CITIGROUP MORTGAGE LOAN TRUST INC.
Depositor
NATIONAL CITY MORTGAGE CO.
Master Servicer
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
--------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2004
--------------------------------------------------------------
Mortgage Pass-Through Certificates
Series 2004-NCM1
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...............................................................-4-
SECTION 1.02. Allocation of Certain Interest Shortfalls..................................-74-
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans...............................................-75-
SECTION 2.02. Acceptance of REMIC I by the Trustee.......................................-78-
SECTION 2.03. Repurchase or Substitution of Mortgage Loans
by the Seller......................................................-79-
SECTION 2.04. [Reserved].................................................................-82-
SECTION 2.05. Representations, Warranties and Covenants of the Master
Servicer...................................................................-82-
SECTION 2.06. Issuance of Class R-I Interest and REMIC I Regular Interests,
Class R-II Interest and REMIC II Regular Interests.........................-84-
SECTION 2.07. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by the Trustee...................................................-84-
SECTION 2.08. Issuance of Certificates...................................................-84-
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer..................................-85-
SECTION 3.02. Sub-Servicing Agreements Between the Master Servicer and
Sub-Servicers..............................................................-87-
SECTION 3.03. Successor Sub-Servicers....................................................-88-
SECTION 3.04. Liability of the Master Servicer...........................................-88-
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and
Trustee or Certificateholders..............................................-89-
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements by
Trustee....................................................................-89-
SECTION 3.07. Collection of Certain Mortgage Loan Payments...............................-89-
SECTION 3.08. Sub-Servicing Accounts.....................................................-90-
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.........................................................-90-
SECTION 3.10. Collection Account and Distribution Account................................-91-
i
SECTION 3.11. Withdrawals from the Collection Account and Distribution
Account....................................................................-93-
SECTION 3.12. Investment of Funds in the Collection Account and the
Distribution Account.......................................................-95-
SECTION 3.13. Maintenance of the Primary Mortgage Insurance Policies;
Collections Thereunder.....................................................-96-
SECTION 3.14. Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage......................................................-97-
SECTION 3.15. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.................................................................-99-
SECTION 3.16. Realization Upon Defaulted Mortgage Loans.................................-100-
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files...........................-101-
SECTION 3.18. Servicing Compensation....................................................-103-
SECTION 3.19. Reports to the Trustee; Collection Account Statements.....................-103-
SECTION 3.20. Statement as to Compliance................................................-104-
SECTION 3.21. Independent Public Accountants' Servicing Report..........................-104-
SECTION 3.22. Access to Certain Documentation...........................................-104-
SECTION 3.23. Title, Management and Disposition of REO Property.........................-105-
SECTION 3.24. Obligations of the Master Servicer in Respect of Prepayment
Interest Shortfalls.......................................................-108-
SECTION 3.25. Obligations of the Master Servicer in Respect of Monthly
Payments..................................................................-108-
SECTION 3.26. Advance Facility..........................................................-108-
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.............................................................-110-
SECTION 4.02. Statements to Certificateholders..........................................-115-
SECTION 4.03. Remittance Reports; P&I Advances..........................................-118-
SECTION 4.04. Allocation of Extraordinary Trust Fund Expenses and
Realized Losses...........................................................-120-
SECTION 4.05. Compliance with Withholding Requirements..................................-125-
SECTION 4.06. Distributions on the REMIC I Regular Interests and REMIC
II Regular Interests......................................................-125-
SECTION 4.07. Commission Reporting......................................................-127-
SECTION 4.08. Excess Diverted Interest Reserve Account..................................-129-
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates..........................................................-131-
SECTION 5.02. Registration of Transfer and Exchange of Certificates.....................-133-
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.........................-138-
SECTION 5.04. Persons Deemed Owners.....................................................-138-
SECTION 5.05. Certain Available Information.............................................-138-
ii
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Liability of the Depositor and the Master Servicer........................-140-
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer..................................................................-140-
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer
and Others................................................................-140-
SECTION 6.04. Limitation on Resignation of the Master Servicer..........................-141-
SECTION 6.05. Rights of the Depositor in Respect of the
Master Servicer...................................................-142-
ARTICLE VII
DEFAULT
SECTION 7.01. Master Servicer Events of Default.........................................-143-
SECTION 7.02. Trustee to Act; Appointment of Successor..................................-145-
SECTION 7.03. Notification to Certificateholders........................................-146-
SECTION 7.04. Waiver of Master Servicer Events of Default...............................-147-
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.........................................................-148-
SECTION 8.02. Certain Matters Affecting the Trustee.....................................-149-
SECTION 8.03. Trustee not Liable for Certificates or Mortgage Loans.....................-150-
SECTION 8.04. Trustee May Own Certificates..............................................-151-
SECTION 8.05. Trustee's Fees and Expenses...............................................-151-
SECTION 8.06. Eligibility Requirements for Trustee......................................-152-
SECTION 8.07. Resignation and Removal of the Trustee....................................-152-
SECTION 8.08. Successor Trustee.........................................................-153-
SECTION 8.09. Merger or Consolidation of Trustee........................................-153-
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.............................-153-
SECTION 8.11. [intentionally omitted]...................................................-154-
SECTION 8.12. Appointment of Office or Agency...........................................-154-
SECTION 8.13. Representations and Warranties............................................-155-
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of the Trust
Fund......................................................................-157-
SECTION 9.02. Additional Termination Requirements.......................................-159-
iii
ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration..............................................-160-
SECTION 10.02. Prohibited Transactions and Activities............................-162-
SECTION 10.03. Master Servicer and Trustee Indemnification.......................-163-
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.........................................................-164-
SECTION 11.02. Recordation of Agreement; Counterparts............................-165-
SECTION 11.03. Limitation on Rights of Certificateholders........................-165-
SECTION 11.04. Governing Law.....................................................-166-
SECTION 11.05. Notices...........................................................-166-
SECTION 11.06. Severability of Provisions........................................-167-
SECTION 11.07. Notice to Rating Agency...........................................-167-
SECTION 11.08. Article and Section References....................................-168-
SECTION 11.09. Grant of Security Interest........................................-168-
iv
Exhibits
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Exhibit A-1 Form of Class IA-1 Certificate
Exhibit A-2 Form of Class IA-2 Certificate
Exhibit A-3 Form of Class IA-3 Certificate
Exhibit A-4 Form of Class IIA-1 Certificate
Exhibit A-5 Form of Class IIA-2 Certificate
Exhibit A-6 Form of Class IIA-3 Certificate
Exhibit A-7 Form of Class IIIA-1 Certificate
Exhibit A-8 Form of Class IIIA-2 Certificate
Exhibit A-9 Form of Class IVA-1 Certificate
Exhibit A-10 Form of Class XS-1 Certificate
Exhibit A-11 Form of Class XS-2 Certificate
Exhibit A-12 Form of Class XS-3 Certificate
Exhibit A-13 Form of Class XS-4 Certificate
Exhibit A-14 Form of Class PO-1 Certificate
Exhibit A-15 Form of Class PO-2 Certificate
Exhibit A-16 Form of Class PO-3 Certificate
Exhibit A-17 Form of Class PO-4 Certificate
Exhibit A-18 Form of Class B-1 Certificate
Exhibit A-19 Form of Class B-2 Certificate
Exhibit A-20 Form of Class B-3 Certificate
Exhibit A-21 Form of Class B-4 Certificate
Exhibit A-22 Form of Class B-5 Certificate
Exhibit A-23 Form of Class B-6 Certificate
Exhibit A-24 Form of Class R Certificate
Exhibit B [Reserved]
Exhibit C-1 Form of Trustee's Initial Certification
Exhibit C-2 Form of Trustee's Final Certification
Exhibit C-3 Form of Receipt of Mortgage Note
Exhibit D Form of Mortgage Loan Purchase Agreement
Exhibit E Request for Release
Exhibit F Form of Investment Letter
Exhibit G Form Transferor Certificate
Exhibit H Form of Residual Certificate Transfer Affidavit
Exhibit I Form of Statement as to Compliance
Exhibit J-1 Form of Certification to Be Provided by the Master Servicer with Form 10-K
Exhibit J-2 Form of Certification to Be Provided to the Master Servicer by the Trustee
Exhibit K Form of Special Servicing Agreement
Exhibit L Form of Power of Attorney
Schedule 1 Mortgage Loan Schedule
Schedule 2 Mortgage Loans covered by a Primary Mortgage Insurance Policy
v
This Pooling and Servicing Agreement, is dated and effective
as of June 1, 2004, among CITIGROUP MORTGAGE LOAN TRUST INC., as Depositor,
NATIONAL CITY MORTGAGE CO., as Master Servicer and U.S. BANK NATIONAL
ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Trust Fund created hereunder.
REMIC I
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I."
The Class R-I Interest will be the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the REMIC I Remittance Rate, the initial
Uncertificated Balance and, solely for purposes of satisfying Treasury
regulation section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC I Regular Interests (as defined herein). None of the REMIC I
Regular Interests will be certificated.
REMIC I Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- ----------------
I-LT-1 5.50% $ 83,648,590.51 July 2034
I-LT-2 6.50% $ 65,310,820.50 July 2034
I-LT-3 6.75% $ 11,664,976.74 July 0000
X-XX-0 5.50% $ 132,764,012.63 July 2034
I-LT-5 6.00% $ 66,881,708.18 July 2034
I-LT-6 6.75% $ 40,088,810.29 July 2034
I-LT-7 5.00% $ 45,716,540.80 July 2034
I-LT-8 5.50% $ 14,851,313.35 July 2034
I-LT-9 6.75% $ 14,399,087.69 July 0000
X-XX-X 5.50% $ 100.00 July 0000
X-XX-XX0 Variable(2) (3) July 2034
I-LT-XS2 Variable(2) (3) July 2034
I-LT-XS3 Variable(2) (3) July 2034
I-LT-XS4 Variable(2) (3) July 0000
X-XX-XX0 0.00% $ 820,853.00 July 0000
X-XX-XX0 0.00% $ 3,338,891.00 July 0000
X-XX-XX0 0.00% $ 1,880,290.00 July 0000
X-XX-XX0 0.00% $ 1,098,536.00 July 2034
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC I Regular
Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance Rate"
herein.
(3) REMIC I Regular Interest I-LTXS1, REMIC I Regular Interest I-LTXS2, REMIC
I Regular Interest I-LTXS3 and REMIC I Regular Interest I-LTXS4 will not
have Uncertificated Balances, but will accrue interest on their respective
Uncertificated Notional Amounts, as defined herein.
REMIC II
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Interest will be the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the REMIC II Remittance Rate, the initial Uncertificated Balance
and, solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC
II Regular Interests (as defined herein). None of the REMIC II Regular Interests
will be certificated.
REMIC II Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- ----------------
II-LT-1A 5.50% $ 405.46 July 2034
II-LT-1B 5.50% $ 83,648,185.05 July 2034
II-LT-2A 6.50% $ 313.48 July 2034
II-LT-2B 6.50% $ 65,310,507.02 July 2034
II-LT-3A 6.75% $ 56.00 July 2034
II-LT-3B 6.75% $ 11,664,920.74 July 2034
II-LT-4A 5.50% $ 653.30 July 2034
II-LT-4B 5.50% $ 132,763,359.33 July 2034
II-LT-5A 6.00% $ 321.07 July 2034
II-LT-5B 6.00% $ 66,881,387.11 July 2034
II-LT-6A 6.75% $ 192.48 July 2034
II-LT-6B 6.75% $ 40,088,617.81 July 2034
II-LT-7A 5.00% $ 228.45 July 2034
II-LT-7B 5.00% $ 45,716,311.35 July 2034
II-LT-8A 5.50% $ 71.33 July 2034
II-LT-8B 5.50% $ 14,851,242.02 July 2034
II-LT-9A 6.75% $ 74.31 July 2034
II-LT-9B 6.75% $ 14,399,013.38 July 2034
II-LT-R 5.50% $ 100.00 July 2034
II-LT-XS1 Variable(2) (3) July 2034
II-LT-XS2 Variable(2) (3) July 2034
II-LT-XS3 Variable(2) (3) July 2034
II-LT-XS4 Variable(2) (3) July 0000
XX-XX-XX0 0.00% $ 820,853.00 July 0000
XX-XX-XX0 0.00% $ 3,338,891.00 July 0000
XX-XX-XX0 0.00% $ 1,880,290.00 July 0000
XX-XX-XX0 0.00% $ 1,098,536.00 July 2034
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the month of the
maturity date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC II
Regular Interest.
(2) Calculated in accordance with the definition of "REMIC II Remittance Rate"
herein.
(3) REMIC II Regular Interest II-LTXS1, REMIC II Regular Interest II-LTXS2,
REMIC II Regular Interest II-LTXS3 and REMIC II Regular Interest II-LTXS4
not have Uncertificated Principal Balances, but will be entitled to 100%
of amounts distributed on REMIC I Regular Interest I-LTXS1, REMIC I
Regular Interest I-LTXS2, REMIC I Regular Interest I-LTXS3 and REMIC I
Regular Interest I-LTXS4, respectively.
-2-
REMIC III
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III". The Class R Certificates will be the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions under federal
income tax law. The following table irrevocably sets forth the designation, the
Pass-Through Rate, the initial Certificate Principal Balance and, solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the Classes of Regular Certificates.
Initial Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class IA-1 5.50% per annum $ 79,594,000.00 July 2034
Class IA-2 6.50% per annum $ 62,176,000.00 July 2034
Class IA-3 6.75% per annum $ 11,105,000.00 July 2034
Class IIA-1 5.50% per annum $ 126,231,000.00 July 2034
Class IIA-2 6.00% per annum $ 63,671,000.00 July 2034
Class IIA-3 6.75% per annum $ 38,164,000.00 July 2034
Class IIIA-1 5.00% per annum $ 43,432,000.00 July 2034
Class IIIA-2 5.75% per annum $ 14,138,000.00 July 2034
Class IVA-1 6.75% per annum $ 13,656,000.00 July 2034
Class R 5.50% per annum $ 100.00 July 2034
Class XS-1 6.75% per annum (3) July 2034
Class XS-2 6.75% per annum (3) July 2034
Class XS-3 5.75% per annum (3) July 2034
Class XS-4 6.75% per annum (3) July 2034
Class PO-1 0.00%(4) $ 820,853.00 July 2034
Class PO-2 0.00%(4) $ 3,338,891.00 July 2034
Class PO-3 0.00%(4) $ 1,880,290.00 July 2034
Class PO-4 0.00%(4) $ 1,098,536.00 July 2034
Class B-1 Variable(2) $ 8,926,000.00 July 2034
Class B-2 Variable(2) $ 5,066,000.00 July 2034
Class B-3 Variable(2) $ 3,136,000.00 July 2034
Class B-4 Variable(2) $ 1,688,000.00 July 2034
Class B-5 Variable(2) $ 1,448,000.00 July 2034
Class B-6 Variable(2) $ 2,894,858.00 July 2034
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates..
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The Class XS Certificates do not have Certificate Principal Balances and
are not entitled to distributions of principal. As provided herein, the
Class XS Certificates entitle the Holders thereof solely to distributions
of interest accrued on the related Notional Amount of such Certificates.
(4) The Class PO Certificates are not entitled to distributions of interest.
-3-
As of the Cut-off Date, the Original Group I Mortgage Loans
had an aggregate Scheduled Principal Balance equal to $161,445,240.74. As of the
Cut-off Date, the Original Group II Mortgage Loans had an aggregate Scheduled
Principal Balance equal to $243,073,522.06. As of the Cut-off Date, the Original
Group III Mortgage Loans had an aggregate Scheduled Principal Balance equal to
$62,448,144.15. As of the Cut-off Date, the Original Group IV Mortgage Loans had
an aggregate Scheduled Principal Balance equal to $15,497,623.69.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including, without
limitation, in the Preliminary Statement hereto, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations
described herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
"Advancing Person": As defined in Section 3.26 hereof.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Aggregate Senior Percentage": With respect to any
Distribution Date and the Class A Certificates, the lesser of (a) 100% and (b) a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class A Certificates for such Distribution
Date and the denominator of which is the sum of (i) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the Mortgage
Loans, plus (ii) the aggregate of the Non-Class PO Percentages of the Scheduled
Principal Balances of the REO Properties, in each case before reduction for any
Realized Losses on such Distribution Date.
