment
trust ("REIT") or as a "qualified REIT subsidiary" ("QRS") within the meaning of
Section 856(a) or Section 856(i) of the Code, respectively, by submitting to the
Certificate Registrar and the Owner Trustee, the Transferee Certificate set
forth in Exhibit H hereto.
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (1) is
a "qualified institutional buyer" as defined under Rule 144A, acting for its own
account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (2) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar, the Owner Trustee and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (b) the
transferee executes a representation letter, substantially in the form of
Exhibit F to the Agreement, and transferor executes a representation letter,
substantially in the form of Exhibit E hereto, each acceptable to and in form
and substance satisfactory to the Certificate Registrar, the Owner Trustee and
the Depositor certifying the facts surrounding such transfer, which
representation letters shall not be an expense of the Trust, the Owner Trustee,
the Certificate Registrar, the Servicer or the Depositor and (B) the Certificate
of Non-Foreign Status (in substantially the form attached hereto as Exhibit D)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar, the Owner Trustee and the Depositor, which certificate
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar or the Depositor. The Holder of a Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer are provided with an Opinion of Counsel which establishes to
the satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that the purchase of 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
Owner Trustee, the Certificate Registrar or the Servicer 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 Owner Trustee, the
Certificate Registrar or the Servicer. In lieu of such
11
Opinion of Counsel, a Person acquiring such Certificates may provide a
certification in the form of Exhibit G to this Agreement, which the Depositor,
the Owner Trustee, the Certificate Registrar and the Servicer may rely upon
without further inquiry or investigation. Neither an Opinion of Counsel nor a
certification will be required in connection with the initial transfer of any
such Certificate by the Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall be deemed to have represented
that such affiliate is not a Plan or a Person investing Plan Assets of any Plan)
and the Owner Trustee and the Certificate Registrar shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee or the Certificate Registrar, shall be a written representation) from
the Depositor of the status of such transferee as an affiliate of the Depositor.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
and the Certificate Registrar an Opinion of Counsel, rendered by a law firm
generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, to the effect that such transfer (including any
disposition permitted following any default under any pledge or repurchase
transaction) will not cause the Trust to be (i) treated as an association
taxable as a corporation for federal income tax and relevant state income and
franchise tax purposes or (ii) taxable as a "publicly traded partnership" as
defined in Treasury Regulation section 1.7704-1 for federal income tax purposes
and relevant state franchise or income tax purposes. Notwithstanding the
foregoing, the provisions of this paragraph shall not apply to the initial
transfer of the Certificates to the Depositor.
Section 3.06. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee shall execute on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under this
Section 3.06, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.06 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.07. PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar or any Certificate Paying Agent shall
be bound by any notice to the contrary.
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Section 3.08. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Certificate Registrar shall furnish or cause to be furnished to
the Depositor, the Certificate Paying Agent or the Owner Trustee, within 15 days
after receipt by the Certificate Registrar of a written request therefor from
the Depositor, the Certificate Paying Agent or the Owner Trustee, a list, in
such form as the Depositor, the Certificate Paying Agent or the Owner Trustee,
as the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of the
Trust, the Depositor, the Certificate Paying Agent, the Certificate Registrar or
the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 3.09. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee on
behalf of the Trust, shall maintain an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates may be served. The Owner Trustee initially designates the office of
the agent of the Indenture Trustee at c/o DTC Transfer Services, 00 Xxxxx
Xxxxxx, Xxxxxxxx Xxxx Entrance, Xxx Xxxx, Xxx Xxxx 00000 for purposes of such
surrender and the Corporate Trust Office of the Indenture Trustee as its office
for service of notices or demands. The Owner Trustee shall give prompt written
notice to the Depositor, the Certificate Paying Agent, the Certificate Registrar
and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
Section 3.10. CERTIFICATE PAYING AGENT. (a) The Certificate Paying
Agent shall make distributions to Certificateholders from the Certificate
Distribution Account on behalf of the Trust in accordance with the provisions of
the Certificates and Section 5.01 hereof from payments remitted to the
Certificate Paying Agent by the Indenture Trustee pursuant to Section 3.05 of
the Indenture. The Trust hereby appoints JPMorgan Chase Bank as Certificate
Paying Agent and JPMorgan Chase Bank hereby accepts such appointment and further
agrees that it will be bound by the provisions of this Trust Agreement relating
to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Certificates in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust
of which a Responsible Officer of the Certificate Paying Agent has
actual knowledge in the making of any payment required to be made with
respect to the Certificates;
(iii) at any time during the continuance of any such default,
upon the written request of the Owner Trustee forthwith pay to the
Owner Trustee on behalf of the Trust all sums so held in Trust by such
Certificate Paying Agent;
(iv) not resign from its position as Certificate Paying Agent
so long as it is Indenture Trustee except that it shall immediately
resign as Certificate Paying Agent and forthwith pay to the Owner
Trustee on behalf of the Trust all sums held by it in trust for the
payment of
13
Certificates if at any time it ceases to meet the standards under this
Section 3.10 required to be met by the Certificate Paying Agent at the
time of its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the Issuer
in connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying
Agent if it determines in its sole discretion that the Certificate Paying Agent
shall have failed to perform its obligations under this Trust Agreement in any
material respect. In the event that JPMorgan Chase Bank shall no longer be the
Certificate Paying Agent under this Trust Agreement and Paying Agent under the
Indenture, the Majority Certificateholder, with the consent of the Owner
Trustee, shall appoint a successor to act as Certificate Paying Agent (which
shall be a bank or trust company) and which shall also be the successor Paying
Agent under the Indenture. The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent hereunder to
execute and deliver to the Owner Trustee an instrument to the effect set forth
in Section 3.10(a) as it relates to the Certificate Paying Agent. The
Certificate Paying Agent shall return all unclaimed funds to the Trust and upon
removal of a Certificate Paying Agent such Certificate Paying Agent shall also
return all funds in its possession to the Trust. The provisions of Sections
6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01 shall apply to the Certificate
Paying Agent to the extent applicable. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with
itself a trust account (the "Certificate Distribution Account") in which the
Certificate Paying Agent shall deposit, on the same day as it is received from
the Indenture Trustee, each remittance received by the Certificate Paying Agent
with respect to payments made pursuant to the Indenture. The Certificate Paying
Agent shall make all distributions to Certificates, from moneys on deposit in
the Certificate Distribution Account, in accordance with Section 5.01 hereof.
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ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01. GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement or instrument described herein all as approved by
the Depositor, as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, except as otherwise provided in this Trust Agreement, to
take all actions required of the Trust pursuant to the Basic Documents.
Section 4.02. GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Trust Agreement and the Basic Documents to which the Trust is
a party and to administer the Trust in the interest of the Certificateholders,
subject to the Basic Documents and in accordance with the provisions of this
Trust Agreement.
Section 4.03. ACTION UPON INSTRUCTION. (a) Subject to Article IV and in
accordance with the terms of the Basic Documents, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is required to decide between
alternative courses of action permitted or required by the terms of this Trust
Agreement or under any Basic Document, or in the event that the Owner Trustee is
unsure as to the application of any provision of this Trust Agreement or any
Basic Document or any such provision is ambiguous as to its application, or is,
or appears to be, in conflict with any other applicable provision, or in the
event that this Trust Agreement permits any determination by the Owner Trustee
or is silent or is incomplete as to the course of action that the Owner Trustee
is required to take with respect to a particular set of facts, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith
in accordance with any written instruction of the Certificateholders, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within 10 days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement or the Basic Documents, as it shall deem
to
15
be in the best interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for such action or inaction.
Section 4.04. NO DUTIES EXCEPT AS SPECIFIED UNDER SPECIFIED DOCUMENTS
OR IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at anytime or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document.
Notwithstanding any provision herein or in any other Basic Document, the Owner
Trustee shall not be obligated to prepare, file or execute any documents or
certifications required to be filed by the Trust pursuant to the Xxxxxxxx-Xxxxx
Act of 2002, as amended. The Owner Trustee nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee that are not related to the
ownership or the administration of the Owner Trust Estate.
Section 4.05. RESTRICTIONS. (a) The Owner Trustee or the Depositor (or
an Affiliate thereof) shall not take any action (x) that is inconsistent with
the purposes of the Trust set forth in Section 2.03, (y) that, to the actual
knowledge of the Owner Trustee based on an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, would result in the Trust becoming taxable as a
corporation for federal income tax purposes or (z) would result in the amendment
or modification of this Trust Agreement. The Certificateholders shall not direct
the Owner Trustee to take action that would violate the provisions of this
Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (a) it shall have received an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization to the effect that such transaction will not have any
material adverse tax consequence to the Trust or any Certificateholder and (b)
such conveyance or transfer shall not violate the provisions of Section 3.16(b)
of the Indenture.
Section 4.06. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. With respect to the following matters, the Owner Trustee shall
not take action unless at least 10 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 10th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
16
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of cash distributions due
and owing under the Contracts) and the compromise of any action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of cash distributions due and
owing under the Contracts);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
and
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust Agreement
of a successor Certificate Registrar or Certificate Paying Agent or the consent
to the assignment by the Note Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Trust Agreement, as applicable.
Section 4.07. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders to (a) remove the Servicer under the Servicing
Agreement pursuant to Sections 7.01 and 8.05 thereof or (b) except as expressly
provided in the Basic Documents, sell the Contracts after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the Certificateholders.
Section 4.08. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Noteholders and the Owner Trustee and
the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent. This paragraph shall survive for one year following
termination of this Trust Agreement.
Section 4.09. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
Section 4.10. MAJORITY CONTROL. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Trust
Agreement may be taken by the Holders of Certificates evidencing not less than a
majority Percentage Interest of the Certificates. Except as
17
expressly provided herein, any written notice of the Certificateholders
delivered pursuant to this Trust Agreement shall be effective if signed by
Holders of Certificates evidencing not less than a majority Percentage Interest
of the Certificates at the time of the delivery of such notice.
18
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01. DISTRIBUTIONS. (a) On each Payment Date, the Certificate
Paying Agent shall distribute to the Certificateholders, on a pro rata basis
based on the Certificate Percentage Interests thereof, all funds remaining on
deposit in the Certificate Distribution Account and available therefor (as
provided in Section 3.05 of the Indenture) for such Payment Date after payment
of any expense amounts owing to the Owner Trustee hereunder and any Expenses of
the Trust remaining unpaid.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in accordance
with this Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Certificate Paying Agent and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders.
Section 5.02. METHOD OF PAYMENT. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date as
provided in Section 5.01 shall be made to each Certificateholder of record on
the preceding Record Date by wire transfer, in immediately available funds, to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Payment Date or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.03. TAX RETURNS. Pursuant to the Servicing Agreement, the
Servicer and the Administrator have agreed that they shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis using
the accrual method of accounting, (b) prepare and file or cause to be prepared
and filed such tax returns relating to the Trust as may be required by the Code
and applicable Treasury Regulations (making such elections as may from time to
time be required or appropriate under any applicable state or federal statutes,
rules or regulations); provided, however, that the Administrator shall not be
required to prepare and file partnership tax returns on behalf of the Issuer
unless the Administrator receives an opinion of counsel reasonably satisfactory
to it (which shall not be at the Indenture Trustee's expense, but shall be at
the expense of the Depositor or other party furnishing such opinion) as to the
necessity of such filings and provided further, that the neither the Servicer
nor the Administrator shall be required to compute the Issuer's gross income
except to
19
the extent it can do so without unreasonable effort or expense based upon income
statements furnished to it. Pursuant to the Indenture and solely with respect to
filing Form 1099 tax returns, the Indenture Trustee has agreed that it shall (a)
deliver (or cause to be delivered) to each Noteholder and Certificateholder as
may be required by the Code and applicable Treasury Regulations, such
information as may be required to enable each Certificateholder to prepare its
federal and state income tax returns and (b) collect or cause to be collected
any withholding tax as described in and in accordance with Section 5.01 of this
Trust Agreement with respect to income or distributions to Certificateholders
and prepare or cause to be prepared the appropriate forms relating thereto. The
Owner Trustee shall sign all tax and information returns prepared or caused to
be prepared by the Administrator and the Indenture Trustee pursuant to this
Section 5.03 at the request of the Administrator or the Indenture Trustee, and
in doing so shall rely entirely upon, and shall have no liability for
information or calculations provided by, the Administrator or the Indenture
Trustee.