"Applicable Fraction": For each Mortgage Loan that does not
have Mortgage Loan Components, 100%. For each Mortgage Loan that has Mortgage
Loan Components is as follows:
(i) for each Group I Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than 5.50% per annum and less than 6.50%
per annum and Subgroup IA-1, a fraction
-4-
the numerator of which is (x) 6.50% less the applicable
Expense Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 1.00%;
(ii) for each Group I Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than 5.50% per annum and less than 6.50%
per annum and Subgroup IA-2, 100.00% less a fraction the
numerator of which is (x) 6.50% less the applicable Expense
Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 1.00%;
(iii) for each Group I Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than or equal to 6.50% per annum and
less than 6.75% per annum and Subgroup IA- 2, a fraction the
numerator of which is (x) 6.75% less the applicable Expense
Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 0.25%;
(iv) for each Group I Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than or 6.50% per annum and less than
6.75% per annum and Subgroup IA-3, 100.00% less a fraction the
numerator of which is (x) 6.75% less the applicable Expense
Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 0.25%;
(v) for each Group II Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than 5.50% per annum and less than 6.00%
per annum and Subgroup IIA-1, a fraction the numerator of
which is (x) 6.00% less the applicable Expense Adjusted
Mortgage Rate on such Mortgage Loan and the denominator of
which is (y) 0.50%;
(vi) for each Group II Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than 5.50% per annum and less than 6.00%
per annum and Subgroup IIA-2, 100.00% less a fraction the
numerator of which is (x) 6.00% less the applicable Expense
Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 0.50%;
(vii) for each Group II Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than or equal to 6.00% per annum and
less than 6.75% per annum and Subgroup IIA- 2, a fraction the
numerator of which is (x) 6.75% less the applicable Expense
Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 0.75%;
(viii) for each Group II Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than or 6.00% per annum and less than
6.75% per annum and Subgroup IIA-3, 100.00% less a fraction
the numerator of which is (x) 6.75% less the applicable
Expense Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 0.75%;
(ix) for each Group III Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than 5.00% per annum and less than 5.75%
per annum and Subgroup IIIA-1, a
-5-
fraction the numerator of which is (x) 5.75% less the
applicable Expense Adjusted Mortgage Rate on such Mortgage
Loan and the denominator of which is (y) 0.75%; and
(x) for each Group III Mortgage Loan with an Expense Adjusted
Mortgage Rate greater than 5.00% per annum and less than 5.75%
per annum and Subgroup IIIA-2, 100.00% less a fraction the
numerator of which is (x) 5.75% less the applicable Expense
Adjusted Mortgage Rate on such Mortgage Loan and the
denominator of which is (y) 0.75%.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage.
"Available Distribution Amount": The Subgroup IA-1 Available
Distribution Amount, the Subgroup IA-2 Available Distribution Amount, the
Subgroup IA-3 Available Distribution Amount, the Subgroup IIA-1 Available
Distribution Amount, the Subgroup IIA-2 Available Distribution Amount, the
Subgroup IIA-3 Available Distribution Amount, the Subgroup IIIA-1 Available
Distribution Amount, the Subgroup IIIA-2 Available Distribution Amount, and/or
the Group IV Available Distribution Amount, as the context requires.
"Bankruptcy Amount": As of any date of determination, an
amount equal to the excess, if any, of (A) $100,000 over (B) the aggregate
amount of Bankruptcy Losses allocated solely to the Subordinate Certificates in
accordance with Section 4.04. After the Certificate Principal Balances of the
Subordinate Certificates are reduced to zero, the Bankruptcy Amount will be
zero.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11
of the United States Code), as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a
Realized Loss resulting from a Deficient Valuation or Debt Service Reduction.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee. Initially, the Book-Entry Certificates
will be the Class A Certificates, the Class XS Certificates, the Class PO
Certificates, the Class B-1 Certificates, the Class B-2 Certificates and the
Class B-3 Certificates.
"Book-Entry Custodian": The custodian appointed pursuant to
Section 5.01.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking or savings and loan institutions in the State of Ohio, the
State of New York, the State of Texas or in the city in which the Corporate
Trust Office of the Trustee is located, are authorized or obligated by law or
executive order to be closed.
-6-
"Cash-out Refinancing": A Refinanced Mortgage Loan the
proceeds of which are more than $1,000 in excess of the principal balance of any
existing first mortgage or subordinate mortgage on the related Mortgaged
Property and related closing costs.
"Certificate": Any one of the Citigroup Mortgage Loan Trust
Inc., Mortgage Pass- Through Certificates, Series 2004-NCM1, issued under this
Agreement.
"Certificate Factor": With respect to any Class of
Certificates as of any Distribution Date, a fraction, expressed as a decimal
carried to six places, the numerator of which is the aggregate Certificate
Principal Balance or Notional Amount of such Class of Certificates on such
Distribution Date (after giving effect to any distributions of principal and
allocations of Realized Losses and Extraordinary Trust Fund Expenses in
reduction of the Certificate Principal Balance or Notional Amount of such Class
of Certificates to be made on such Distribution Date), and the denominator of
which is the initial aggregate Certificate Principal Balance or Notional Amount
of such Class of Certificates as of the Closing Date.
"Certificate Group": Any one of Certificate Group I,
Certificate Group II, Certificate Group III or Certificate Group IV, as the
context requires.
"Certificate Group I": The Class IA-1 Certificates, the Class
IA-2 Certificates, the Class IA-3 Certificates, the Class XS-1 Certificates and
the Class PO-1 Certificates.
"Certificate Group II": The Class IIA-1 Certificates, the
Class IIA-2 Certificates, the Class IIA-3 Certificates, the Class XS-2
Certificates, the Class PO-2 Certificates and the Class R Certificates.
"Certificate Group III": The Class IIIA-1 Certificates, the
Class IIIA-2 Certificates, the Class XS-3 Certificates and the Class PO-3
Certificates.
"Certificate Group IV": The Class IVA-1 Certificates, the
Class XS-4 Certificates and the Class PO-4 Certificates.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or a Non-United States Person shall not be a Holder of
a Residual Certificate for any purposes hereof and, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or the Master Servicer or any Affiliate thereof shall be
deemed not to be outstanding and the Voting Rights to which it is entitled shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent has been obtained, except as
otherwise provided in Section 11.01. The Trustee may conclusively rely upon a
certificate of the Depositor or the Master Servicer in determining whether a
Certificate is held by an Affiliate thereof. All references herein to "Holders"
or "Certificateholders" shall reflect the rights of Certificate Owners as they
may indirectly exercise such rights through the Depository and participating
members thereof, except as otherwise specified herein; PROVIDED, HOWEVER, that
the Trustee shall be required to recognize as a "Holder" or "Certificateholder"
only the Person in whose name a Certificate is registered in the Certificate
Register.
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"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any
Certificate (other than a Class XS Certificate), as of any date of
determination, the Certificate Principal Balance of such Certificate on the
Distribution Date immediately prior to such date of determination plus any
Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.01, reduced by the aggregate of (a) all
distributions of principal made thereon on such immediately prior Distribution
Date and (b) without duplication of amounts described in clause (a) above,
reductions in the Certificate Principal Balance thereof in connection with
allocations thereto of Realized Losses on the Mortgage Loans and Extraordinary
Trust Fund Expenses on such immediately prior Distribution Date (or, in the case
of any date of determination up to and including the initial Distribution Date,
the initial Certificate Principal Balance of such Certificate, as stated on the
face thereof); PROVIDED, HOWEVER, that the Certificate Principal Balance of each
Subordinate Certificate of the Class of Subordinate Certificates outstanding
with the highest numerical designation at any given time shall not be greater
than the Percentage Interest evidenced by such Certificate multiplied by the
excess, if any, of (A) the then aggregate Stated Principal Balance of the
Mortgage Loans over (B) the then aggregate Certificate Principal Balances of all
other Classes of Certificates then outstanding. The Certificate Principal
Balance of any Class of Certificates (other than a Class of the Class XS
Certificates) as of any date of determination is equal to the aggregate of the
Certificate Principal Balances of the Certificates of such Class. The Class XS
Certificates shall not have Certificate Principal Balances and shall not be
entitled to any distributions of principal.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same class designation.
"Class A Certificate": Any Class IA-1 Certificate, Class IA-2
Certificate, Class IA-3 Certificate, Class IIA-1 Certificate, Class IIA-2
Certificate, Class IIA-3 Certificate, Class IIIA-1 Certificate, Class IIIA-2
Certificate or Class IVA-1 Certificate.
"Class A Principal Adjustment Amount": As to any Distribution
Date on which the Certificate Principal Balance of all of the Class A
Certificates related to a Subgroup have been reduced to zero, any remaining
Principal Prepayments, Liquidation Proceeds or other unscheduled payments of
principal collected in respect of the related Mortgage Loan Components or the
related Mortgage Loans in such Subgroup (and, with respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Subordinate
Certificates has been reduced to zero, any remaining scheduled payments of
principal in respect of the Mortgage Loan Components or Mortgage Loans in the
related Subgroup).
"Class IA-1 Certificate": Any one of the Class IA-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-1 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
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"Class IA-2 Certificate": Any one of the Class IA-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-2 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class IA-3 Certificate": Any one of the Class IA-3
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-3 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class IIA-1 Certificate": Any one of the Class IIA-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-4 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class IIA-2 Certificate": Any one of the Class IIA-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-5 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class IIA-3 Certificate": Any one of the Class IIA-3
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-6 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class IIIA-1 Certificate": Any one of the Class IIIA-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-7 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class IIIA-2 Certificate": Any one of the Class IIIA-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-8 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class IVA-1 Certificate": Any one of the Class IVA-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-9 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class B Percentage": Any one of the Class B-1 Percentage, the
Class B-2 Percentage, the Class B-3 Percentage, the Class B-4 Percentage, the
Class B-5 Percentage or the Class B-6 Percentage.
"Class B-1 Certificate": Any one of the Class B-1 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-18 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class B-1 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the Certificate Principal Balance of the Class B-1 Certificates
immediately prior to such date over the aggregate amount, if any, payable to the
Holders of the Class B-1 Certificates on such date pursuant to Section
4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
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"Class B-2 Certificate": Any one of the Class B-2 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-19 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class B-2 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the Certificate Principal Balance of the Class B-2 Certificates
immediately prior to such date over the aggregate amount, if any, payable to the
Holders of the Class B-2 Certificates on such date pursuant to Section
4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class B-3 Certificate": Any one of the Class B-3 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-20 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class B-3 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the Certificate Principal Balance of the Class B-3 Certificates
immediately prior to such date over the aggregate amount, if any, payable to the
Holders of the Class B-3 Certificates on such date pursuant to Section
4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class B-4 Certificate": Any one of the Class B-4 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-21 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class B-4 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the Certificate Principal Balance of the Class B-4 Certificates
immediately prior to such date over the aggregate amount, if any, payable to the
Holders of the Class B-4 Certificates on such date pursuant to Section
4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class B-5 Certificate": Any one of the Class B-5 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-22 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class B-5 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the Certificate Principal Balance of the Class B-5 Certificates
immediately prior to such date over the aggregate amount, if any, payable to the
Holders of the Class B-5 Certificates on such date pursuant to Section
4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
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"Class B-6 Certificate": Any one of the Class B-6 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-23 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class B-6 Percentage": With respect to any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the excess, if
any, of the Certificate Principal Balance of the Class B-6 Certificates
immediately prior to such date over the aggregate amount, if any, payable to the
Holders of the Class B-6 Certificates on such date pursuant to Section
4.01(b)(i)(Z), and the denominator of which is the aggregate Certificate
Principal Balance of the Subordinate Certificates immediately prior to such
date.
"Class PO Certificate": Any Class PO-1 Certificate, Class PO-2
Certificate, Class PO- 3 Certificate or Class PO-4 Certificate.
"Class PO Mortgage Loan": Each Group I Mortgage Loan with an
Expense Adjusted Mortgage Rate below 5.50% per annum as of the Cut-off Date,
each Group II Mortgage Loan with an Expense Adjusted Mortgage Rate below 5.50%
per annum as of the Cut-off Date, each Group III Mortgage Loan with an Expense
Adjusted Mortgage Rate below 5.00% per annum as of the Cut-off Date and each
Group IV Mortgage Loan with an Expense Adjusted Mortgage Rate below 6.75% per
annum as of the Cut-off Date.
"Class PO Percentage": With respect to each Class PO Mortgage
Loan, the Class PO- 1 Percentage, the Class PO-2 Percentage, the Class PO-3
Percentage or the Class PO-4 Percentage, as applicable.
"Class PO Principal Distribution Amount": For any Distribution
Date and any Class of Class PO Certificates, an amount equal to the aggregate
of:
(a) the sum of the following:
(i) the Class PO-1 Percentage, the Class PO-2
Percentage, the Class PO-3 Percentage or the Class PO-4
Percentage, as applicable, of the principal portion of each
Monthly Payment due during the related Due Period in respect
of each related Class PO Mortgage Loan whether or not
received;
(ii) the Class PO-1 Percentage, the Class PO-2
Percentage, the Class PO-3 Percentage or the Class PO-4
Percentage, as applicable, of the principal portion of all
Insurance Proceeds, Liquidation Proceeds (other than amounts
described in clause (c) below) and Subsequent Recoveries
received in respect of each related Class PO Mortgage Loan
during the related Prepayment Period (other than any such
related Class PO Mortgage Loan that was purchased, sold or
replaced pursuant to or as contemplated by Section 2.03 or
Section 9.01 during the related Prepayment Period), net of any
portion thereof that represents a recovery of principal for
which an advance was made by the Master Servicer pursuant to
Section 4.03 in respect of a preceding Distribution Date;
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(iii) the Class PO-1 Percentage, the Class PO-2
Percentage, the Class PO-3 Percentage or the Class PO-4
Percentage, as applicable, of the Stated Principal Balance
(calculated immediately prior to such Distribution Date) of
each related Class PO Mortgage Loan that was purchased, sold
or replaced pursuant to or as contemplated by Section 2.03 or
Section 9.01 during the related Prepayment Period;
(iv) the Class PO-1 Percentage, the Class PO-2
Percentage, the Class PO-3 Percentage or the Class PO-4
Percentage, as applicable, of all REO Principal Amortization
collected in respect of any REO Property during the related
Prepayment Period; and
(v) in connection with the substitution of one or
more Qualified Substitute Mortgage Loans for one or more
Deleted Mortgage Loans which were Class PO Mortgage Loans
pursuant to Section 2.03 during the related Prepayment Period,
the excess, if any, of (A) the Class PO-1 Percentage, the
Class PO-2 Percentage, the Class PO-3 Percentage or the Class
PO-4 Percentage, as applicable, of the aggregate of the Stated
Principal Balances (calculated as of the respective dates of
substitution) of such Deleted Mortgage Loans, net of the
aggregate of the Class PO-1 Percentage, the Class PO-2
Percentage, the Class PO-3 Percentage or the Class PO-4
Percentage, as applicable, of the principal portions of the
Monthly Payments due during the related Prepayment Period (to
the extent received from the related Mortgagor or advanced by
the Master Servicer and distributed pursuant to Section 4.01
on the Distribution Date in the related Prepayment Period) in
respect of each such Deleted Mortgage Loan that was replaced
prior to the Distribution Date in the related Prepayment
Period, over (B) the Class PO-1 Percentage, the Class PO-2
Percentage, the Class PO-3 Percentage or the Class PO-4
Percentage, as applicable, of the Stated Principal Balances
(calculated as of the respective dates of substitution) of
such Qualified Substitute Mortgage Loans;
(b) the Class PO-1 Percentage, the Class PO-2 Percentage, the
Class PO-3 Percentage or the Class PO-4 Percentage, as applicable, of
all Principal Prepayments received in respect of each related Class PO
Mortgage Loan during the related Prepayment Period;
(c) with respect to any related Class PO Mortgage Loan which
was the subject of a Final Recovery Determination in the related
Prepayment Period, the Class PO-1 Percentage, the Class PO-2
Percentage, the Class PO-3 Percentage or the Class PO-4 Percentage, as
applicable, of the Stated Principal Balance of such Mortgage Loan at
the time of such Final Recovery Determination (net of the principal
portion of any Realized Loss allocated to the related Class PO
Certificates) to the extent of the principal portion of all Liquidation
Proceeds with respect to such related Class PO Mortgage Loan;
(d) on any Distribution Date on which any Class of Subordinate
Certificates remain outstanding, the excess, if any, of the related
Class PO Percentage of the Stated Principal Balance of each related
Class PO Mortgage Loan as to which a Final Liquidation
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has occurred, over the amount distributed in respect of such Class PO
Mortgage Loan to the related Class PO Certificates pursuant to clause
(c) above; and
(e) in the case of any Distribution Date subsequent to the
initial Distribution Date, an amount equal to the excess, if any, of
the related Class PO Principal Distribution Amount for the immediately
preceding Distribution Date, over the aggregate distributions of
principal made in respect of the related Class PO Certificates on such
immediately preceding Distribution Date pursuant to Section 4.01 to the
extent that any such amounts are not attributable to Realized Losses
which were allocated to the Subordinate Certificates pursuant to
Section 4.04.
"Class PO-1 Certificate": Any one of the Class PO-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-14 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class PO-1 Percentage": With respect to each Class PO
Mortgage Loan in Loan Group I, the quotient of (i) 5.50% per annum minus the
related Expense Adjusted Mortgage Rate divided by (ii) 5.50% per annum. With
respect to each other Mortgage Loan in Loan Group I, 0.000% per annum.
"Class PO-2 Certificate": Any one of the Class PO-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-15 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class PO-2 Percentage": With respect to each Class PO
Mortgage Loan in Loan Group II, the quotient of (i) 5.50% per annum minus the
related Expense Adjusted Mortgage Rate divided by (ii) 5.50% per annum. With
respect to each other Mortgage Loan in Loan Group II, 0.000% per annum.
"Class PO-3 Certificate": Any one of the Class PO-3
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-16 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class PO-3 Percentage": With respect to each Class PO
Mortgage Loan in Loan Group III, the quotient of (i) 5.00% per annum minus the
related Expense Adjusted Mortgage Rate divided by (ii) 5.00% per annum. With
respect to each other Mortgage Loan in Loan Group III, 0.000% per annum.
"Class PO-4 Certificate": Any one of the Class PO-3
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-17 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class PO-4 Percentage": With respect to each Class PO
Mortgage Loan in Loan Group IV, the quotient of (i) 6.75% per annum minus the
related Expense Adjusted Mortgage Rate divided by (ii) 6.75% per annum. With
respect to each other Mortgage Loan in Loan Group IV, 0.000% per annum.
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"Class R Certificate": Any one of the Class R Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-24 and evidencing the ownership of the Class R-I
Interest, the Class R-II Interest and the Class R-III Interest for purposes of
the REMIC Provisions.
"Class R-I Interest": The Residual Interest in REMIC I for the
purposes of the REMIC Provisions.
"Class R-II Interest": The Residual Interest in REMIC II for
the purposes of the REMIC Provisions.
"Class R-III Interest": The Residual Interest in REMIC III for
the purposes of the REMIC Provisions.
"Class XS Certificate": Any Class XS-1 Certificate, Class XS-2
Certificate, Class XS- 3 Certificate or Class XS-4 Certificate.
"Class XS-1 Certificate": Any one of the Class XS-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-10 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions. The Class XS-1 Certificates
shall not have a Certificate Principal Balance and shall not be entitled to any
distributions of principal.
"Class XS-2 Certificate": Any one of the Class XS-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-11 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions. The Class XS-2 Certificates
shall not have a Certificate Principal Balance and shall not be entitled to any
distributions of principal.
"Class XS-3 Certificate": Any one of the Class XS-3
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-12 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions. The Class XS-3 Certificates
shall not have a Certificate Principal Balance and shall not be entitled to any
distributions of principal.
"Class XS-4 Certificate": Any one of the Class XS-4
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-13 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions. The Class XS-4 Certificates
shall not have a Certificate Principal Balance and shall not be entitled to any
distributions of principal.
"Class XS Mortgage Loan": Each Group I Mortgage Loan with an
Expense Adjusted Mortgage Rate equal to or greater than 6.75% per annum as of
the Cut-off Date, each Group II Mortgage Loan with an Expense Adjusted Mortgage
Rate equal to or greater than 6.75% per annum as of the Cut-off Date, each Group
III Mortgage Loan with an Expense Adjusted Mortgage Rate equal to or greater
than 5.75% per annum as of the Cut-off Date and each Group IV Mortgage Loan
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with an Expense Adjusted Mortgage Rate equal to or greater than 6.75% per annum
as of the Cut-off Date.
"Closing Date": June 29, 2004.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The account or accounts created and
maintained by the Master Servicer pursuant to Section 3.10(a), which shall be
entitled, "National City Mortgage Co., as Master Servicer for U.S. Bank National
Association, as Trustee, in trust for the registered holders of Citigroup
Mortgage Loan Trust Inc., Mortgage Pass-Through Certificates, Series 2004-NCM1."
The Collection Account must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": With respect to the Master Servicer
or the Special Servicer, as applicable, an amount equal to the lesser of (i) the
aggregate of the Prepayment Interest Shortfalls for the related Distribution
Date resulting solely from Principal Prepayments during the related Prepayment
Period and (ii) the amount of the aggregate Servicing Fee for the most recently
ended calendar month.
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at 00 Xxxxxxxxxx Xxxxxx,
XX-XX-XX0X, Xx. Xxxx, Xxxxxxxxx 00000-0000, Attn: Structured Finance/CMLTI 2004-
NCM1, or such other address as the Trustee may designate from time to time by
notice to the Certificateholders, the Depositor, the Master Servicer and the
Seller.
"Corresponding Subgroup": With respect to each REMIC I Regular
Interest, REMIC II Regular Interest or Certificate, as follows:
REMIC I Regular Interest, REMIC II Regular Interest or
Certificate Subgroup
----------- --------
REMIC I Regular Interest I-LT-1 IA-1
REMIC I Regular Interest I-LT-2 IA-2
REMIC I Regular Interest I-LT-3 IA-3
REMIC I Regular Interest I-LT-4 IIA-1
REMIC I Regular Interest I-LT-5 IIA-2
REMIC I Regular Interest I-LT-6 IIA-3
REMIC I Regular Interest I-LT-7 IIIA-1
REMIC I Regular Interest I-LT-8 IIIA-2
REMIC I Regular Interest I-LT-9 NA
REMIC I Regular Interest I-LT-XS1 IA-3
REMIC I Regular Interest I-LT-XS2 IIA-3
REMIC I Regular Interest I-LT-XS3 IIIA-2
REMIC I Regular Interest I-LT-XS4 NA
REMIC I Regular Interest I-LT-PO1 IA-1
REMIC I Regular Interest I-LT-PO2 IIA-1
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REMIC I Regular Interest I-LT-PO3 IIIA-1
REMIC I Regular Interest I-LT-PO4 NA
REMIC I Regular Interest I-LT-R IIIA-2
REMIC II Regular Interest II-LT-1A IA-1
REMIC II Regular Interest II-LT-1B IA-1
REMIC II Regular Interest II-LT-2A IA-2
REMIC II Regular Interest II-LT-2B IA-2
REMIC II Regular Interest II-LT-3A IA-2
REMIC II Regular Interest II-LT-3B IA-3
REMIC II Regular Interest II-LT-4A IIA-1
REMIC II Regular Interest II-LT-4B IIA-1
REMIC II Regular Interest II-LT-5A IIA-2
REMIC II Regular Interest II-LT-5B IIA-2
REMIC II Regular Interest II-LT-6A IIA-3
REMIC II Regular Interest II-LT-6B IIA-3
REMIC II Regular Interest II-LT-7A IIIA-1
REMIC II Regular Interest II-LT-7B IIIA-1
REMIC II Regular Interest II-LT-8A IIIA-2
REMIC II Regular Interest II-LT-8B IIIA-2
REMIC II Regular Interest II-LT-9A NA
REMIC II Regular Interest II-LT-9B NA
REMIC II Regular Interest II-LT-XS1 IA-3
REMIC II Regular Interest II-LT-XS2 IIA-3
REMIC II Regular Interest II-LT-XS3 IIIA-2
REMIC II Regular Interest II-LT-XS4 NA
REMIC II Regular Interest II-LT-PO1 IA-1
REMIC II Regular Interest II-LT-PO2 IIA-1
REMIC II Regular Interest II-LT-PO3 IIIA-1
REMIC II Regular Interest II-LT-PO4 NA
REMIC II Regular Interest II-LT-R IIIA-2
Class IA-1 IA-1
Class IA-2 IA-2
Class IA-3 IA-3
Class IIA-1 IIA-1
Class IIA-2 IIA-2
Class IIA-3 IIA-3
Class IIIA-1 IIIA-1
Class IIIA-2 IIIA-2
Class IVA-1 NA
Class XS-1 IA-3
Class XS-2 IIA-3
Class XS-3 IIIA-2
Class XS-4 NA
Class PO-1 IA-1
Class PO-2 IIA-1
Class PO-3 IIIA-1
Class PO-4 NA
"Cut-off Date": With respect to each Original Mortgage Loan,
June 1, 2004. With respect to all Qualified Substitute Mortgage Loans, their
respective dates of substitution. References
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herein to the "Cut-off Date," when used with respect to more than one Mortgage
Loan, shall be to the respective Cut-off Dates for such Mortgage Loans.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction resulting from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the Bankruptcy
Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage Loan.
"Depositor": Citigroup Mortgage Loan Trust Inc., a Delaware
corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
CEDE & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
"Depository Institution": Any depository institution or trust
company, including the Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "A-1" or better by Fitch or "P-1" or better by Moody's, if rated by
Moody's (or comparable ratings if Fitch and Moody's are not the Rating
Agencies).
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": With respect to each Distribution Date,
the 15th day of the calendar month in which such Distribution Date occurs or, if
such 15th day is not a Business Day, the Business Day immediately preceding such
15th day.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work
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thereon or any use of such REO Property in a trade or business conducted by
REMIC I, other than through an Independent Contractor; PROVIDED, HOWEVER, that
the Trustee (or the Master Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Master Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
"Disqualified Organization": Any of the following: (i) the
United States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for Xxxxxxx Mac, a majority of its board of directors
is not selected by such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an "electing
large partnership" within the meaning of Section 775 of the Code and (vi) any
other Person so designated by the Trustee based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Residual Certificate by such Person
may cause REMIC I or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distribution Account": The trust account or accounts created
and maintained by the Trustee pursuant to Section 3.10(b) which shall be
entitled "U.S. Bank National Association, as Trustee, in trust for the
registered holders of Citigroup Mortgage Loan Trust Inc., Mortgage Pass- Through
Certificates, Series 2004-NCM1." The Distribution Account must be an Eligible
Account.
"Distribution Date": The 25th day of any month, or if such
25th day is not a Business Day, the Business Day immediately following such 25th
day, commencing in July 2004.
"Diverted Interest Amount": With respect to any Distribution
Date, one month's interest accrued during the related Interest Accrual Period on
the related Overcollateralized Amount at the Pass-Through Rate for the Class A
Certificates related to the Undercollateralizated Subgroup or Subgroups and any
other unpaid interest shortfalls on the Class A Certificates related to the
Undercollateralizated Subgroup or Subgroups, to the extent available (with
overcollateralization and undercollateralization calculated, for purposes of
this definition, as of the prior Distribution Date after taking into account all
distributions and Realized Loss allocations that occurred on such prior
Distribution Date).
"DOL": The United States Department of Labor or any successor
in interest.
"DOL Regulations": The regulations promulgated by the DOL at
29 C.F.R. ss.2510.3- 101.
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"Due Date": With respect to each Distribution Date, the first
day of the calendar month in which such Distribution Date occurs, which is the
day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace (or, in the case of any Mortgage Loan which has
its Monthly Payment due on a day each calendar month other than the first day of
each calendar month, the date that such Monthly Payment is due and which falls
within the Due Period relating to such Distribution Date).
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the calendar month preceding the calendar
month in which such Distribution Date occurs and ending on first day of the
calendar month in which such Distribution Date occurs.
"Eligible Account": Any of (i) an account or accounts
maintained with a Depository Institution, (ii) an account or accounts the
deposits in which are fully insured by the FDIC or (iii) a trust account or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Estate in Real Property": A fee simple estate in a parcel of
land.
"Excess Bankruptcy Loss": Any Bankruptcy Loss, or portion
thereof, which exceeds the then applicable Bankruptcy Amount.
"Excess Diverted Interest Reserve Account": The account
established and maintained pursuant to Section 4.08.
"Excess Diverted Interest Reserve Amount": With respect to the
Class A Certificates and any Distribution Date, an amount equal to the excess,
if any, of (i) one month's interest accrued during the related Interest Accrual
Period on the Overcollateralized Amount at the Pass-Through Rate for the Class A
Certificates relating to the Overcollateralizated Subgroup or Subgroups over
(ii) the Diverted Interest Amount (with overcollateralization and
undercollateralization calculated, for purposes of this definition, as of the
prior Distribution Date after taking into account all distributions and Realized
Loss allocations that occurred on such prior Distribution Date).
"Excess Fraud Loss": Any Fraud Loss, or portion thereof, which
exceeds the then applicable Fraud Loss Amount.
"Excess Loss": Any Excess Bankruptcy Loss, Excess Special
Hazard Loss, Excess Fraud Loss or Extraordinary Loss.
"Excess Special Hazard Loss": Any Special Hazard Loss, or
portion thereof, that exceeds the then applicable Special Hazard Amount.
"Expense Adjusted Mortgage Rate": With respect to any Mortgage
Loan (or the related REO Property), as of any Distribution Date, a per annum
rate of interest equal to the
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applicable Mortgage Rate thereon as of the first day of the month preceding the
month in which the Distribution Date occurs minus the sum of (i) the Trustee Fee
Rate, (ii) the Servicing Fee Rate and (iii) the rate at which the premium
payable in connection with any lender-paid Primary Mortgage Insurance Policy is
calculated, if applicable.
"Extraordinary Loss": Any Realized Loss or portion thereof
caused by or resulting from:
(i) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled and whether such loss be direct or indirect, proximate or
remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(ii) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an
actual, impending or expected attack by any government or sovereign
power, DE JURE or DE FACTO, or by any authority maintaining or using
military, naval or air forces, or by military, naval or air forces, or
by an agent of any such government, power, authority or forces;
(iii) any weapon of war employing atomic fission or
radioactive forces whether in time of peace or war, and
(iv) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering, combating
or defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any
government or public authority, or risks of contraband or illegal
transactions or trade.
"Extraordinary Trust Fund Expenses": Any amounts reimbursable
to the Master Servicer or the Depositor pursuant to Section 6.03, any amounts
payable from the Distribution Account in respect of taxes pursuant to Section
10.01(g)(iii), any amounts reimbursable to the Trustee from the Trust Fund
pursuant to Section 2.01, Section 7.01, Section 7.02 or Section 8.05 and any
other costs, expenses, liabilities and losses borne by the Trust Fund (exclusive
of any cost, expense, liability or loss that is specific to a particular
Mortgage Loan or REO Property and is taken into account in calculating a
Realized Loss in respect thereof) for which the Trust Fund has not and, in the
reasonable good faith judgment of the Trustee, shall not, obtain reimbursement
or indemnification from any other Person.
"Xxxxxx Xxx": Xxxxxx Xxx, formerly known as the Federal
National Mortgage Association, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Seller, the Depositor or the Master Servicer pursuant to or as
contemplated by Section 2.03 or Section 9.01), a
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determination made by the Master Servicer that all Liquidation Proceeds have
been recovered. The Master Servicer shall maintain records of each Final
Recovery Determination made thereby.
"Fitch": Fitch Ratings or its successor in interest.
"Fraud Loss": Any Realized Loss or portion thereof sustained
by reason of a default arising from intentional fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including by
reason of the denial of coverage under any related Primary Mortgage Insurance
Policy.
"Fraud Loss Amount": As of any date of determination after the
Cut-off Date, an amount equal to: (x) prior to the first anniversary of the
Cut-off Date an amount equal to 2.00% of the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud Losses
on the Mortgage Loans allocated solely to the Subordinate Certificates in
accordance with Section 4.04 since the Cut-off Date up to such date of
determination and (y) from the first to the fifth anniversary of the Cut-off
Date, an amount equal to (1) the lesser of (a) the Fraud Loss Amount as of the
most recent anniversary of the Cut-off Date and (b) 1.00% of the aggregate
outstanding principal balance of all of the Mortgage Loans as of the most recent
anniversary of the Cut-off Date minus (2) the Fraud Losses on the Mortgage Loans
allocated solely to the Subordinate Certificates in accordance with Section 4.04
since the Cut-off Date up to such date of determination. In addition, after the
Certificate Principal Balances of the Subordinate Certificates are reduced to
zero, the Fraud Loss Amount will be zero.
"Xxxxxxx Mac": Xxxxxxx Mac, formally known as the Federal Home
Loan Mortgage Corporation, or any successor thereto.
"Group I Mortgage Loan": A Mortgage Loan identified as a Group
I Mortgage Loan on the Mortgage Loan Schedule.
"Group I Mortgage Loan Component": With respect to each Group
I Mortgage Loan (except for Group I Mortgage Loans with an Expense Adjusted
Mortgage Rate (i) less than or equal to 5.50% per annum or (ii) greater than or
equal to 6.75% per annum), any of the two related components based on the
Applicable Fraction.
"Group I Senior Certificates": The Certificates in Certificate
Group I.
"Group II Mortgage Loan": A Mortgage Loan identified as a
Group II Mortgage Loan on the Mortgage Loan Schedule.
"Group II Mortgage Loan Component": With respect to each Group
II Mortgage Loan (except for Group II Mortgage Loans with an Expense Adjusted
Mortgage Rate (i) less than or equal to 5.50% per annum or (ii) greater than or
equal to 6.75% per annum), any of the two related components based on the
Applicable Fraction.
"Group II Senior Certificates": The Certificates in
Certificate Group II.
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"Group III Mortgage Loan": A Mortgage Loan identified as a
Group III Mortgage Loan on the Mortgage Loan Schedule.