Section 5.04. STATEMENTS TO CERTIFICATEHOLDERS. On each Payment Date,
the Certificate Paying Agent shall make available to each Certificateholder the
statement or statements provided to the Owner Trustee and the Certificate Paying
Agent by the Indenture Trustee pursuant to Section 7.05 of the Indenture with
respect to such Payment Date; provided, however, that in the event that any
monthly statement is no longer available, at the request of any
Certificateholder, the Indenture Trustee will deliver such monthly statement to
such Certificateholder.
20
ARTICLE VI
CONCERNING THE BANK
Section 6.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Bank accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Trust Agreement. The Bank and the
Certificate Paying Agent also agree to disburse all moneys actually received by
it constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Trust Agreement. The Bank shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, gross negligence or bad faith or
grossly negligent failure to act or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.03 expressly made by the Bank.
In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) The Bank shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with the instructions of the
Certificateholders permitted under this Trust Agreement;
(b) No provision of this Trust Agreement or any Basic Document shall
require the Bank to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights, duties or powers hereunder or
under any Basic Document if the Bank shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) Under no circumstances shall the Bank be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including the
principal of and interest on the Notes;
(d) The Bank shall not be responsible for or in respect of the validity
or sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, the Certificates, other than
the certificate of authentication on the Certificates, if executed and
authenticated by the Bank and the Bank shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein or expressly agreed to in the Basic
Documents;
(e) The Bank shall not be liable for the default or misconduct of the
Depositor, Indenture Trustee, Certificate Registrar or the Servicer under any of
the Basic Documents or otherwise and the Bank shall have no obligation or
liability to perform the obligations of the Trust under this Trust Agreement or
the Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture, the Servicer under the Servicing Agreement or the Seller or
the Originator under the Manufactured Housing Contract Sale Agreement.
(f) The Bank shall be under no obligation to exercise any of the rights
or powers vested in it or duties imposed by this Trust Agreement, or to
institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at
21
the request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Bank security or indemnity satisfactory
to it against the costs, expenses and liabilities that may be incurred by the
Bank therein or thereby. The right of the Bank to perform any discretionary act
enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Bank shall not be answerable for other than its
gross negligence or willful misconduct in the performance of any such act.
Section 6.02. FURNISHING OF DOCUMENTS. The Bank shall furnish to the
Noteholders and Certificateholders promptly upon receipt of a written reasonable
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Bank under the Basic Documents.
Section 6.03. REPRESENTATIONS AND WARRANTIES. The Bank hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Bank or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This Trust Agreement assuming due authorization, execution and
delivery by the Depositor, constitutes a valid, legal and binding obligation of
the Bank, enforceable against it in accordance with the terms hereof subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and to general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(e) The execution, delivery, authentication and performance by it of
this Trust Agreement will not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of any
other action with respect to, any governmental authority or agency;
(f) The Bank is not in default with respect to any order or decree of
any court or any order, regulation or demand of any Federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or other) or
22
operations of the Bank or its properties or might have consequences that would
materially adversely affect its performance hereunder; and
(g) No litigation is pending or, to the best of the Bank's knowledge,
threatened against the Bank which would prohibit its entering into this Trust
Agreement or performing its obligations under this Trust Agreement.
Section 6.04. RELIANCE; ADVICE OF COUNSEL. (a) The Bank shall incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, note, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Bank may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of determination of which is not specifically prescribed herein, the Bank
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the Bank for any action taken or omitted to be taken by it in
good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
Basic Documents, the Bank (i) may act directly or through its agents, attorneys,
custodians or nominees (including persons acting under a power of attorney)
pursuant to agreements entered into with any of them, and the Bank shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Bank with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be selected with reasonable
care and employed by it. The Bank shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the opinion or advice
of any such counsel, accountants or other such Persons and not contrary to this
Trust Agreement or any Basic Document.
Section 6.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Bank by reason of the transactions
contemplated by this Trust Agreement or any Basic Document shall look only to
the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06. BANK NOT LIABLE FOR CERTIFICATES OR RELATED DOCUMENTS.
The recitals contained herein and in the Certificates (other than the signatures
of the Bank on the Certificates) shall be taken as the statements of the
Depositor, and the Bank assumes no responsibility for the correctness thereof.
The Bank makes no representations as to the validity or sufficiency of this
Trust Agreement, of any Basic Document or of the Certificates (other than the
signatures of the Bank on the Certificates) or the Notes, or of any Related
Documents. The Bank shall at no time have any responsibility or liability with
respect to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under this Trust Agreement
or the Noteholders under the Indenture, including compliance by the Depositor,
the Originator or the Seller with any warranty or representation made under any
Basic Document or in any related document or
23
the accuracy of any such warranty or representation, or any action of the
Certificate Paying Agent, the Certificate Registrar or the Indenture Trustee
taken in the name of the Owner Trustee.
Section 6.07. BANK MAY OWN CERTIFICATES AND NOTES. The Bank in its
individual or any other capacity may, subject to Section 3.05, become the owner
or pledgee of Certificates or Notes and may deal with the Depositor, the Seller,
the Certificate Paying Agent, the Certificate Registrar and the Indenture
Trustee in transactions with the same rights as it would have if it were not
Owner Trustee.
Section 6.08. PAYMENTS FROM OWNER TRUST ESTATE. All payments to be made
by the Owner Trustee under this Trust Agreement or any of the Basic Documents to
which the Bank is a party shall be made only from the income and proceeds of the
Owner Trust Estate or from other amounts required to be provided by the
Certificateholders and only to the extent that the Owner Trust shall have
received income or proceeds from the Owner Trust Estate or the
Certificateholders to make such payments in accordance with the terms hereof.
Wilmington Trust Company, in its individual capacity, shall not be liable for
any amounts payable under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party.