"Group III Mortgage Loan Component": With respect to each
Group III Mortgage Loan (except for Group III Mortgage Loans with an Expense
Adjusted Mortgage Rate (i) less than or equal to 5.00% per annum or (ii) greater
than or equal to 5.75% per annum), any of the two related components based on
the Applicable Fraction.
"Group III Senior Certificates": The Certificates in
Certificate Group III.
"Group IV Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (1) the sum of (a) the aggregate of the
amounts on deposit in the Collection Account and Distribution Account with
respect to the Group IV Mortgage Loans as of the close of business on the
related Determination Date including any Subsequent Recoveries with respect to
the Group IV Mortgage Loans, (b) the aggregate of any amounts received in
respect of an REO Property relating to a Group IV Mortgage Loan withdrawn from
any REO Account and deposited in the Distribution Account for such Distribution
Date pursuant to Section 3.23, (c) the aggregate of any amounts deposited in the
Distribution Account by the Master Servicer in respect of Prepayment Interest
Shortfalls on the Group IV Mortgage Loans for such Distribution Date pursuant to
Section 3.24 and (d) the aggregate of any P&I Advances made by the Master
Servicer or Special Servicer for such Distribution Date with respect to the
Group IV Mortgage Loans pursuant to Section 4.03, reduced (to not less than
zero) by (2) the portion of the amount described in clause (1)(a) above that
represents (i) Monthly Payments on the Group IV Mortgage Loans received from a
Mortgagor on or prior to the Determination Date but due during any Due Period
subsequent to the related Due Period, (ii) Principal Prepayments on the Group IV
Mortgage Loans received after the related Prepayment Period (together with any
interest payments received with such Principal Prepayments to the extent they
represent the payment of interest accrued on the Group IV Mortgage Loans during
a period subsequent to the related Prepayment Period), (iii) Liquidation
Proceeds, Insurance Proceeds and Subsequent Recoveries received in respect of
the Group IV Mortgage Loans after the related Prepayment Period, (iv) amounts
reimbursable or payable with respect to the Group IV Mortgage Loans to the
Depositor, the Master Servicer, the Trustee, the Seller or any Sub-Servicer
pursuant to Section 3.11(a) or Section 3.12 or otherwise payable in respect of
Extraordinary Trust Fund Expenses, (v) the Trustee Fee attributable to the Group
IV Mortgage Loans payable from the Distribution Account pursuant to Section 8.05
and (vi) amounts deposited in the Collection Account or the Distribution Account
in error with respect to the Group IV Mortgage Loans. Notwithstanding the
foregoing, the Group IV Available Distribution Amount for any Distribution Date
shall be increased (in the case of an Undercollateralizated Subgroup with
respect to Loan Group IV) or decreased (in the case of an Overcollateralizated
Subgroup with respect to Loan Group IV) by any applicable Diverted Interest
Amount or Class A Principal Adjustment Amount, in each case for such
Distribution Date. The Group IV Available Distribution Amount shall not include
any Prepayment Interest Excess related to the Group IV Mortgage Loans.
"Group IV Excess Diverted Interest Reserve Deposit": An amount
withdrawn from the Excess Diverted Interest Reserve Account equal to the lesser
of (i) the amount on deposit in the Excess Diverted Interest Reserve Account and
(ii) the sum of (a) any interest shortfalls on the Class
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A Certificates in Certificate Group IV and (b) the aggregate amount of Realized
Losses on the Group IV Mortgage Loans on such Distribution Date.
"Group IV Mortgage Loan": A Mortgage Loan identified as a
Group IV Mortgage Loan on the Mortgage Loan Schedule.
"Group IV Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of the
Scheduled Principal Balances of the Group IV Mortgage Loans plus (b) the
aggregate of the Non-Class PO Percentages of the Scheduled Principal Balances of
the REO Properties in Loan Group IV over (ii) the aggregate Certificate
Principal Balance of the Class A Certificates in Certificate Group IV
immediately after payment of the related Senior Principal Distribution Amount,
in each case, after scheduled and unscheduled payments in respect of principal
were received or advanced.
"Group IV Senior Certificates": The Certificates in
Certificate Group IV.
"Group IV Senior Percentage": With respect to any Distribution
Date and the Class A Certificates in Certificate Group IV, the lesser of (a)
100% and (b) a fraction, expressed as a percentage, the numerator of which is
the excess, if any, of the aggregate Certificate Principal Balance of the Class
A Certificates in Certificate Group IV for such Distribution Date over the
aggregate amount, if any, payable to the Holders of the Class A Certificates in
Certificate Group IV on such date pursuant to clause (d) of the definition of
"Senior Principal Distribution Amount," and the denominator of which is the sum
of (i) the aggregate of the Non-Class PO Percentages of the Scheduled Principal
Balances of the Group IV Mortgage Loans, plus (ii) the aggregate of the Non-
Class PO Percentages of the Scheduled Principal Balances of the REO Properties
in Loan Group IV, in each case before reduction for any Realized Losses on such
Distribution Date.
"Group IV Senior Prepayment Percentage": With respect to any
Distribution Date within the range indicated below and the Class A Certificates
in Certificate Group IV, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Group IV Senior Percentage plus 70% of the Group IV Subordinate
Percentage
July 2010 through June 2011 Group IV Senior Percentage plus 60% of the Group IV Subordinate
Percentage
July 2011 through June 2012 Group IV Senior Percentage plus 40% of the Group IV Subordinate
Percentage
July 2012 through June 2013 Group IV Senior Percentage plus 20% of the Group IV Subordinate
Percentage
July 2013 and thereafter Group IV Senior Percentage
PROVIDED, HOWEVER, no reduction to the Group IV Senior Prepayment Percentage
described above shall be made as of any Distribution Date unless (i) the
outstanding principal balance of the
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Mortgage Loans delinquent 60 days or more (including REO Properties and Mortgage
Loans in foreclosure) averaged over the last six months does not exceed 50% of
the sum of the then current Certificate Principal Balances of the Subordinate
Certificates and (ii) Realized Losses on the Mortgage Loans to date are less
than the then applicable Trigger Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Group IV Senior Prepayment Percentage
will be the greater of (x) the Group IV Senior Prepayment Percentage for such
Distribution Date or (y) the Group IV Senior Prepayment Percentage for the
immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Group IV Senior
Prepayment Percentage shall be 100%.
"Group IV Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Group IV Senior Percentage for such Distribution Date.
"Group IV Subordinate Prepayment Percentage": With respect to
the Subordinate Certificates and any Distribution Date, 100% minus the Group IV
Senior Prepayment Percentage for such Distribution Date.
"Independent": When used with respect to any specified Person,
any such Person who (a) is in fact independent of the Depositor, the Master
Servicer and their respective Affiliates, (b) does not have any direct financial
interest in or any material indirect financial interest in the Depositor, the
Master Servicer or any Affiliate thereof, and (c) is not connected with the
Depositor, the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; PROVIDED, HOWEVER, that a Person shall not fail to be Independent of
the Depositor, the Master Servicer or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor or the Master Servicer or any Affiliate thereof, as the case
may be.
"Independent Contractor": Either (i) any Person (other than
the Master Servicer) that would be an "independent contractor" with respect to
REMIC I within the meaning of Section 856(d)(3) of the Code if REMIC I were a
real estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as REMIC I does
not receive or derive any income from such Person and provided that the
relationship between such Person and the Trust Fund is at arm's length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Master Servicer) if the Trustee has received an
Opinion of Counsel to the effect that the taking of any action in respect of any
REO Property by such Person, subject to any conditions therein specified, that
is otherwise herein contemplated to be taken by an Independent Contractor will
not cause such REO Property to cease to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
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"Insurance Proceeds": Proceeds of any Primary Mortgage
Insurance Policy title policy, hazard policy or other insurance policy covering
a Mortgage Loan, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the Mortgagor in
accordance with the procedures that the Master Servicer would follow in
servicing mortgage loans held for its own account, subject to the terms and
conditions of the related Mortgage Note and Mortgage.
"Interest Accrual Period": With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class PO
Certificates), the one-month period ending on the last day of the calendar month
preceding the month in which such Distribution Date occurs.
"Interest Distribution Amount": With respect to any Class of
Regular Certificates (other than the Class PO Certificates) for any Distribution
Date, an amount equal to one month's interest accrued during the most recently
ended Interest Accrual Period at the applicable Pass- Through Rate on the
Certificate Principal Balance or Notional Amount thereof immediately prior to
such Distribution Date. The Class PO Certificates are not entitled to
distributions in respect of interest and, accordingly, will not accrue interest.
The Interest Distribution Amount for any Class of Regular Certificates (a) will
also include, in the case of any Distribution Date subsequent to the initial
Distribution Date, the excess, if any, of the Interest Distribution Amount in
respect of such Certificates for the immediately preceding Distribution Date,
over the aggregate distributions of interest made in respect of such
Certificates pursuant to Section 4.01(a) on such immediately preceding
Distribution Date, and (b) will be reduced, in the case of any Distribution
Date, by the amount of any Prepayment Interest Shortfalls (to the extent not
covered by payments by the Master Servicer or the Special Servicer pursuant to
Section 3.24) and Relief Act Interest Shortfalls that were allocated to such
Certificates on such Distribution Date pursuant to Section 1.02. The Interest
Distribution Amount for any Class of Certificates will be based on a 360 day
year consisting of twelve 30 day Interest Accrual Periods.
"Late Collections": With respect to any Mortgage Loan, all
amounts received subsequent to the Determination Date immediately following any
Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent for
such Due Period and not previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from REMIC I by reason of its being purchased, sold or replaced
pursuant to or as contemplated by Section 2.03 or Section 9.01. With respect to
any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from REMIC I by reason of its being purchased pursuant to Section 9.01.
"Liquidation Proceeds": The amount (including any Insurance
Proceeds or amounts received in respect of the rental of any REO Property prior
to REO Disposition) received by the Master Servicer in connection with (i) the
taking of all or a part of a Mortgaged Property by exercise
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of the power of eminent domain or condemnation, (ii) the liquidation of a
defaulted Mortgage Loan through a trustee's sale, foreclosure sale or otherwise,
or (iii) the repurchase, substitution or sale of a Mortgage Loan or an REO
Property pursuant to or as contemplated by Section 2.03, Section 3.23 or Section
9.01.
"Loan Group": Any of Loan Group I, Loan Group II, Loan Group
III or Loan Group IV.
"Loan Group I": The Loan Group consisting of the Group I
Mortgage Loans. With respect to the Group I Senior Certificates, Loan Group I is
sometimes referred to herein as the related Loan Group and the Mortgage Loans in
such Loan Group are sometimes referred to herein as the related Mortgage Loans.
"Loan Group II": The Loan Group consisting of the Group II
Mortgage Loans. With respect to the Group II Senior Certificates, Loan Group II
is sometimes referred to herein as the related Loan Group and the Mortgage Loans
in such Loan Group are sometimes referred to herein as the related Mortgage
Loans.
"Loan Group III": The Loan Group consisting of the Group III
Mortgage Loans. With respect to the Group III Senior Certificates, Loan Group
III is sometimes referred to herein as the related Loan Group and the Mortgage
Loans in such Loan Group are sometimes referred to herein as the related
Mortgage Loans.
"Loan Group IV": The Loan Group consisting of the Group IV
Mortgage Loans. With respect to the Group IV Senior Certificates, Loan Group IV
is sometimes referred to herein as the related Loan Group and the Mortgage Loans
in such Loan Group are sometimes referred to herein as the related Mortgage
Loans.
"Loan-to-Value Ratio": As of any date of determination, the
fraction, expressed as a percentage, the numerator of which is the principal
balance of the related Mortgage Loan at such date and the denominator of which
is the Value of the related Mortgaged Property.
"Loss Mitigation Procedures": The customary policies and
procedures employed by the Master Servicer or the Special Servicer, as
applicable, relating to the realization on delinquent Mortgage Loans.
"Master Servicer": National City Mortgage Co. or any successor
master servicer appointed as herein provided, in its capacity as Master Servicer
hereunder.
"Master Servicer Event of Default": One or more of the events
described in Section 7.01.
"Master Servicer Remittance Date": With respect to any
Distribution Date, 12:00 p.m. New York time on the 24th calendar day of the
month in which such Distribution Date occurs (or the immediately preceding
Business Day, if such 24th day is not a Business Day).
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"MERS": Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS(R) System": The system of recording transfers of
Mortgages electronically maintained by MERS.
"MIN": The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R) System.
"MOM Loan": Any Mortgage Loans registered with MERS on the
MERS(R) System where MERS is designated as the mortgagee of such Mortgage Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and interest on such Mortgage Loan which
is payable by the related Mortgagor from time to time under the related Mortgage
Note, determined: (a) after giving effect to (i) any Deficient Valuation and/or
Debt Service Reduction with respect to such Mortgage Loan and (ii) any reduction
in the amount of interest collectible from the related Mortgagor pursuant to the
Relief Act or any state law providing for similar relief; (b) without giving
effect to any extension granted or agreed to by the Master Servicer pursuant to
Section 3.07; and (c) on the assumption that all other amounts, if any, due
under such Mortgage Loan are paid when due.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on, or first priority security interest in, a Mortgaged
Property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned
to the Trustee pursuant to Section 2.01 or Section 2.03(d) of this Agreement, as
from time to time held as a part of the Trust Fund, the Mortgage Loans so held
being identified in the Mortgage Loan Schedule.
"Mortgage Loan Component": Any of the Group I Mortgage Loan
Components, Group II Mortgage Loan Components or Group III Mortgage Loan
Components.
"Mortgage Loan Purchase Agreement": The agreement between the
Depositor and the Seller regarding the transfer of the Mortgage Loans by the
Seller to or at the direction of the Depositor, substantially in the form of
Exhibit D annexed hereto.
"Mortgage Loan Schedule": As of any date, the list of Mortgage
Loans included in the Trust Fund on such date, attached hereto as Schedule 1.
The Mortgage Loan Schedule shall set forth the following information with
respect to each Mortgage Loan:
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(i) the Master Servicer's Mortgage Loan identifying
number;
(ii) [reserved];
(iii) the state and zip code;
(iv) a code indicating whether the Mortgaged Property is
owner-occupied;
(v) the type of Residential Dwelling constituting the
Mortgaged Property;
(vi) the original months to maturity;
(vii) the original date of the mortgage;
(viii) the Loan-to-Value Ratio at origination;
(ix) the Mortgage Rate;
(x) the date on which the first Monthly Payment was due
on the Mortgage Loan;
(xi) the stated maturity date;
(xii) the amount of the Monthly Payment as of the Cut-off
Date;
(xiii) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal
Balance;
(xiv) the original principal amount of the Mortgage Loan;
(xv) the Scheduled Principal Balance of the Mortgage Loan
as of the close of business on the Cut-off Date;
(xvi) a code indicating the purpose of the Mortgage Loan
(i.e., purchase financing, Rate/Term Refinancing,
Cash-Out Refinancing);
(xvii) the Value of the Mortgaged Property;
(xviii) the actual unpaid principal balance of the Mortgage
Loan as of the Cut-off Date;
(xx) the Class PO Percentage;
(xxi) the Loan Group;
(xxii) a code indicating the documentation program and a
code indicating the occupancy status; and
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(xxiii) a code indicating if the Mortgage Loan is subject to
a Primary Mortgage Insurance Policy and the rate at
which the premium payable in connection with any
lender- paid Primary Mortgage Insurance Policy is
calculated, if applicable.
The Mortgage Loan Schedule shall set forth the following
information with respect to the Mortgage Loans in the aggregate as of the
Cut-off Date: (1) the number of Mortgage Loans; (2) the current principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Rate of the
Mortgage Loans; (4) the weighted average maturity of the Mortgage Loans; (5) the
Scheduled Principal Balance of the Mortgage Loans as of the close of business on
the Cut-off Date (not taking into account any Principal Prepayments received on
the Cut-off Date); and (6) the amount of the Monthly Payment as of the Cut-off
Date. The Mortgage Loan Schedule shall be amended from time to time by the
Depositor in accordance with the provisions of this Agreement. With respect to
any Qualified Substitute Mortgage Loan, Cut-off Date shall refer to the related
Cut-off Date for such Mortgage Loan, determined in accordance with the
definition of Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence
of the indebtedness of a Mortgagor under a Mortgage Loan; PROVIDED, HOWEVER,
that with respect to a Mortgage Loan on a Mortgaged Property located in the
State of Texas, the Mortgage Note may read "Renewal and Extension."
"Mortgage Pool": The pool of Mortgage Loans consisting of Loan
Group I, Loan Group II, Loan Group III and Loan Group IV, identified on Schedule
1 from time to time, and any REO Properties acquired in respect thereof.
"Mortgage Rate": The annual rate at which interest accrues on
such Mortgage Loan from time to time in accordance with the provisions of the
related Mortgage Note, without regard to any reduction thereof as a result of a
Debt Service Reduction or operation of the Relief Act or any state law providing
for similar relief. With respect to each Mortgage Loan that becomes an REO
Property, as of any date of determination, the annual rate determined in
accordance with the immediately preceding sentence as of the date such Mortgage
Loan became an REO Property.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, including any REO Property, consisting of an Estate in Real
Property improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property) as of any date of determination, a per annum rate of
interest equal to the then applicable Mortgage Rate for such Mortgage Loan minus
the Servicing Fee Rate.
"New Lease": Any lease of REO Property entered into on behalf
of REMIC I, including any lease renewed or extended on behalf of REMIC I, if
REMIC I has the right to renegotiate the terms of such lease.
"Non-Class PO Percentage": With respect to each Class PO
Mortgage Loan, 100% less the applicable Class PO Percentage.
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"Nonrecoverable P&I Advance": Any P&I Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Master Servicer, will not or, in the
case of a proposed P&I Advance, would not be ultimately recoverable from related
late payments, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan
or REO Property as provided herein.
"Non-United States Person": Any Person other than a United
States Person.
"Notional Amount": The Notional Amount of the Class XS-1
Certificates as of any date of determination is equal to the product of (i) the
aggregate Stated Principal Balance of the Group I Mortgage Loans that have
Expense Adjusted Net Mortgage Rates equal to or greater than 6.75% per annum and
(ii) a fraction, the numerator of which is (x) the excess of (A) the weighted
average of the Expense Adjusted Net Mortgage Rates of the Group I Mortgage Loans
that have Expense Adjusted Net Mortgage Rates equal to or greater than 6.75% per
annum over (B) 6.75% per annum, and the denominator of which is (y) 6.75% per
annum. The Notional Amount of the Class XS-2 Certificates as of any date of
determination is equal to the product of (i) the aggregate Stated Principal
Balance of the Group II Mortgage Loans that have Expense Adjusted Net Mortgage
Rates equal to or greater than 6.75% per annum and (ii) a fraction, the
numerator of which is (x) the excess of (A) the weighted average of the Expense
Adjusted Net Mortgage Rates of the Group II Mortgage Loans that have Expense
Adjusted Net Mortgage Rates equal to or greater than 6.75% per annum over (B)
6.75% per annum, and the denominator of which is (y) 6.75% per annum. The
Notional Amount of the Class XS-3 Certificates as of any date of determination
is equal to the product of (i) the aggregate Stated Principal Balance of the
Group III Mortgage Loans that have Expense Adjusted Net Mortgage Rates equal to
or greater than 5.75% per annum and (ii) a fraction, the numerator of which is
(x) the excess of (A) the weighted average of the Expense Adjusted Net Mortgage
Rates of the Group III Mortgage Loans that have Expense Adjusted Net Mortgage
Rates equal to or greater than 5.75% per annum over (B) 5.75% per annum, and the
denominator of which is (y) 5.75% per annum. The Notional Amount of the Class
XS-4 Certificates as of any date of determination is equal to the product of (i)
the aggregate Stated Principal Balance of the Group IV Mortgage Loans that have
Expense Adjusted Net Mortgage Rates equal to or greater than 6.75% per annum and
(ii) a fraction, the numerator of which is (x) the excess of (A) the weighted
average of the Expense Adjusted Net Mortgage Rates of the Group IV Mortgage
Loans that have Expense Adjusted Net Mortgage Rates equal to or greater than
6.75% per annum over (B) 6.75% per annum, and the denominator of which is (y)
6.75% per annum. For federal income tax purposes, the Class XS-1 Certificates,
Class XS-2 Certificates, Class XS-3 Certificates and Class XS-4 Certificates
will not have Notional Amounts, but will be entitled to 100% of amounts
distributed on REMIC II Regular Interest II-LTXS1, REMIC II Regular Interest
II-LTXS2, REMIC II Regular Interest II-LTXS3 and REMIC II Regular Interest
II-LTXS4, respectively.
"Officers' Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), and by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Seller or the Depositor, as
applicable; with respect to the Master Servicer, any officer who is authorized
to act for the Master Servicer in matters relating to this Agreement, and whose
action is binding upon the Master Servicer, initially including those
individuals whose names appear on the list of authorized officers delivered at
the closing.
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"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor or the Master
Servicer, acceptable to the Trustee, except that any opinion of counsel relating
to (a) the qualification of any Trust REMIC as a REMIC or (b) compliance with
the REMIC Provisions must be an opinion of Independent counsel.
"Original Group I Mortgage Loan": Any Mortgage Loan included
in Loan Group I as of the Closing Date.
"Original Group II Mortgage Loan": Any Mortgage Loan included
in Loan Group II as of the Closing Date.
"Original Group III Mortgage Loan": Any Mortgage Loan included
in Loan Group III as of the Closing Date.
"Original Group IV Mortgage Loan": Any Mortgage Loan included
in Loan Group IV as of the Closing Date.
"Overcollateralized Amount": As to any Distribution Date, an
amount equal to the sum of the Undercollateralized Amounts for the unrelated
Classes of Class A Certificates.
"Overcollateralizated Subgroup": As to any Distribution Date
on which there is one or more Undercollateralizated Subgroups, any Subgroup for
which there is no Undercollateralized Amount.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial, as owner or as pledgee.
"Pass-Through Rate":
With respect to the Class IA-1 Certificates and any
Distribution Date, 5.50% per annum.
With respect to the Class IA-2 Certificates and any
Distribution Date, 6.50% per annum.
With respect to the Class IA-3 Certificates and any
Distribution Date, 6.75% per annum.
With respect to the Class IIA-1 Certificates and any
Distribution Date, 5.50% per annum.
With respect to the Class IIA-2 Certificates and any
Distribution Date, 6.00% per annum.
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With respect to the Class IIA-3 Certificates and any
Distribution Date, 6.75% per annum.
With respect to the Class IIIA-1 Certificates and any
Distribution Date, 5.00% per annum.
With respect to the Class IIIA-2 Certificates and any
Distribution Date, 5.75% per annum.
With respect to the Class IVA-1 Certificates and any
Distribution Date, 6.75% per annum.
With respect to the Class XS-1 Certificates and any
Distribution Date, 6.75% per annum. For federal income tax purposes,
the Class XS-1 Certificates will not have a Pass- Through Rate, but
will be entitled to 100% of amounts distributed on REMIC II Regular
Interest II-LTXS1.
With respect to the Class XS-2 Certificates and any
Distribution Date, 6.75% per annum. For federal income tax purposes,
the Class XS-2 Certificates will not have a Pass- Through Rate, but
will be entitled to 100% of amounts distributed on REMIC II Regular
Interest II-LTXS2.
With respect to the Class XS-3 Certificates and any
Distribution Date, 5.75% per annum. For federal income tax purposes,
the Class XS-3 Certificates will not have a Pass- Through Rate, but
will be entitled to 100% of amounts distributed on REMIC II Regular
Interest II-LTXS3.
With respect to the Class XS-4 Certificates and any
Distribution Date, 6.75% per annum. For federal income tax purposes,
the Class XS-4 Certificates will not have a Pass- Through Rate, but
will be entitled to 100% of amounts distributed on REMIC II Regular
Interest II-LTXS4.
With respect to any Class of the Subordinate Certificates and
any Distribution Date, a rate per annum equal to the weighted average,
weighted in proportion to the results of subtracting from the aggregate
Stated Principal Balance of each Subgroup the aggregate Certificate
Principal Balance of the related Class A Certificates, Class PO
Certificates and related Class R Certificates, of 5.50% per annum (with
respect to Subgroup IA-1), 6.50% per annum (with respect to Subgroup
IA-2), 6.75% (with respect to Subgroup IA-3), 5.50% per annum (with
respect to Subgroup IIA-1), 6.00% per annum (with respect to Subgroup
IIA-2), 6.75% (with respect to Subgroup IIA-3), 5.00% (with respect to
Subgroup IIIA-1), 5.75% per annum (with respect to Subgroup IIIA-2) and
6.75% per annum (with respect to Loan Group IV). For federal income tax
purposes, the equivalent of the foregoing shall be expressed as the
weighted average of the REMIC II Remittance Rates on each REMIC II
Regular Interest ending with the designation "A", weighted on the basis
of the Uncertificated Balance of each such REMIC II Regular Interest.
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The Class PO Certificates shall have a Pass-Through Rate of
0.00% per annum and shall not be entitled to any distributions of
interest.
"Percentage Interest": With respect to any Certificate of any
Class, the portion of the respective Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the initial Certificate
Principal Balance or Notional Amount represented by such Certificate, and the
denominator of which is the initial aggregate Certificate Principal Balance or
Notional Amount of all of the Certificates of such Class. The Book-Entry
Certificates are issuable only in Percentage Interests corresponding to initial
Certificate Principal Balances of $100,000 and integral multiples of $1.00 in
excess thereof. The Private Certificates are issuable only in Percentage
Interests corresponding to the initial Certificate Principal Balances or
Notional Amounts of $100,000 and integral multiples of $1,000 in excess thereof;
PROVIDED, HOWEVER, that a single Certificate of each such Class of Certificates
may be issued having a Percentage Interest corresponding to the remainder of the
aggregate initial Certificate Principal Balance or Notional Amount of such Class
or to an otherwise authorized denomination for such Class plus such remainder.
The Residual Certificates are issuable only in Percentage Interests of 20% and
multiples thereof.
"Permitted Investments": Any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
regardless of whether issued by the Depositor, the Master Servicer, the Trustee
or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall
in no event have an original maturity of more than 365 days or a
remaining maturity of more than 30 days) denominated in United States
dollars and issued by, any Depository Institution;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each
Rating Agency in its highest long-term unsecured rating category at the
time of such investment or contractual commitment providing for such
investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by each Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
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(vi) units of money market funds, including money market funds
managed or advised by the Trustee or an Affiliate thereof, that have
been rated "Aaa" by Xxxxx'x and "AAA" by Fitch (or "AAA" by S&P, if not
rated by Fitch); and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to each Rating Agency as a
permitted investment of funds backing securities having ratings
equivalent to its highest initial rating of the Senior Certificates;
PROVIDED, HOWEVER, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
"Permitted Transferee": Any Transferee of a Residual
Certificate other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"P&I Advance": As to any Mortgage Loan or REO Property, any
advance made by the Master Servicer or Special Servicer in respect of any
Distribution Date pursuant to Section 4.03.
"Plan": Any employee benefit plan or certain other retirement
plans and arrangements, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
"Prepayment Assumption": A prepayment rate for the Mortgage
Loans of 16% constant rate of prepayment. The Prepayment Assumption is used
solely for determining the accrual of original issue discount on the
Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a Principal Prepayment in
full during the portion of the related Prepayment Period occurring between the
first day of the calendar month in which such Distribution Date occurs and the
Determination Date of the calendar month in which such Distribution Date occurs,
an amount equal to interest (to the extent received) at the applicable Net
Mortgage Rate on the amount of such Principal Prepayment for the number of days
commencing on the first day of the calendar month in which such Distribution
Date occurs and ending on the last date through which interest is collected from
the related Mortgagor.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, for each Mortgage Loan that was the subject of a Principal
Prepayment in full or in part during the portion of the related Prepayment
Period occurring between the first day of the related Prepayment Period
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and the last day of the calendar month preceding the month in which such
Distribution Date occurs, an amount equal to one month's interest on the
Mortgage Loan less any payments in respect of interest for such month made by
the Mortgagor. The obligations of the Master Servicer in respect of any
Prepayment Interest Shortfall are set forth in Section 3.24.
"Prepayment Period": With respect to any Distribution Date,
the period commencing on the day after the Determination Date in the month
preceding the month in which such Distribution Date falls (or, in the case of
the first Distribution Date, commencing June 1, 2004) and ending on the
Determination Date of the calendar month in which such Distribution Date falls.
"Primary Mortgage Insurance Policy": Each primary policy of
mortgage guaranty insurance in effect as represented in the Mortgage Loan
Purchase Agreement and as so indicated on the Mortgage Loan Schedule, or any
replacement policy therefor obtained by the Master Servicer or any Sub-Servicer
pursuant to Section 3.13. Any Mortgage Loan which has a Primary Mortgage
Insurance Policy is set forth on Schedule 2 attached hereto.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the full
amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Private Certificates": As defined in Section 5.02(b).
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as contemplated by Section 2.03 or
Section 9.01, and as confirmed by an Officers' Certificate from the Master
Servicer to the Trustee, an amount equal to the sum of: (i) 100% of the Stated
Principal Balance thereof as of the date of purchase (or such other price as
provided in Section 9.01), (ii) in the case of (x) a Mortgage Loan, accrued
interest on such Stated Principal Balance at the applicable Net Mortgage Rate in
effect from time to time from the Due Date as to which interest was last covered
by a payment by the Mortgagor or an advance by the Master Servicer, which
payment or advance had as of the date of purchase been distributed pursuant to
Section 4.01, through the end of the calendar month in which the purchase is to
be effected, and (y) an REO Property, the sum of (1) accrued interest on such
Stated Principal Balance at the applicable Net Mortgage Rate in effect from time
to time from the Due Date as to which interest was last covered by a payment by
the Mortgagor or an advance by the Master Servicer through the end of the
calendar month immediately preceding the calendar month in which such REO
Property was acquired, plus (2) REO Imputed Interest for such REO Property for
each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, minus the total of all net rental income, Insurance Proceeds,
Liquidation Proceeds and P&I Advances that as of the date of purchase had been
distributed as or to cover REO Imputed Interest pursuant to Section 4.01; (iii)
any unreimbursed Servicing Advances and P&I Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property; (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Sections 3.11(a)(ix) and Section 3.16(b); (v)
in the case of a Mortgage Loan required to be purchased pursuant to Section
2.03, expenses reasonably incurred or to be incurred by the Master Servicer or
the Trustee in respect of
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the breach or defect giving rise to the purchase obligation; and (vi) an amount
equal to any liability, penalty or expense that was actually incurred and paid
out of or on behalf of the Trust Fund in connection with the breach of any
representation or warranty related to predatory lending laws.
"Qualified Insurer": Any insurer which meets the requirements
of Xxxxxx Mae and Xxxxxxx Mac.
"Qualified Substitute Mortgage Loan": A mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
which must, on the date of such substitution, (i) have an outstanding principal
balance, after application of all scheduled payments of principal and interest
due during or prior to the month of substitution, not in excess of the Scheduled
Principal Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs, (ii) have a Mortgage Rate
not less than (and not more than one percentage point in excess of) the Mortgage
Rate of the Deleted Mortgage Loan, (iii) have a remaining term to maturity not
greater than (and not more than one year less than) that of the Deleted Mortgage
Loan, (iv) have the same Due Date as the Due Date on the Deleted Mortgage Loan,
(v) have a Loan-to- Value Ratio as of the date of substitution equal to or lower
than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (vi)
be covered under a Primary Mortgage Insurance Policy if such Qualified
Substitute Mortgage Loan has a Loan-to-Value Ratio in excess of 80% and the
Deleted Mortgage Loan was covered by a Primary Mortgage Insurance Policy and
(vii) conform to each representation and warranty set forth in Section 6 of the
Mortgage Loan Purchase Agreement applicable to the Deleted Mortgage Loan. In the
event that one or more mortgage loans are substituted for one or more Deleted
Mortgage Loans, the amounts described in clause (i) hereof shall be determined
on the basis of aggregate principal balances, the Mortgage Rates described in
clause (ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the terms described in clause (iii) shall be determined on the basis of
weighted average remaining terms to maturity, the Loan-to-Value Ratios described
in clause (v) hereof shall be satisfied as to each such mortgage loan; provided
that no Mortgage Loan have a maturity date after the "latest possible maturity
date" identified in the Preliminary Statement and, except to the extent
otherwise provided in this sentence, the representations and warranties
described in clause (vii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be.
"Rate/Term Refinancing": A Refinanced Mortgage Loan, the
proceeds of which are not more than $1,000 in excess of the existing first
mortgage loan and any subordinate mortgage loan on the related Mortgaged
Property and related closing costs, and were used exclusively (except for such
$1,000) to satisfy the then existing first mortgage loan and any subordinate
mortgage loan of the Mortgagor on the related Mortgaged Property and to pay
related closing costs.
"Rating Agency": Xxxxx'x and Fitch or their successors. If
such agencies or their successors are no longer in existence, the "Rating
Agencies" shall be such nationally recognized statistical rating agencies, or
other comparable Persons, designated by the Depositor, notice of which
designation shall be given to the Trustee and Master Servicer. References herein
to "the Rating Agency" shall be deemed to refer to both Rating Agencies, as the
context may require.