Section 6.09. DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by Wilmington Trust Company; or (iii) subject Wilmington Trust Company
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by the Bank or the Owner Trustee, as the case may be, contemplated
hereby.
Section 6.10. LIABILITY OF CERTIFICATE REGISTRAR AND CERTIFICATE PAYING
AGENT. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including but not limited to the provisions of
this Agreement permitting the Owner Trustee to resign, merge or consolidate,
shall inure as well to the Certificate Registrar and Certificate Paying Agent.
In addition, JPMorgan Chase Bank, in its capacities as Certificate Registrar and
Certificate Paying Agent hereunder shall be afforded all the rights,
protections, immunities and indemnities afforded to it in its capacity as
Indenture Trustee under the Indenture as if specifically set forth herein.
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ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. OWNER TRUSTEE FEES AND EXPENSES. The Bank shall receive
as compensation for its services hereunder the Owner Trustee Fee (which,
beginning on the 13th Payment Date, will be paid pursuant to Section 8.02 (i)
(B) of the Indenture), and the Bank shall be reimbursed pursuant to Section
8.02(xii) of the Indenture for its reasonable expenses hereunder and under the
Basic Documents, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may reasonably employ in connection with the exercise and performance of
its rights and its duties hereunder and under the Basic Documents. Any amounts
owing to the Bank hereunder in excess of such amounts shall be paid pursuant to
a separate side agreement between the Owner Trustee and the Servicer.
Section 7.02. INDEMNIFICATION. The Depositor shall indemnify, defend
and hold harmless the Bank, the Certificate Registrar and the Certificate Paying
Agent, solely in its capacity as Certificate Paying Agent, and their respective
successors, assigns, agents and servants (collectively, the "Indemnified
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against any Indemnified Party in any way
relating to or arising out of this Trust Agreement, the Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee, the Certificate Registrar and the Certificate
Paying Agent, solely in its capacity as Certificate Paying Agent, hereunder,
provided, that:
(i) the Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or
resulting from the Owner Trustee's, the Certificate Registrar's or the
Certificate Paying Agent's willful misconduct, gross negligence or bad
faith or as a result of any inaccuracy of a representation or warranty
of the Owner Trustee contained in Section 6.03 expressly made by the
Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party
shall have given the Depositor written notice thereof promptly after
the Indemnified Party shall have actual knowledge thereof,
(iii) while maintaining control over its own defense, the
Depositor shall consult with the Indemnified Party in preparing such
defense; and
(iv) notwithstanding anything in this Agreement to the
contrary, the Depositor shall not be liable for settlement of any claim
by an Indemnified Party entered into without the prior consent of the
Depositor which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent or the termination of this Trust Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
25
pursuant to this Section 7.02, the Owner Trustee's, the Certificate Registrar's
or the Certificate Paying Agent's choice of legal counsel, if other than the
legal counsel retained by the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent in connection with the execution and delivery of this
Trust Agreement, shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld. In addition, upon written notice to
the Owner Trustee, the Certificate Registrar or the Certificate Paying Agent and
with the consent of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent, as applicable, which consent shall not be unreasonably
withheld, the Depositor has the right to assume the defense of any claim, action
or proceeding against the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent.
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ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. TERMINATION OF TRUST AGREEMENT. (a) This Trust Agreement
(other than Article VII) and the Trust shall terminate and be of no further
force or effect upon the earliest of (i) the final distribution of all moneys or
other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and this Trust Agreement, (ii) the distribution of all of
the assets of the Owner Trust Estate, in accordance with written instructions
provided to the Owner Trustee by the Majority Certificateholder, following the
optional redemption of the Notes by the Issuer pursuant to Section 8.07 of the
Indenture; provided in each case that all amounts owing to the Noteholders to
the extent payable from the Owner Trust Estate or proceeds thereof have been
paid in full and that all obligations under the Indenture have been discharged.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Trust Agreement or the
Trust or (y) 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 all or any part of the Trust or the Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to Certificateholders
mailed within five Business Days of receipt of notice of the final payment on
the Notes from the Indenture Trustee, stating (i) the Payment Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Payment Agent therein specified.
The Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders amounts distributable
on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Certificate Paying Agent shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost
27
thereof shall be paid out of the funds and other assets that shall remain
subject to this Trust Agreement. Any funds remaining in the Certificate
Distribution Account after exhaustion of such remedies shall be distributed by
the Certificate Paying Agent to the Depositor.
(d) Upon the winding up of the Trust and its termination, and notice
thereof by the Majority Certificateholder, the Owner Trustee shall cause the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810(c)
of the Statutory Trust Statute.
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's or is
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.02.
Section 9.02. REPLACEMENT OF OWNER TRUSTEE. The Owner Trustee may at
any time resign and be discharged from the trusts hereby created by giving 30
days prior written notice thereof to the Depositor. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor Owner Trustee,
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 9.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee and to its predecessor Owner Trustee an instrument accepting
such appointment under this Trust Agreement, and thereupon the resignation or
removal of the predecessor Owner Trustee shall become effective, and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Trust Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee
29
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies.
Section 9.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner 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 the Owner Trust Estate or any
portion thereof in any
30
such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust Agreement;
and
(c) The Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner 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 Trust
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as 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
Trust 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 Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
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ARTICLE X
MISCELLANEOUS
Section 10.01. AMENDMENTS. (a) This Trust Agreement may be amended from
time to time by the parties hereto as specified in this Section, provided that
any amendment, except as provided in subparagraph (e) below, be accompanied by
an Opinion of Counsel addressed to the Owner Trustee, the Certificate Registrar
and the Certificate Paying Agent and obtained by the Servicer to the effect that
such amendment (i) complies with the provisions of this Section and (ii) if
Origen Special Purpose, L.L.C. is not the Majority Certificateholder, would not
cause the Trust to be subject to an entity level tax for federal income tax
purposes.
(b) If the purpose of the amendment (as detailed therein) is to correct
any mistake, eliminate any inconsistency, cure any ambiguity or deal with any
matter not covered (i.e. to give effect to the intent of the parties and, if
applicable, to the expectations of the Holders), it shall not be necessary to
obtain the consent of any Holders, but the Owner Trustee, the Certificate
Registrar and the Certificate Paying Agent shall be furnished with (A) a letter
from the Rating Agencies that the amendment will not result in the downgrading
or withdrawal of the rating then assigned to any Note or the rating then
assigned to any Note or (B) an Opinion of Counsel obtained by the Servicer to
the effect that such action will not adversely affect in any material respect
the interests of any Holders.
(c) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Holder, but the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent shall be furnished with
an Opinion of Counsel obtained by the Servicer that such amendment is necessary
or helpful to prevent the imposition of such taxes and is not materially adverse
to any Holder.
(d) If the purpose of the amendment is to add or eliminate or change
any provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (A) an Opinion of Counsel obtained by the
Servicer to the effect that such action will not adversely affect in any
material respect the interests of any Holders of the Notes and Certificates and
(B) either (a) a letter from the Rating Agency that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any Note
or the rating then assigned to any Note or (b) the consent of Holders of
Certificates evidencing a majority Percentage Interest of the Certificates and
the Indenture Trustee; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received
that are required to be distributed on any Certificate without the consent of
the related Certificateholder, or (ii) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates then outstanding.
(e) If the purpose of the amendment is to provide for the holding of
any of the Certificates in book-entry form, it shall require the consent of
Holders of all such Certificates then outstanding; provided, that the Opinion of
Counsel specified in subparagraph (a) above shall not be required.
(f) If the purpose of the amendment is to provide for the issuance of
additional certificates representing an interest in the Trust, it shall not be
necessary to obtain the consent of any Holder, but
32
the Owner Trustee and the Indenture Trustee shall be furnished with (A) an
Opinion of Counsel obtained by the Servicer to the effect that such action will
not adversely affect in any material respect the interests of any Holders, (B)
an Opinion of Counsel obtained by the Servicer to the effect that such action
will not cause the Trust to be (i) treated as an association taxable as a
corporation for federal income tax and relevant state income and franchise tax
purposes or (ii) taxable as a "publicly traded partnership" as defined in
Treasury Regulation section 1.7704-1 for federal income tax purposes and
relevant state franchise or income tax purposes and (C) a letter from the Rating
Agencies that the amendment will not result in the downgrading or withdrawal of
the rating then assigned to any Notes or the rating then assigned to the Notes.
(g) Promptly after the execution of any such amendment or consent, the
Servicer shall furnish written notification of the substance of such amendment
or consent to each Certificateholder, the Indenture Trustee and each of the
Rating Agencies. It shall not be necessary for the consent of Certificateholders
or the Indenture Trustee pursuant to this Section 10.01 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Trust Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement
to which the Trust is a party, other than this Trust Agreement, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
documents subject to such amendment and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
(i) No amendment or agreement affecting the rights or duties of the
Owner Trustee, the Certificate Registrar or the Certificate Paying Agent may be
entered into without the consent of the affected party.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State of the State of Delaware.
Section 10.02. NO LEGAL TITLE TO OWNER TRUST ESTATE. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles V
and VIII. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
Section 10.03. LIMITATIONS ON RIGHTS OF OTHERS. Except for Section
2.07, the provisions of this Trust Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders and, to the extent
expressly provided herein, the Indenture Trustee and the
33
Noteholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04. NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt, to the Owner Trustee at: Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000;
Attention: Corporate Trust Administration; to the Depositor at: Citigroup
Mortgage Loan Trust Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ______________; to the Indenture Trustee, the Certificate Registrar
and the Certificate Paying Agent at the Corporate Trust Office of the Indenture
Trustee; to Moody's at: 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention:
Residential Mortgage Monitoring Unit; to Standard & Poor's at: 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; or, as to each party, at such other address as shall
be designated by such party in a written notice to each other party.
(b) 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 Trust Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust
shall also be delivered to the Depositor.
Section 10.05. SEVERABILITY. Any provision of this Trust Agreement that
is prohibited 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 shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 10.06. SEPARATE COUNTERPARTS. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 10.07. SUCCESSORS AND ASSIGNS. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors, and
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 10.08. NO PETITION. The Owner Trustee, by entering into this
Trust Agreement and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement
34
or any of the Basic Documents. This Section shall survive for one year following
the termination of this Trust Agreement.
Section 10.09. NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Originator, the Seller, the Owner Trustee, the
Indenture Trustee, the Certificate Registrar, the Certificate Paying Agent or
any Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Trust
Agreement, the Certificates or the Basic Documents.
Section 10.10. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. INTEGRATION. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
35
IN WITNESS WHEREOF, the Depositor, the Certificate Registrar and the
Owner Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
CITIGROUP MORTGAGE LOAN TRUST INC.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
JPMORGAN CHASE BANK,
as Certificate Registrar
and Certificate Paying Agent
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Attorney-In-Fact
36
EXHIBIT A
Form of Certificate
[Face]
THIS CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT LETTER IN THE FORM OF EXHIBIT C TO
THE TRUST AGREEMENT, AN OPINION OF COUNSEL AND INVESTMENT LETTERS IN FORMS OF
EXHIBITS E AND F TO THE TRUST AGREEMENT, AS DESCRIBED IN THE TRUST AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE, SO LONG AS ANY
NOTES ARE OUTSTANDING, UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE
RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE
TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR HAS RECEIVED PROOF OF THE TRANSFEREE'S STATUS AS A REIT OR AS A
QUALIFIED REIT SUBSIDIARY, WITHIN THE MEANING OF SECTION 856(A) OR SECTION
856(I) OF THE CODE, RESPECTIVELY.
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 WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (II) IF THIS CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY
SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN
A-1
TO EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE
PURCHASE OF 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 OWNER TRUSTEE, THE
CERTIFICATE REGISTRAR OR THE SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE AN EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR
THE SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE DEPOSITOR,
THE SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR
THE BASIC DOCUMENTS.