"Realized Loss": With respect to each Mortgage Loan as to
which a Final Recovery Determination has been made, an amount (not less than
zero) equal to (i) the unpaid principal
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balance of such Mortgage Loan as of the commencement of the calendar month in
which the Final Recovery Determination was made, plus (ii) accrued interest from
the Due Date as to which interest was last paid by the Mortgagor through the end
of the calendar month in which such Final Recovery Determination was made,
calculated in the case of each calendar month during such period (A) at an
annual rate equal to the annual rate at which interest was then accruing on such
Mortgage Loan and (B) on a principal amount equal to the Stated Principal
Balance of such Mortgage Loan as of the close of business on the Distribution
Date during such calendar month, plus (iii) any amounts previously withdrawn
from the Collection Account in respect of such Mortgage Loan pursuant to Section
3.11(a)(ix) and Section 3.16(b), minus (iv) the proceeds, if any, received in
respect of such Mortgage Loan prior to the date such Final Recovery
Determination was made, net of amounts that are payable therefrom to the Master
Servicer with respect to such Mortgage Loan pursuant to Section 3.11(a)(iii)(A)
and (B).
With respect to any REO Property as to which a Final Recovery
Determination has been made an amount (not less than zero) equal to (i) the
unpaid principal balance of the related Mortgage Loan as of the date of
acquisition of such REO Property on behalf of REMIC I, plus (ii) accrued
interest from the Due Date as to which interest was last paid by the Mortgagor
in respect of the related Mortgage Loan through the calendar month in which such
Final Recovery Determination was made, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as of
the close of business on the Distribution Date during such calendar month, plus
(iii) any amounts previously withdrawn from the Collection Account in respect of
the related Mortgage Loan pursuant to Section 3.11(a)(ix) and Section 3.16(b),
minus (iv) the aggregate of all P&I Advances and Servicing Advances made by the
Master Servicer or the Special Servicer in respect of such REO Property or the
related Mortgage Loan and any unpaid Servicing Fees for which the Master
Servicer has been or, in connection with such Final Recovery Determination, will
be reimbursed pursuant to Section 3.11(a)(iii)(A) or (B) or Section 3.23 out of
rental income, Insurance Proceeds and Liquidation Proceeds received in respect
of such REO Property, minus (v) the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds received in respect of such REO Property that
has been, or in connection with such Final Recovery Determination, will be
transferred to the Distribution Account pursuant to Section 3.23.
With respect to each Mortgage Loan which has become the
subject of a Deficient Valuation, the difference between the principal balance
of the Mortgage Loan outstanding immediately prior to such Deficient Valuation
and the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction, the portion, if any, of the reduction in
each affected Monthly Payment attributable to a reduction in the Mortgage Rate
imposed by a court of competent jurisdiction. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
To the extent the Trust Fund receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced
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to the extent such recoveries are applied to reduce the Certificate Principal
Balance of any Class of Certificates on any Distribution Date.
"Record Date": With respect to each Distribution Date and
Certificate, the last Business Day of the month immediately preceding the month
in which such Distribution Date occurs.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged Property.
"Regular Certificate": Any Senior Certificate or Subordinate
Certificate.
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the Code.
"Relief Act": The Servicemembers Civil Relief Act.
"Relief Act Interest Shortfall": With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended calendar month as
a result of the application of the Relief Act or any state law providing for
similar relief.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made, consisting of: (i) such
Mortgage Loans as from time to time are subject to this Agreement, together with
the Mortgage Files relating thereto, and together with all collections thereon
and proceeds thereof; (ii) any REO Property, together with all collections
thereon and proceeds thereof; (iii) the Trustee's rights under all insurance
policies required to be maintained pursuant to this Agreement and any proceeds
thereof; (iv) the Depositor's rights under the Mortgage Loan Purchase Agreement
(including any security interests created thereby); and (v) the Collection
Account, the Distribution Account and any REO Account and such assets that are
deposited therein from time to time and any investments thereof, together with
any and all income, proceeds and payments with respect thereto. Notwithstanding
the foregoing, however, REMIC I specifically excludes all payments and other
collections of principal and interest due on the Mortgage Loans on or before the
Cut-off Date.
"REMIC I Regular Interests": The REMIC I Regular Interests, as
defined in the Preliminary Statement.
"REMIC I Remittance Rate": With respect to REMIC I Regular
Interest I-LT-1, REMIC I Regular Interest I-LT-2, REMIC I Regular Interest
I-LT-3, REMIC I Regular Interest I-LT- 4, REMIC I Regular Interest I-LT-5, REMIC
I Regular Interest I-LT-6, REMIC I Regular Interest I-LT-7, REMIC I Regular
Interest I-LT-8, REMIC I Regular Interest I-LT-9, REMIC I Regular
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Xxxxxxxx X-XX-X, REMIC I Regular Interest I-LT-PO1, REMIC I Regular Xxxxxxxx
X-XX-XX0, REMIC I Regular Interest I-LT-PO3 and REMIC I Regular Xxxxxxxx
X-XX-XX0, the rate set forth in the Preliminary Statement. With respect to REMIC
I Regular Interest I-LT-XS1, REMIC I Regular Interest I-LT-XS2, REMIC I Regular
Interest I-LT-XS3 and REMIC I Regular Interest I-LT-XS4, the Weighted Average
Stripped Interest Rate for the Group I Mortgage Loans, Group II Mortgage Loans,
Group III Mortgage Loans and the Group IV Mortgage Loans, respectively, weighted
on the basis of the aggregate Stated Principal Balances of the Group I Mortgage
Loans, Group II Mortgage Loans, Group III Mortgage Loans and the Group IV
Mortgage Loans, respectively.
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in trust to the Trustee for the benefit
of the Certificateholders pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made.
"REMIC II Regular Interests": The REMIC II Regular Interests,
as defined in the Preliminary Statement.
"REMIC II Remittance Rate": With respect to REMIC II Regular
Interest II-LT-1A, REMIC II Regular Interest II-LT-1B, REMIC II Regular Interest
II-LT-2A, REMIC II Regular Interest II-LT-2B, REMIC II Regular Interest
II-LT-3A, REMIC II Regular Interest II-LT-3B, REMIC II Regular Interest
II-LT-4A, REMIC II Regular Interest II-LT-4B, REMIC II Regular Interest
II-LT-5A, REMIC II Regular Interest II-LT-5B, REMIC II Regular Interest
II-LT-6A, REMIC II Regular Interest II-LT-6B, REMIC II Regular Interest
II-LT-7A, REMIC II Regular Interest II-LT-7B, REMIC II Regular Interest
II-LT-8A, REMIC II Regular Interest II-LT-8B, REMIC II Regular Interest
II-LT-9A, REMIC II Regular Interest II-LT-9B, REMIC I Regular Interest II-LT-R,
REMIC II Regular Interest II-LT-PO1, REMIC II Regular Interest II-LT-PO2, REMIC
II Regular Interest II-LT-PO3 and REMIC II Regular Interest II-LT-PO4, the rate
set forth in the Preliminary Statement. REMIC II Regular Interest II-LT-XS1,
REMIC II Regular Interest II-LT-XS2, REMIC II Regular Interest II-LT-XS3 and
REMIC II Regular Interest II-LT-XS4 will not have REMIC II Remittance Rate, but
will be entitled to 100% of amounts received on REMIC I Regular Interest
I-LT-XS1, REMIC I Regular Interest I-LT-XS2, REMIC I Regular Interest I-LT-XS3
and REMIC I Regular Interest I-LT-XS4, respectively.
"REMIC II Subordinated Balance Ratio": The ratio among the
Uncertificated Balances of each REMIC II Regular Interest ending with the
designation "A,", equal to the ratio among, with respect to each such REMIC II
Regular Interest, the excess of (x) the aggregate Stated Principal Balance of
each Mortgage Loan that is not a Class PO Mortgage Loan in the related Loan
Group over (y) the current Certificate Principal Balance of Class A Certificates
in the related Loan Group.
"REMIC III": The segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of the Certificateholders pursuant to Section 2.07, with respect to
which a separate REMIC election is to be made.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of the Code, and related
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provisions, and proposed, temporary and final regulations and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
"Remittance Report": A report in form and substance acceptable
to the Trustee prepared by the Master Servicer pursuant to Section 4.03 with
such additions, deletions and modifications as agreed to by the Trustee and the
Master Servicer.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code as being
included in the term "rents from real property."
"REO Account": The account or accounts maintained by the
Master Servicer in respect of an REO Property pursuant to Section 3.23.
"REO Disposition": The sale or other disposition of an REO
Property on behalf of REMIC I.
"REO Imputed Interest": As to any REO Property, for any
calendar month during which such REO Property was at any time part of REMIC I,
one month's interest at the applicable Net Mortgage Rate on the Stated Principal
Balance of such REO Property (or, in the case of the first such calendar month,
of the related Mortgage Loan if appropriate) as of the close of business on the
Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO
Property, for any calendar month, the excess, if any, of (a) the aggregate of
all amounts received in respect of such REO Property during such calendar month,
whether in the form of rental income, sale proceeds (including, without
limitation, that portion of the Termination Price paid in connection with a
purchase of all of the Mortgage Loans and REO Properties pursuant to Section
9.01 that is allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to Section 3.23(c) in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable or
reimbursable to the Master Servicer pursuant to Section 3.23(d) for unpaid
Servicing Fees in respect of the related Mortgage Loan and unreimbursed
Servicing Advances and P&I Advances in respect of such REO Property or the
related Mortgage Loan, over (b) the REO Imputed Interest in respect of such REO
Property for such calendar month.
"REO Property": A Mortgaged Property acquired by the Master
Servicer, any Sub- Servicer or the Special Servicer on behalf of the Trust Fund
through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23.
"Request for Release": A release signed by a Servicing
Officer, or in a mutually agreeable electronic format which will, in lieu of a
signature on its face, originate from a Servicing Officer, in the form of
Exhibit E attached hereto.
"Residential Dwelling": Any one of the following: (i) an
attached or detached one- family dwelling, (ii) a detached two- to four-family
dwelling, (iii) a one-family dwelling unit in a Xxxxxx Xxx eligible condominium
project, or (iv) a detached one-family dwelling in a planned xxxx
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xxxxxxxxxxx, xxxx of which is a co-operative, mobile or manufactured home (as
defined in 00 Xxxxxx Xxxxxx Code, Section 5402(6)).
"Residual Certificate": Any one of the Class R Certificates.
"Residual Interest": The sole class of "residual interests" in
a REMIC within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee,
the President, any vice president, any assistant vice president, the Secretary,
any assistant secretary, the Treasurer, any assistant treasurer, any trust
officer or assistant trust officer, the Controller and any assistant controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and, with respect to a
particular matter, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject and in each case who
shall have direct responsibility for the administration of this Agreement.
"S&P": Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
"Scheduled Principal Balance": With respect to any Mortgage
Loan: (a) as of the Cut- off Date, the outstanding principal balance of such
Mortgage Loan as of such date, net of the principal portion of all unpaid
Monthly Payments, if any, due on or before such date; (b) as of any Due Date
subsequent to the Cut-off Date up to and including the Due Date in the calendar
month in which a Liquidation Event occurs with respect to such Mortgage Loan,
the Scheduled Principal Balance of such Mortgage Loan as of the Cut-off Date,
minus the sum of (i) the principal portion of each Monthly Payment due on or
before such Due Date but subsequent to the Cut-off Date, whether or not
received, (ii) all Principal Prepayments received before such Due Date but after
the Cut-off Date, (iii) the principal portion of all Liquidation Proceeds and
Insurance Proceeds received before such Due Date but after the Cut-off Date, net
of any portion thereof that represents principal due (without regard to any
acceleration of payments under the related Mortgage and Mortgage Note) on a Due
Date occurring on or before the date on which such proceeds were received and
(iv) any Realized Loss incurred with respect thereto as a result of a Deficient
Valuation occurring before such Due Date, but only to the extent such Realized
Loss represents a reduction in the portion of principal of such Mortgage Loan
not yet due (without regard to any acceleration of payments under the related
Mortgage and Mortgage Note) as of the date of such Deficient Valuation; and (c)
as of any Due Date subsequent to the occurrence of a Liquidation Event with
respect to such Mortgage Loan, zero. With respect to any REO Property: (a) as of
any Due Date subsequent to the date of its acquisition on behalf of the Trust
Fund up to and including the Due Date in the calendar month in which a
Liquidation Event occurs with respect to such REO Property, an amount (not less
than zero) equal to the Scheduled Principal Balance of the related Mortgage Loan
as of the Due Date in the calendar month in which such REO Property was
acquired, minus the aggregate amount of REO Principal Amortization, if any, in
respect of such REO Property for all previously ended calendar months; and (b)
as of any Due Date subsequent to the occurrence of a Liquidation Event with
respect to such REO Property, zero.
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"Seller": National City Mortgage Co., or its successor in
interest, in its capacity as seller under the Mortgage Loan Purchase Agreement.
"Senior Certificates": The Group I Senior Certificates, the
Group II Senior Certificates, the Group III Senior Certificates and the Group IV
Senior Certificates.
"Senior Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the aggregate of the Interest Distribution
Amounts for such Distribution Date for each Class of Class A Certificates and
Class XS Certificates.
"Senior Percentage": The Subgroup IA-1 Senior Percentage, the
Subgroup IA-2 Senior Percentage, the Subgroup IA-3 Senior Percentage, the
Subgroup IIA-1 Senior Percentage, the Subgroup IIA-2 Senior Percentage, the
Subgroup IIA-3 Senior Percentage, the Subgroup IIIA-1 Senior Percentage, the
Subgroup IIIA-2 Senior Percentage or the Group IV Senior Percentage, as the
context requires.
"Senior Prepayment Percentage": The Subgroup IA-1 Senior
Prepayment Percentage, the Subgroup IA-2 Senior Prepayment Percentage, the
Subgroup IA-3 Senior Prepayment Percentage, the Subgroup IIA-1 Senior Prepayment
Percentage, the Subgroup IIA-2 Senior Prepayment Percentage, the Subgroup IIA-3
Senior Prepayment Percentage, the Subgroup IIIA-1 Senior Prepayment Percentage,
the Subgroup IIIA-2 Senior Prepayment Percentage or the Group IV Senior
Prepayment Percentage, as the context requires.
"Senior Principal Distribution Amount": For any Distribution
Date and the Class A Certificates of any Subgroup, an amount equal to the lesser
of (i) the Subgroup IA-1 Available Distribution Amount, the Subgroup IA-2
Available Distribution Amount, the Subgroup IA-3 Available Distribution Amount,
the Subgroup IIA-1 Available Distribution Amount, the Subgroup IIA-2 Available
Distribution Amount, the Subgroup IIA-3 Available Distribution Amount, the
Subgroup IIIA-1 Available Distribution Amount, the Subgroup IIIA-2 Available
Distribution Amount or the Group IV Available Distribution Amount, as
applicable, remaining after distribution of the Senior Interest Distribution
Amount and the Class PO Principal Distribution Amount and (ii) the sum of:
(a) the product of (x) the then-applicable related Senior
Percentage and (y) the sum of the following:
(i) the related Non-Class PO Percentage of the
aggregate of the principal portions of all Monthly Payments
due during the related Due Period in respect of the related
Mortgage Loans or Mortgage Loan Components, as applicable,
whether or not received;
(ii) the related Non-Class PO Percentage of the
principal portion of all Insurance Proceeds, Liquidation
Proceeds (other than amounts described in clause (c) below)
and Subsequent Recoveries received in respect of the related
Mortgage Loans or Mortgage Loan Components, as applicable,
during the related Prepayment Period (other than any related
Mortgage Loan or Mortgage Loan Component, as
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applicable, that was purchased, sold or replaced pursuant to
or as contemplated by Section 2.03 or Section 9.01 during the
related Prepayment Period), net of any portion thereof that
represents a recovery of principal for which an advance was
made by the Master Servicer pursuant to Section 4.03 in
respect of a preceding Distribution Date;
(iii) the related Non-Class PO Percentage of the
Stated Principal Balance (calculated immediately prior to such
Distribution Date) of each related Mortgage Loan or Mortgage
Loan Component, as applicable, that was purchased, sold or
replaced pursuant to or as contemplated by Section 2.03 or
Section 9.01 during the related Prepayment Period;
(iv) the related Non-Class PO Percentage of all REO
Principal Amortization collected in respect of any REO
Property in respect of a related Mortgage Loan or Mortgage
Loan Component, as applicable, during the related Prepayment
Period; and
(v) in connection with the substitution of one or
more Qualified Substitute Mortgage Loans for one or more
Deleted Mortgage Loans in the related Loan Group pursuant to
Section 2.03 during the related Prepayment Period, the excess,
if any, of (A) the aggregate of the related Non-Class PO
Percentage of the Stated Principal Balances (calculated as of
the respective dates of substitution) of such Deleted Mortgage
Loans, net of the aggregate of the related Non-Class PO
Percentage of the principal portions of the Monthly Payments
due during the related Prepayment Period (to the extent
received from the related Mortgagor or advanced by the Master
Servicer and distributed pursuant to Section 4.01 on the
Distribution Date in the related Prepayment Period) in respect
of each such Deleted Mortgage Loan that was replaced prior to
the Distribution Date in the related Prepayment Period, over
(B) the aggregate of the related Non-Class PO Percentage of
the Stated Principal Balances (calculated as of the respective
dates of substitution) of such Qualified Substitute Mortgage
Loans;
(b) the product of (x) the then-applicable related Senior
Prepayment Percentage and (y) the related Non-Class PO Percentage of all
Principal Prepayments received in respect of the related Mortgage Loans or
Mortgage Loan Components, as applicable, during the related Prepayment Period;
(c) with respect to any related Mortgage Loan or Mortgage Loan
Component, as applicable, which was the subject of a Final Recovery
Determination in the related Prepayment Period, the least of (a) the
then-applicable related Senior Prepayment Percentage of the Non-Class PO
Percentage multiplied by the net Liquidation Proceeds and Insurance Proceeds
allocable to principal in respect of the related Mortgage Loans or Mortgage Loan
Components, as applicable, (b) the then-applicable related Senior Percentage of
the Non-Class PO Percentage multiplied by the Scheduled Principal Balance of the
related Mortgage Loan or Mortgage Loan Component, as applicable, at the time of
such Final Recovery Determination; and (c) the principal portion of all
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amounts collected in connection with such a Final Recovery Determination to the
extent not distributed to the related Class PO Certificates;
(d) in the case of any Distribution Date subsequent to the
initial Distribution Date, an amount equal to the excess, if any, of the related
Senior Principal Distribution Amount for the immediately preceding Distribution
Date, over the aggregate distributions of principal made in respect of the
related Class of Class A Certificates on such immediately preceding Distribution
Date pursuant to Section 4.01 to the extent that any such amounts are not
attributable to Realized Losses which were allocated to the Subordinate
Certificates pursuant to Section 4.04; and
(e) any Class A Principal Adjustment Amount (allocated among
the Class A Certificates of each Certificate Group on a PRO RATA basis based on
the aggregate Certificate Principal Balance of the Class A Certificates of each
Certificate Group), so long as the Subordination Test has not been met with
respect to such Distribution Date.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.09.