A-2
Certificate No. Certificate Percentage Interest of
--
this Certificate: %
----------
Cut-off Date: February 1, 2004
Date of Amended and Restated First Payment Date:
Trust Agreement: March 25, 2004
February 1, 2004
Servicer: Certificate Interest Rate:
Origen Servicing, Inc. Weighted Average Pass-Through
Rate
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST 2004-A
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Contracts in Origen
Manufactured Housing Contract Trust 2004-A (the "Trust"), a Delaware statutory
trust formed by CITIGROUP MORTGAGE LOAN TRUST INC., as depositor, pursuant to
the Trust Agreement referred to below.
This certifies that is the registered owner of the Percentage Interest
represented hereby.
The Trust was created pursuant to a Short Form Trust Agreement, dated
as of January 30, 2004, between the Depositor and Wilmington Trust Company, as
owner trustee (the "Owner Trustee", which term includes any successor entity
under the Trust Agreement) (the "Short Form Trust Agreement") as amended and
restated by the Amended and Restated Trust Agreement dated as of February 1,
2004 (as amended and supplemented from time to time, together with the Short
Form Trust Agreement, the "Trust Agreement") among the Depositor, the Owner
Trustee and JPMorgan Chase Bank, as certificate registrar and certificate paying
agent, a summary of certain of the pertinent provisions of which is set forth
hereinafter. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate is one of a duly authorized issue of Trust
Certificates, Series 2004-A (herein called the "Certificates") issued under the
Trust Agreement to which reference is hereby made for a statement of the
respective rights thereunder of the Depositor, the Owner Trustee and the Holders
of the Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement. The
Owner Trust Estate consists of the Contracts in the Origen Manufactured Housing
Contract Trust 2004-A. The rights of the Holders of the Certificates are
subordinated to the rights of the Holders of the Notes, as set forth in the
Indenture.
A-3
There will be distributed on the 25th day of each month or, if such
25th day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on March 25, 2004, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding such Payment Date (the "Record Date"), such
Certificateholder's Percentage Interest in the amount to be distributed to
Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Payment Account that
have been released from the Lien of the Indenture for payment hereunder and that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Trust Agreement or, except as expressly provided in the Trust
Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture, dated as of February 1,
2004, between the Trust and JPMorgan Chase Bank, as Indenture Trustee (the
"Indenture").
The Depositor and each Certificateholder, by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for federal, state and local income tax purposes
as an equity interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Certificate Paying Agent by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.09 of the Trust Agreement.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
in such notice.
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and
A-4
laws. In the event of any such transfer, the Certificate Registrar or the
Depositor shall prior to such transfer require the transferee to execute (A)
either (i) (a) an investment letter in substantially the form attached to the
Agreement as Exhibit C (or in such form and substance reasonably satisfactory to
the Certificate Registrar and the Depositor) which investment letter shall not
be an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and which investment letter states that, among other
things, such transferee (1) is a "qualified institutional buyer" as defined
under Rule 144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (2) is aware that the
proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule 144A
or (ii) (a) a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made pursuant to said Act
and laws, which Opinion of Counsel shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and (b)
the transferee executes a representation letter, substantially in the form of
Exhibit E to the Agreement, and the transferor executes a representation letter,
substantially in the form of Exhibit F to the Agreement, each acceptable to and
in form and substance satisfactory to the Certificate Registrar and the
Depositor certifying the facts surrounding such transfer, which representation
letters shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Servicer or the Depositor and (B) the Certificate of Non-Foreign
Status (in substantially the form attached to the Agreement as Exhibit D)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. The Holder of a Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the Indenture
Trustee, the Certificate Paying Agent, the Certificate Registrar, the Servicer
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer are provided with an Opinion of Counsel which establishes to
the satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and the Servicer that the purchase of 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
Owner Trustee, the Certificate Registrar or the Servicer to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Trust Agreement, which Opinion
of Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer. In lieu of such Opinion of Counsel, a
Person may provide a certification in the form of Exhibit G to the Agreement,
which the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer may rely upon without further inquiry or investigation. Neither an
Opinion of Counsel nor a certification will be required in connection with the
initial transfer of any such Certificate by the Depositor to an affiliate of the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets of any Plan) and the Owner Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee, shall be a written representation) from the Depositor of the status of
such transferee as an affiliate of the Depositor.
A-5
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
an Opinion of Counsel, rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, to the
effect that such transfer (including any disposition permitted following any
default under any pledge or repurchase transaction) will not cause the Trust to
be (i) treated as an association taxable as a corporation for federal income tax
and relevant state income and franchise tax purposes or (ii) taxable as a
"publicly traded partnership" as defined in Treasury Regulation section 1.7704-1
for federal income tax purposes and relevant state franchise or income tax
purposes.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not entitle the Holder hereof
to any benefit under the Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
A-6
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
ORIGEN MANUFACTURED HOUSING
CONTRACT TRUST 2004-A
BY: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: February 11, 2004 By:
----------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
----------------------------------------
Authorized Signatory
or ,
-----------------------------------------
as Authenticating Agent of the Trust
By:
---------------------------------------
Authorized Signatory
A-7
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Originator, the Seller, the Servicer, the Indenture Trustee,
the Certificate Paying Agent, the Certificate Registrar, the Owner Trustee or
any Affiliates of any of them and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections and recoveries with respect to the Contracts,
all as more specifically set forth herein and in the Trust Agreement. A copy of
the Trust Agreement may be examined by any Certificateholder upon written
request during normal business hours at the principal office of the Depositor
and at such other places, if any, designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the Owner
Trustee to the effect that such amendment complies with the provisions of the
Trust Agreement and, if Origen Special Purpose, L.L.C. was not the Majority
Certificateholder, would not cause the Trust to be subject to an entity level
tax. If the purpose of the amendment is to correct any mistake, eliminate any
inconsistency, cure any ambiguity or deal with any matter not covered, it shall
not be necessary to obtain the consent of any Holder, but the Owner Trustee
shall be furnished with a letter from the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to
any Note or the rating then assigned to any Note. If the purpose of the
amendment is to prevent the imposition of any federal or state taxes at any time
that any Security is outstanding, it shall not be necessary to obtain the
consent of the any Holder, but the Owner Trustee shall be furnished with an
Opinion of Counsel that such amendment is necessary or helpful to prevent the
imposition of such taxes and is not materially adverse to any Holder. If the
purpose of the amendment is to add or eliminate or change any provision of the
Trust Agreement, other than as specified in the preceding two sentences, the
amendment shall require either (a) a letter from the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or the rating then assigned to any Note or (b) the consent
of Holders of the Certificates evidencing a majority of the Percentage Interests
of the Certificates and the Indenture Trustee; PROVIDED, HOWEVER, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate without
the consent of the related Certificateholder, or (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment without the consent of the Holders of all such Certificates then
outstanding.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trust, as provided in the Trust Agreement, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is JPMorgan Chase Bank.
A-8
Except as provided in the Trust Agreement, the Certificates are
issuable only in a minimum Certificate Percentage Interest of 10%. As provided
in the Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate as and when provided in accordance
with the terms of the Trust Agreement.
A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
*/
------------------------------
Signature Guaranteed:
*/
-----------------------
--------------------------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available
funds to
for the account of , account number
------------------------------------
, or, if mailed by check, to .
--------------------- ---------------
Applicable statements should be mailed to .
--------------------
---------------------------------
Signature of assignee or agent
(for authorization of wire
transfer only)
A-11
EXHIBIT B
CERTIFICATE OF TRUST OF
ORIGEN MANUFACTURED HOUSING CONTRACT TRUST 2004-A
THIS Certificate of Trust of Origen Manufactured Housing
Contract Trust 2004-A (the "Trust"), dated January 30, 2004, is being duly
executed and filed by Wilmington Trust Company, a Delaware banking corporation,
as trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
DEL. CODE, ss. 3801 ET SEQ.).
1. NAME. The name of the statutory trust formed hereby is
Origen Manufactured Housing Contract Trust 2004-A.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company, not in its
individual capacity but solely as owner
trustee under a Trust Agreement dated as of
January 30, 2004
By:
----------------------------
Name:
Title:
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including
numbers:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with,
the Owner Trustee and the Depositor (as defined in the Amended and Restated
Trust Agreement (the "Agreement"), dated as of February 1, 2004, among Citigroup
Mortgage Loan Trust Inc., as Depositor, Wilmington Trust Company, as Owner
Trustee, and JPMorgan Chase Bank, as Certificate Registrar and Certificate
Paying Agent) pursuant to Section 3.05 of the Agreement and JPMorgan Chase Bank,
as indenture trustee, as follows:
a. The Buyer understands that the Rule 144A
Securities have not been registered under the 1933 Act or the
securities laws of any state.
b. The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Rule 144A
Securities.
C-1
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Seller, the Indenture Trustee, the Owner Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf
has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as
that term is defined in Rule 144A under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities 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.
[3. The Buyer warrants and represents to, and covenants with,
the Seller, the Originator, the Indenture Trustee, Owner Trustee, Servicer and
the Depositor that either (1) the Buyer is (A) not an employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), or a plan (within the meaning of Section
4975(e)(1) of the Internal Revenue Code of 1986 ("Code")), which (in either
case) is subject to ERISA or Section 4975 of the Code (both a "Plan"), and (B)
is not directly or indirectly purchasing the Rule 144A Securities on behalf of,
as investment manager of, as named fiduciary of, as trustee of, or with "plan
assets" of a Plan, or (2) the Buyer understands that registration of transfer of
any Rule 144A Securities to any Plan, or to any Person acting on behalf of any
Plan, will not be made unless such Plan delivers an opinion of its counsel,
addressed and satisfactory to the Certificate Registrar, the Owner Trustee, the
Servicer and the Depositor, to the effect that the purchase and holding of the
Rule 144A Securities by, on behalf of or with "plan assets" of any Plan is
permissible under applicable law, would not constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, and would not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer to any
obligation or liability (including liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer.]
C-3
4. This document may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
---------------------------- ---------------------------------
Print Name of Seller Print Name of Buyer
By: By:
---------------------------- -----------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
---------------------------- --------------------------
Date: Date:
---------------------------- --------------------------
C-3
ANNEX 1 TO EXHIBIT C
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer 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 Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii) the Buyer
satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (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 Buyer (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 $25,000,000 as demonstrated in its
latest annual financial statements.
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by
--------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-5
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a State or
territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Buyer 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 Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISER. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans 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, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (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.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it 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 Buyer may be in reliance on Rule 144A.
C-6
Will the Buyer be purchasing the Rule 144A Yes No Securities only for the
Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer 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 Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer 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 Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
---------------------------------------------
Print Name of Buyer
By:
-----------------------------------
Name:
Title:
Date:
--------------------------------------
C-6
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer'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 Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $____________________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer 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 Buyer'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 Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit Notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
each of the parties to which this certification is made are relying and will
continue to rely on the statements made herein
C-7
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
--------------------------------------------
Print Name of Buyer
By:
----------------------------------------
Name:
Title:
IF AN ADVISER:
--------------------------------------------
Print Name of Buyer
Date:
--------------------------------------
C-8
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.03 of the Amended and Restated Trust Agreement, dated as
of February 1, 2004 (the "Trust Agreement"), among Citigroup Mortgage Loan Trust
Inc., as Depositor, Wilmington Trust Company, as Owner Trustee and JPMorgan
Chase Bank, as Certificate Registrar and Certificate Paying Agent, in connection
with the acquisition of, transfer to or possession by the undersigned, whether
as beneficial owner for U.S. federal income tax purposes (the "Beneficial
Owner"), or nominee on behalf of the Beneficial Owner of the Certificates,
Series 2004-A (the "Certificate"). Capitalized terms used but not defined in
this certificate have the respective meanings given them in the Trust Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and in
all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a
non-resident alien for purposes of U.S.
income taxation;
2. My (The Beneficial Owner's) name and home address
are:
---------------------
---------------------
---------------------; and
3. My (The Beneficial Owner's) U.S. taxpayer
identification number (Social Security
Number) is
B. Corporate, Partnership or Other Entity as Beneficial
Owner
D-1
1. (Name of the Beneficial Owner) is not a
foreign corporation, foreign partnership,
foreign trust or foreign estate (as those
terms are defined in the Code and Treasury
Regulations;
2. The Beneficial Owner's office address and
place of incorporation (if applicable) is ;
and
3. The Beneficial Owner's U.S. employer
identification number is .