"Servicing Advances": The reasonable "out-of-pocket" costs and
expenses incurred by the Master Servicer or the Special Servicer in connection
with a default, delinquency or other unanticipated event by the Master Servicer
or the Special Servicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) the preservation, restoration and
protection of a Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, in respect of a particular Mortgage Loan,
including any expenses incurred in relation to any such proceedings that result
from the Mortgage Loan being registered on the MERS(R) System, (iii) the
management (including reasonable fees in connection therewith) and liquidation
of any REO Property, and (iv) the performance of its obligations under Section
3.01, Section 3.09, Section 3.13, Section 3.14, Section 3.16 and Section 3.23.
The Master Servicer and the Special Servicer shall not be required to make any
Servicing Advance in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Master Servicer or the Special Servicer, as
applicable, would not be ultimately recoverable from related Insurance Proceeds
or Liquidation Proceeds on such Mortgage Loan or REO Property as provided
herein.
"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, an amount equal to one month's interest (or in the event of
any payment of interest which accompanies a Principal Prepayment in full made by
the Mortgagor during such calendar month, interest for the number of days
covered by such payment of interest) at the applicable Servicing Fee Rate on the
same principal amount on which interest on such Mortgage Loan accrues for such
calendar month. A portion of such Servicing Fee may be retained by any
Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": 0.25% per annum
"Servicing Officer": Any employee of the Master Servicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans or the Specially Serviced Mortgage Loans, as applicable, whose
name appear on a list of Servicing Officers furnished by the Master
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Servicer or the Special Servicer, as applicable, to the Trustee and the
Depositor on the Closing Date, as such list may from time to time be amended.
"Single Certificate": With respect to any Class of
Certificates (other than the Residual Certificates), a hypothetical Certificate
of such Class evidencing a Percentage Interest for such Class corresponding to
an initial Certificate Principal Balance or Notional Amount of $1,000. With
respect to the Residual Certificates, a hypothetical Certificate of such Class
evidencing a 20% Percentage Interest in such Class.
"Special Hazard Amount": Initially, an amount equal to
$3,136,020. As of each anniversary of the Cut-off Date, the Special Hazard
Amount shall equal the lesser of (i) the Special Hazard Amount on the
immediately preceding anniversary of the Cut-off Date less the sum of all
amounts allocated to the Subordinate Certificates in respect of Special Hazard
Losses on the Mortgage Loans during such year and (ii) the Adjustment Amount for
such anniversary. The "Adjustment Amount" with respect to each anniversary of
the Cut-off Date will be equal to the greatest of (i) 1.00% multiplied by the
aggregate outstanding principal balance of the Mortgage Loans on the
Distribution Date immediately preceding such anniversary, (ii) the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of the Mortgage Loans secured by Mortgaged Properties located in the
California postal zip code area in which the highest percentage of Mortgage
Loans based on outstanding principal balance are located and (iii) two times the
outstanding principal balance of the Mortgage Loan having the largest
outstanding principal balance, in each case as of such anniversary of the
Cut-off Date. After the Certificate Principal Balances of the Subordinate
Certificates are reduced to zero, the Special Hazard Amount will be zero.
"Special Hazard Loss": Any Realized Loss or portion thereof
not in excess of the lesser of the cost of repair or replacement of a Mortgaged
Property suffered by such Mortgaged Property by reason of damage caused by
certain hazards (including earthquakes, mudflows, and, to a limited extent,
floods) not insured against under the hazard insurance policies or fire or flood
insurance policies required to be maintained in respect of such Mortgaged
Property pursuant to Section 3.14 (with respect to the Master Servicer) or
pursuant to the Special Servicing Agreement (with respect to the Special
Servicer), or by reason of the application of any co-insurance provision.
Special Hazard Losses shall not include any Extraordinary Loss or any of the
following:
(i) wear and tear, deterioration, rust or corrosion, mold, wet
or dry rot; inherent vice or latent defect; animals, birds, vermin,
insects;
(ii) smog, smoke, vapor, liquid or dust discharge from
agricultural or industrial operations; pollution; contamination;
(iii) settling, subsidence, cracking, shrinkage, bulging or
expansion of pavements, foundations, walls, floors, roofs or ceilings;
and
(iv) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and then
only for the ensuing loss.
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"Special Servicer": Xxxxxx Loan Servicing LP, a Delaware
limited partnership, in its capacity as Special Servicer of the Specially
Serviced Mortgage Loans.
"Special Servicing Agreement": The Special Servicing
Agreement, dated the Closing Date, among the Master Servicer, the Trustee and
the Special Servicer regarding the servicing of the Specially Serviced Mortgage
Loans by the Special Servicer, substantially in the form attached hereto as
Exhibit K.
"Specially Serviced Mortgage Loan": As defined in the Special
Servicing Agreement.
"Startup Day": With respect to each REMIC, the day designated
as such pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan:
(a) as of any date of determination up to but not including the Distribution
Date on which the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the Scheduled Principal Balance of such
Mortgage Loan as of the Cut-off Date, as shown in the Mortgage Loan Schedule,
minus the sum of (i) the principal portion of each Monthly Payment due on a Due
Date subsequent to the Cut-off Date, to the extent received from the Mortgagor
or advanced by the Master Servicer and distributed pursuant to Section 4.01 on
or before such date of determination, (ii) all Principal Prepayments received
after the Cut-off Date, to the extent distributed pursuant to Section 4.01 on or
before such date of determination, (iii) all Liquidation Proceeds and Insurance
Proceeds applied by the Master Servicer as recoveries of principal in accordance
with the provisions of Section 3.16, to the extent distributed pursuant to
Section 4.01 on or before such date of determination, and (iv) any Realized Loss
incurred with respect thereto as a result of a Deficient Valuation made during
or prior to the Prepayment Period for the most recent Distribution Date
coinciding with or preceding such date of determination; and (b) as of any date
of determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (a) as of any date
of determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of the Trust Fund, minus the sum of (I) if such REO
Property was acquired before the Distribution Date in any calendar month, the
principal portion of the Monthly Payment due on the Due Date in the calendar
month of acquisition, to the extent advanced by the Master Servicer and
distributed pursuant to Section 4.01 on or before such date of determination, to
the extent distributed pursuant to Section 4.01 on or before such date of
determination, and (II) the aggregate amount of REO Principal Amortization in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, zero.
"Stripped Interest Rate": With respect to any Group I Mortgage
Loan, the excess, if any, of the Expense Adjusted Mortgage Rate minus 6.75% per
annum. With respect to any Group II Mortgage Loan or related REO Property, the
excess, if any, of the Expense Adjusted Mortgage
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Rate minus 6.75% per annum. With respect to any Group III Mortgage Loan, the
excess, if any, of the Expense Adjusted Mortgage Rate minus 5.75% per annum.
With respect to any Group IV Mortgage Loan, the excess, if any, of the Expense
Adjusted Mortgage Rate minus 6.75% per annum.
"Subgroup": Any of Subgroup IA-1, Subgroup IA-2, Subgroup
IA-3, Subgroup IIA-1, Subgroup IIA-2, Subgroup IIA-3, Subgroup IIIA-1, Subgroup
IIIA-2 or Loan Group IV.
"Subgroup IA-1": The Group I Mortgage Loan subgroup that
includes all Group I Mortgage Loans with an Expense Adjusted Mortgage Rate less
than or equal to 5.50% and Mortgage Loan Components representing a portion of
all Group I Mortgage Loans, based on the Applicable Fractions of such Mortgage
Loans, with an Expense Adjusted Mortgage Rate greater than 5.50% per annum and
less than 6.50% per annum.
"Subgroup IA-1 Available Distribution Amount": With respect to
any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group I Mortgage Loans and the Group I Mortgage Loan Components
in Subgroup IA-1 as of the close of business on the related Determination Date
including any Subsequent Recoveries with respect to the Group I Mortgage Loans
and the Group I Mortgage Loan Components in Subgroup IA-1, (b) the aggregate of
any amounts received in respect of an REO Property relating to a Group I
Mortgage Loan and a Group I Mortgage Loan Component in Subgroup IA-1withdrawn
from any REO Account and deposited in the Distribution Account for such
Distribution Date pursuant to Section 3.23, (c) the aggregate of any amounts
deposited in the Distribution Account by the Master Servicer in respect of
Prepayment Interest Shortfalls on the Group I Mortgage Loans and the Group I
Mortgage Loan Components in Subgroup IA-1 for such Distribution Date pursuant to
Section 3.24 and (d) the aggregate of any P&I Advances made by the Master
Servicer or Special Servicer for such Distribution Date with respect to the
Group I Mortgage Loans and the Group I Mortgage Loan Components in Subgroup IA-1
pursuant to Section 4.03, reduced (to not less than zero) by (2) the portion of
the amount described in clause (1)(a) above that represents (i) Monthly Payments
on the Group I Mortgage Loans and the Group I Mortgage Loan Components in
Subgroup IA-1 received from a Mortgagor on or prior to the Determination Date
but due during any Due Period subsequent to the related Due Period, (ii)
Principal Prepayments on the Group I Mortgage Loans and the Group I Mortgage
Loan Components in Subgroup IA-1 received after the related Prepayment Period
(together with any interest payments received with such Principal Prepayments to
the extent they represent the payment of interest accrued on the Group I
Mortgage Loans and the Group I Mortgage Loan Components in Subgroup IA-1 during
a period subsequent to the related Prepayment Period), (iii) Liquidation
Proceeds, Insurance Proceeds and Subsequent Recoveries received in respect of
the Group I Mortgage Loans and the Group I Mortgage Loan Components in Subgroup
IA-1 after the related Prepayment Period, (iv) amounts reimbursable or payable
with respect to the Group I Mortgage Loans and the Group I Mortgage Loan
Components in Subgroup IA-1 to the Depositor, the Master Servicer, the Trustee,
the Seller or any Sub-Servicer pursuant to Section 3.11(a) or Section 3.12 or
otherwise payable in respect of Extraordinary Trust Fund Expenses, (v) the
Trustee Fee attributable to the Group I Mortgage Loans and the Group I Mortgage
Loan Components in Subgroup IA-1 payable from the Distribution Account pursuant
to Section 8.05 and (vi) amounts deposited in the Collection Account or the
Distribution Account in error with respect to the Group I Mortgage Loans and the
Group I Mortgage Loan Components in Subgroup IA-1. Notwithstanding the
foregoing, the Subgroup IA-1
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Available Distribution Amount for any Distribution Date shall be increased (in
the case of an Undercollateralized Subgroup with respect to Subgroup IA-1) or
decreased (in the case of an Overcollateralized Subgroup with respect to
Subgroup IA-1) by any applicable Diverted Interest Amount or Class A Principal
Adjustment Amount, in each case for such Distribution Date. The Subgroup IA-1
Available Distribution Amount shall not include any Prepayment Interest Excess
related to the Group I Mortgage Loans and the Group I Mortgage Loan Components
in Subgroup IA- 1.
"Subgroup IA-1 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IA-1
Certificates and (b) the aggregate amount of Realized Losses on the Group I
Mortgage Loan Components or the Group I Mortgage Loans in Subgroup IA-1 on such
Distribution Date.
"Subgroup IA-1 Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of the
Scheduled Principal Balances of the Group I Mortgage Loans and the Group I
Mortgage Loan Components in Subgroup IA-1 plus (b) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties related to the Group I Mortgage Loans and the Group I Mortgage Loan
Components in Subgroup IA-1 over (ii) the aggregate Certificate Principal
Balance of the Class IA-1 Certificates immediately after payment of the related
Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
"Subgroup IA-1 Senior Percentage": With respect to any
Distribution Date and the Class IA-1 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class IA-1
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class IA-1 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group I Mortgage Loans
and the Group I Mortgage Loan Components in Subgroup IA-1, plus (ii) the
aggregate of the Non-Class PO Percentages of the Scheduled Principal Balances of
the REO Properties related to the Group I Mortgage Loans and the Group I
Mortgage Loan Components in Subgroup IA-1, in each case before reduction for any
Realized Losses on such Distribution Date.
"Subgroup IA-1 Senior Prepayment Percentage": With respect to
any Distribution Date within the range indicated below and the Class IA-1
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IA-1 Senior Percentage plus 70% of the Subgroup IA-1
Subordinate Percentage
July 2010 through June 2011 Subgroup IA-1 Senior Percentage plus 60% of the Subgroup IA-1
Subordinate Percentage
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July 2011 through June 2012 Subgroup IA-1 Senior Percentage plus 40% of the Subgroup IA-1
Subordinate Percentage
July 2012 through June 2013 Subgroup IA-1 Senior Percentage plus 20% of the Subgroup IA-1
Subordinate Percentage
July 2013 and thereafter Subgroup IA-1 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IA-1 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IA-1 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IA-1 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IA-1 Senior Prepayment
Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IA-1
Senior Prepayment Percentage shall be 100%.
"Subgroup IA-1 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IA-1 Senior Percentage.
"Subgroup IA-1 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IA-1 Senior Prepayment Percentage for such Distribution Date.
"Subgroup IA-2": The Group I Mortgage Loan subgroup that
includes a portion of all Group I Mortgage Loans, based on the Applicable
Fractions of such Mortgage Loans, with an Expense Adjusted Mortgage Rate greater
than 5.50% per annum and less than 6.50% per annum and Mortgage Loan Components
representing a portion of all Group I Mortgage Loans, based on the Applicable
Fractions of such Mortgage Loans, with an Expense Adjusted Mortgage Rate greater
than or equal to 6.50% per annum and less than 6.75% per annum.
"Subgroup IA-2 Available Distribution Amount": With respect to
any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group I Mortgage Loan Components in Subgroup IA-2 as of the close
of business on the related Determination Date including any Subsequent
Recoveries with respect to the Group I Mortgage Loan Components in Subgroup
IA-2, (b) the aggregate of any amounts received in respect of an REO Property
relating to a Group I Mortgage Loan Component in Subgroup IA-2withdrawn from any
REO Account and deposited in the Distribution Account for such Distribution Date
pursuant to Section 3.23, (c) the aggregate of any amounts deposited in the
Distribution Account by the Master Servicer in respect of Prepayment
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Interest Shortfalls on the Group I Mortgage Loan Components in Subgroup IA-2 for
such Distribution Date pursuant to Section 3.24 and (d) the aggregate of any P&I
Advances made by the Master Servicer or Special Servicer for such Distribution
Date with respect to the Group I Mortgage Loan Components in Subgroup IA-2
pursuant to Section 4.03, reduced (to not less than zero) by (2) the portion of
the amount described in clause (1)(a) above that represents (i) Monthly Payments
on the Group I Mortgage Loan Components in Subgroup IA-2 received from a
Mortgagor on or prior to the Determination Date but due during any Due Period
subsequent to the related Due Period, (ii) Principal Prepayments on the Group I
Mortgage Loan Components in Subgroup IA-2 received after the related Prepayment
Period (together with any interest payments received with such Principal
Prepayments to the extent they represent the payment of interest accrued on the
Group I Mortgage Loan Components in Subgroup IA-2 during a period subsequent to
the related Prepayment Period), (iii) Liquidation Proceeds, Insurance Proceeds
and Subsequent Recoveries received in respect of the Group I Mortgage Loan
Components in Subgroup IA-2 after the related Prepayment Period, (iv) amounts
reimbursable or payable with respect to the Group I Mortgage Loan Components in
Subgroup IA-2 to the Depositor, the Master Servicer, the Trustee, the Seller or
any Sub-Servicer pursuant to Section 3.11(a) or Section 3.12 or otherwise
payable in respect of Extraordinary Trust Fund Expenses, (v) the Trustee Fee
attributable to the Group I Mortgage Loan Components in Subgroup IA-2 payable
from the Distribution Account pursuant to Section 8.05 and (vi) amounts
deposited in the Collection Account or the Distribution Account in error with
respect to the Group I Mortgage Loan Components in Subgroup IA-2.