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
an IRS Form W-9
---------
a form such as this or substantially similar
---------
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
D-2
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
------------------------------
Name
------------------------------
Title (if applicable)
------------------------------
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
D-3
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Origen Manufactured Housing Contract Trust 2004-A Trust
Certificates, Series 2004-A (The "Certificates")
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates,
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), nor are we acting on behalf of any such plan, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the
E-1
same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Trust
Agreement.
Very truly yours,
[TRANSFEREE]
By:
-------------------------------
Authorized Officer
E-2
EXHIBIT F
TRANSFEROR CERTIFICATE
----------------------
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Transfer of Trust Certificates,
Origen Manufactured Housing Contract Trust 2004-A
-------------------------------------------------
Gentlemen:
This certification is being made by ____________________ (the
"Transferor") in connection with the proposed Transfer to _____________________
(the "Transferee") of a trust certificate (the "Trust Certificate") representing
___% fractional undivided interest in Origen Manufactured Housing Contract Trust
2004-A (the "Trust") created pursuant to a Trust Agreement, dated as of January
30, 2004 (such agreement, as amended by the Amended and Restated Trust Agreement
dated February 1, 2004, being referred to herein as the "Trust Agreement") among
Citigroup Mortgage Loan Trust Inc. (the "Company"), Wilmington Trust Company, as
Owner Trustee (the "Owner Trustee") and JPMorgan Chase Bank, as certificate
registrar and certificate paying agent (the "Certificate Registrar"). Initially
capitalized terms used but not defined herein have the meanings assigned to them
in the Deposit Trust Agreement. The Transferor hereby certifies, represents and
warrants to, and covenants with, the Company, the Owner Trustee and the
Certificate Registrar that:
Neither the Transferor nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Trust Certificate, any
interest in any Trust 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 Trust Certificate, any interest in any
Trust Certificate or any other similar security from any person in any manner,
(c) has otherwise approached or negotiated with respect to any Trust
Certificate, any interest in any Trust 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, or (e) has taken any other action,
that (as to any of (a) through (e) above) would constitute a distribution of the
Trust Certificates under the Securities Act of 1933 (the "Act"), that would
render the disposition of any Trust Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferor will not act in any manner set
forth in the foregoing sentence with respect to any Trust Certificate. The
Transferor has not and will not sell or otherwise transfer any of the Trust
Certificates, except in compliance with the provisions of the Trust Agreement.
F-1
Date:
--------------------- ----------------------------------
Name of Transferee
----------------------------------
Signature
----------------------------------
Name
----------------------------------
Title
F-2
EXHIBIT G
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Transfer of Trust Certificates, Origen Manufactured
Housing Contract Trust 2004-A (The "Certificates")
------------------------------------------------------------
Gentlemen:
This certification is being made by (the "Transferee") in connection
with the proposed Transfer by (the "Transferor") of a trust certificate (the
"Trust Certificate") representing __% fractional undivided interest in Origen
Manufactured Housing Contract Trust 2004-A (the "Trust") created pursuant to a
Trust Agreement, dated as of January 30, 2004 (such agreement, as amended by the
Amended and Restated Trust Agreement dated February 1, 2004, being referred to
herein as the "Trust Agreement") among Citigroup Mortgage Loan Trust Inc. (the
"Company"), Wilmington Trust Company, as Owner Trustee (the "Owner Trustee") and
JPMorgan Chase Bank, as certificate registrar and certificate paying agent (the
"Certificate Registrar"). Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement. The Transferee
hereby certifies, represents and warrants to, and covenants with, the Company,
the Owner Trustee and the Certificate Registrar that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferee is not any employee benefit plan subject
to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any
Person acquiring such Certificates with "plan assets" of a Plan within
the meaning of the Department of Labor regulation promulgated at 29
C.F.R. ss.2510.3-101; or
___ b. The Transferee is an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any
Person acquiring such Certificates with "plan assets" of a Plan within
the meaning of the Department of Labor regulation promulgated at 29
C.F.R. ss.2510.3-101 and will provide the Depositor, the Owner Trustee,
the Certificate Registrar and the Servicer with an Opinion of Counsel,
satisfactory to the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer, to the effect that the purchase and holding
of a Certificate by or on behalf of the
G-1
Transferee is permissible under applicable law, will not constitute or
result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in the Trust Agreement, which opinion of
counsel shall not be an expense of the Depositor, the Owner Trustee,
the Certificate Registrar or the Servicer; and
(ii) the Transferee is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made in this paragraph.
Very truly yours,
By: _____________________________
Name: ___________________________
Title: __________________________
G-2
EXHIBIT H
FORM OF TRANSFEREE CERTIFICATE
------------------------------'
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Transfer of Trust Certificates,
Origen Manufactured Housing Contract Trust 2004-A
-------------------------------------------------
Gentlemen:
This certification is being made by ____________________ (the
"Transferee") in connection with the proposed Transfer of a trust certificate
(the "Trust Certificate") representing ___% fractional undivided interest in
Origen Manufactured Housing Contract Trust 2004-A (the "Trust") created pursuant
to a Trust Agreement, dated as of January 30, 2004 (such agreement, as amended
by the Amended and Restated Trust Agreement dated February 1, 2004, being
referred to herein as the "Trust Agreement") among Citigroup Mortgage Loan Trust
Inc. (the "Company"), Wilmington Trust Company, as Owner Trustee (the "Owner
Trustee") and JPMorgan Chase Bank, as certificate registrar and certificate
paying agent (the "Certificate Registrar"). Initially capitalized terms used but
not defined herein have the meanings assigned to them in the Deposit Trust
Agreement. The Transferee hereby certifies, represents and warrants to, and
covenants with, the Company, the Owner Trustee and the Certificate Registrar
that:
The Transferee is a REIT or a Qualified REIT Subsidiary within the
meaning of Section 856(a) or Section 856(i) of the Code, respectively.
Date:
--------------------- ----------------------------------
Name of Transferee
----------------------------------
Signature
----------------------------------
Name
----------------------------------
Title
G-2