Notwithstanding the foregoing, the Subgroup IA-2 Available Distribution Amount
for any Distribution Date shall be increased (in the case of an
Undercollateralized Subgroup with respect to Subgroup IA-2) or decreased (in the
case of an Overcollateralized Subgroup with respect to Subgroup IA-2) by any
applicable Diverted Interest Amount or Class A Principal Adjustment Amount, in
each case for such Distribution Date. The Subgroup IA-2 Available Distribution
Amount shall not include any Prepayment Interest Excess related to the Group I
Mortgage Loan Components in Subgroup IA-2.
"Subgroup IA-2 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IA-2
Certificates and (b) the aggregate amount of Realized Losses on the Group I
Mortgage Loan Components in Subgroup IA-2 on such Distribution Date.
"Subgroup IA-2 Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of the
Scheduled Principal Balances of the Group I Mortgage Loan Components in Subgroup
IA-2 plus (b) the aggregate of the Non-Class PO Percentages of the Scheduled
Principal Balances of the REO Properties related to Group I Mortgage Loan
Components in Subgroup IA-2 over (ii) the aggregate Certificate Principal
Balance of the Class IA-2 Certificates immediately after payment of the related
Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
"Subgroup IA-2 Senior Percentage": With respect to any
Distribution Date and the Class IA-2 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class IA-2
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders
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of the Class IA-2 Certificates on such date pursuant to clause (d) of the
definition of "Senior Principal Distribution Amount," and the denominator of
which is the sum of (i) the aggregate of the Non-Class PO Percentages of the
Scheduled Principal Balances of the Group I Mortgage Loan Components in Subgroup
IA-2, plus (ii) the aggregate of the Non-Class PO Percentages of the Scheduled
Principal Balances of the REO Properties related to the Group I Mortgage Loan
Components in Subgroup IA-2, in each case before reduction for any Realized
Losses on such Distribution Date.
"Subgroup IA-2 Senior Prepayment Percentage": With respect to
any Distribution Date within the range indicated below and the Class IA-2
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IA-2 Senior Percentage plus 70% of the Subgroup IA-2
Subordinate Percentage
July 2010 through June 2011 Subgroup IA-2 Senior Percentage plus 60% of the Subgroup IA-2
Subordinate Percentage
July 2011 through June 2012 Subgroup IA-2 Senior Percentage plus 40% of the Subgroup IA-2
Subordinate Percentage
July 2012 through June 2013 Subgroup IA-2 Senior Percentage plus 20% of the Subgroup IA-2
Subordinate Percentage
July 2013 and thereafter Subgroup IA-2 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IA-2 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IA-2 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IA-2 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IA-2 Senior Prepayment
Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IA-2
Senior Prepayment Percentage shall be 100%.
"Subgroup IA-2 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IA-2 Senior Percentage.
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"Subgroup IA-2 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IA-2 Senior Prepayment Percentage for such Distribution Date.
"Subgroup IA-3": The Group I Mortgage Loan subgroup that
includes a portion of all Group I Mortgage Loans, based on the Applicable
Fractions of such Mortgage Loans, with an Expense Adjusted Mortgage Rate greater
than or equal to 6.50% per annum and less than 6.75% per annum and all Group I
Mortgage Loans with an Expense Adjusted Mortgage Rate greater than or equal to
6.75% per annum.
"Subgroup IA-3 Available Distribution Amount": With respect to
any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group I Mortgage Loans and the Group I Mortgage Loan Components
in Subgroup IA-3 as of the close of business on the related Determination Date
including any Subsequent Recoveries with respect to the Group I Mortgage Loans
and the Group I Mortgage Loan Components in Subgroup IA-3, (b) the aggregate of
any amounts received in respect of an REO Property relating to a Group I
Mortgage Loan and a Group I Mortgage Loan Component in Subgroup IA-3withdrawn
from any REO Account and deposited in the Distribution Account for such
Distribution Date pursuant to Section 3.23, (c) the aggregate of any amounts
deposited in the Distribution Account by the Master Servicer in respect of
Prepayment Interest Shortfalls on the Group I Mortgage Loans and the Group I
Mortgage Loan Components in Subgroup IA-3 for such Distribution Date pursuant to
Section 3.24 and (d) the aggregate of any P&I Advances made by the Master
Servicer or Special Servicer for such Distribution Date with respect to the
Group I Mortgage Loans and the Group I Mortgage Loan Components in Subgroup IA-3
pursuant to Section 4.03, reduced (to not less than zero) by (2) the portion of
the amount described in clause (1)(a) above that represents (i) Monthly Payments
on the Group I Mortgage Loans and the Group I Mortgage Loan Components in
Subgroup IA-3 received from a Mortgagor on or prior to the Determination Date
but due during any Due Period subsequent to the related Due Period, (ii)
Principal Prepayments on the Group I Mortgage Loans and the Group I Mortgage
Loan Components in Subgroup IA-3 received after the related Prepayment Period
(together with any interest payments received with such Principal Prepayments to
the extent they represent the payment of interest accrued on the Group I
Mortgage Loans and the Group I Mortgage Loan Components in Subgroup IA-3 during
a period subsequent to the related Prepayment Period), (iii) Liquidation
Proceeds, Insurance Proceeds and Subsequent Recoveries received in respect of
the Group I Mortgage Loans and the Group I Mortgage Loan Components in Subgroup
IA-3 after the related Prepayment Period, (iv) amounts reimbursable or payable
with respect to the Group I Mortgage Loans and the Group I Mortgage Loan
Components in Subgroup IA-3 to the Depositor, the Master Servicer, the Trustee,
the Seller or any Sub-Servicer pursuant to Section 3.11(a) or Section 3.12 or
otherwise payable in respect of Extraordinary Trust Fund Expenses, (v) the
Trustee Fee attributable to the Group I Mortgage Loans and the Group I Mortgage
Loan Components in Subgroup IA-3 payable from the Distribution Account pursuant
to Section 8.05 and (vi) amounts deposited in the Collection Account or the
Distribution Account in error with respect to the Group I Mortgage Loans and the
Group I Mortgage Loan Components in Subgroup IA-3. Notwithstanding the
foregoing, the Subgroup IA-3 Available Distribution Amount for any Distribution
Date shall be increased (in the case of an Undercollateralized Subgroup with
respect to Subgroup IA-3) or decreased (in the case of an Overcollateralized
Subgroup with respect to Subgroup IA-3) by any applicable Diverted Interest
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Amount or Class A Principal Adjustment Amount, in each case for such
Distribution Date. The Subgroup IA-3 Available Distribution Amount shall not
include any Prepayment Interest Excess related to the Group I Mortgage Loans and
the Group I Mortgage Loan Components in Subgroup IA- 3.
"Subgroup IA-3 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IA-3
Certificates and (b) the aggregate amount of Realized Losses on the Group I
Mortgage Loan Components or the Group I Mortgage Loans in Subgroup IA-3 on such
Distribution Date.
"Subgroup IA-3 Overcollateralized Amount": With respect to any
Distribution Date on which an Overcollateralized Amount exists, the excess, if
any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of the
Scheduled Principal Balances of the Group I Mortgage Loans and the Group I
Mortgage Loan Components in Subgroup IA-3 plus (b) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties related to the Group I Mortgage Loans and the Group I Mortgage Loan
Components in Subgroup IA-3 over (ii) the aggregate Certificate Principal
Balance of the Class IA-3 Certificates immediately after payment of the related
Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
"Subgroup IA-3 Senior Percentage": With respect to any
Distribution Date and the Class IA-3 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class IA-3
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class IA-3 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group I Mortgage Loans
and the Group I Mortgage Loan Components in Subgroup IA-3, plus (ii) the
aggregate of the Non-Class PO Percentages of the Scheduled Principal Balances of
the REO Properties related to the Group I Mortgage Loans and the Group I
Mortgage Loan Components in Subgroup IA-3, in each case before reduction for any
Realized Losses on such Distribution Date.
"Subgroup IA-3 Senior Prepayment Percentage": With respect to
any Distribution Date within the range indicated below and the Class IA-3
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IA-3 Senior Percentage plus 70% of the Subgroup IA-3
Subordinate Percentage
July 2010 through June 2011 Subgroup IA-3 Senior Percentage plus 60% of the Subgroup IA-3
Subordinate Percentage
July 2011 through June 2012 Subgroup IA-3 Senior Percentage plus 40% of the Subgroup IA-3
Subordinate Percentage
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July 2012 through June 2013 Subgroup IA-3 Senior Percentage plus 20% of the Subgroup IA-3
Subordinate Percentage
July 2013 and thereafter Subgroup IA-3 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IA-3 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IA-3 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IA-3 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IA-3 Senior Prepayment
Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IA-3
Senior Prepayment Percentage shall be 100%.
"Subgroup IA-3 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IA-3 Senior Percentage.
"Subgroup IA-3 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IA-3 Senior Prepayment Percentage for such Distribution Date.
"Subgroup IIA-1": The Group II Mortgage Loan subgroup that
includes all Group II Mortgage Loans with an Expense Adjusted Mortgage Rate less
than or equal to 5.50% and Mortgage Loan Components representing a portion of
all Group II Mortgage Loans, based on the Applicable Fractions of such Mortgage
Loans, with an Expense Adjusted Mortgage Rate greater than 5.50% per annum and
less than 6.50% per annum.
"Subgroup IIA-1 Available Distribution Amount": With respect
to any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group II Mortgage Loans and the Group II Mortgage Loan Components
in Subgroup IIA-1 as of the close of business on the related Determination Date
including any Subsequent Recoveries with respect to the Group II Mortgage Loans
and the Group II Mortgage Loan Components in Subgroup IIA-1, (b) the aggregate
of any amounts received in respect of an REO Property relating to a Group II
Mortgage Loan and a Group II Mortgage Loan Component in Subgroup IIA-1withdrawn
from any REO Account and deposited in the Distribution Account for such
Distribution Date pursuant to Section 3.23, (c) the aggregate of any amounts
deposited in the Distribution Account by the Master Servicer in respect of
Prepayment Interest Shortfalls on the Group II Mortgage Loans and the Group II
Mortgage Loan Components in Subgroup IIA-1 for such Distribution Date pursuant
to Section 3.24 and (d) the
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aggregate of any P&I Advances made by the Master Servicer or Special Servicer
for such Distribution Date with respect to the Group II Mortgage Loans and the
Group II Mortgage Loan Components in Subgroup IIA-1 pursuant to Section 4.03,
reduced (to not less than zero) by (2) the portion of the amount described in
clause (1)(a) above that represents (i) Monthly Payments on the Group II
Mortgage Loans and the Group II Mortgage Loan Components in Subgroup IIA-1
received from a Mortgagor on or prior to the Determination Date but due during
any Due Period subsequent to the related Due Period, (ii) Principal Prepayments
on the Group II Mortgage Loans and the Group II Mortgage Loan Components in
Subgroup IIA-1 received after the related Prepayment Period (together with any
interest payments received with such Principal Prepayments to the extent they
represent the payment of interest accrued on the Group II Mortgage Loans and the
Group II Mortgage Loan Components in Subgroup IIA-1 during a period subsequent
to the related Prepayment Period), (iii) Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received in respect of the Group II Mortgage
Loans and the Group II Mortgage Loan Components in Subgroup IIA-1 after the
related Prepayment Period, (iv) amounts reimbursable or payable with respect to
the Group II Mortgage Loans and the Group II Mortgage Loan Components in
Subgroup IIA-1 to the Depositor, the Master Servicer, the Trustee, the Seller or
any Sub-Servicer pursuant to Section 3.11(a) or Section 3.12 or otherwise
payable in respect of Extraordinary Trust Fund Expenses, (v) the Trustee Fee
attributable to the Group II Mortgage Loans and the Group II Mortgage Loan
Components in Subgroup IIA-1 payable from the Distribution Account pursuant to
Section 8.05 and (vi) amounts deposited in the Collection Account or the
Distribution Account in error with respect to the Group II Mortgage Loans and
the Group II Mortgage Loan Components in Subgroup IIA-1. Notwithstanding the
foregoing, the Subgroup IIA-1 Available Distribution Amount for any Distribution
Date shall be increased (in the case of an Undercollateralized Subgroup with
respect to Subgroup IIA-1) or decreased (in the case of an Overcollateralized
Subgroup with respect to Subgroup IIA-1) by any applicable Diverted Interest
Amount or Class A Principal Adjustment Amount, in each case for such
Distribution Date. The Subgroup IIA-1 Available Distribution Amount shall not
include any Prepayment Interest Excess related to the Group II Mortgage Loans
and the Group II Mortgage Loan Components in Subgroup IIA-1.
"Subgroup IIA-1 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IIA-1
Certificates and (b) the aggregate amount of Realized Losses on the Group II
Mortgage Loan Components or the Group II Mortgage Loans in Subgroup IIA-1 on
such Distribution Date.
"Subgroup IIA-1 Overcollateralized Amount": With respect to
any Distribution Date on which an Overcollateralized Amount exists, the excess,
if any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of
the Scheduled Principal Balances of the Group II Mortgage Loans and the Group II
Mortgage Loan Components in Subgroup IIA-1 plus (b) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties related to the Group II Mortgage Loans and the Group II Mortgage Loan
Components in Subgroup IIA-1 over (ii) the aggregate Certificate Principal
Balance of the Class IIA-1 Certificates immediately after payment of the related
Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
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"Subgroup IIA-1 Senior Percentage": With respect to any
Distribution Date and the Class IIA-1 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class IIA-1
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class IIA-1 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group II Mortgage Loans
and the Group II Mortgage Loan Components in Subgroup IIA-1, plus (ii) the
aggregate of the Non-Class PO Percentages of the Scheduled Principal Balances of
the REO Properties related to the Group II Mortgage Loans and the Group II
Mortgage Loan Components in Subgroup IIA-1, in each case before reduction for
any Realized Losses on such Distribution Date.
"Subgroup IIA-1 Senior Prepayment Percentage": With respect to
any Distribution Date within the range indicated below and the Class IIA-1
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IIA-1 Senior Percentage plus 70% of the Subgroup IIA-1
Subordinate Percentage
July 2010 through June 2011 Subgroup IIA-1 Senior Percentage plus 60% of the Subgroup IIA-1
Subordinate Percentage
July 2011 through June 2012 Subgroup IIA-1 Senior Percentage plus 40% of the Subgroup IIA-1
Subordinate Percentage
July 2012 through June 2013 Subgroup IIA-1 Senior Percentage plus 20% of the Subgroup IIA-1
Subordinate Percentage
July 2013 and thereafter Subgroup IIA-1 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IIA-1 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IIA-1 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IIA-1 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IIA-1 Senior
Prepayment Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IIA-1
Senior Prepayment Percentage shall be 100%.
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"Subgroup IIA-1 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IIA-1 Senior Percentage.
"Subgroup IIA-1 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IIA-1 Senior Prepayment Percentage for such Distribution Date.
"Subgroup IIA-2": The Group II Mortgage Loan subgroup that
includes a portion of all Group II Mortgage Loans, based on the Applicable
Fractions of such Mortgage Loans, with an Expense Adjusted Mortgage Rate greater
than 5.50% per annum and less than 6.50% per annum and Mortgage Loan Components
representing a portion of all Group II Mortgage Loans, based on the Applicable
Fractions of such Mortgage Loans, with an Expense Adjusted Mortgage Rate greater
than or equal to 6.50% per annum and less than 6.75% per annum.
"Subgroup IIA-2 Available Distribution Amount": With respect
to any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group II Mortgage Loan Components in Subgroup IIA-2 as of the
close of business on the related Determination Date including any Subsequent
Recoveries with respect to the Group II Mortgage Loan Components in Subgroup
IIA-2, (b) the aggregate of any amounts received in respect of an REO Property
relating to a Group II Mortgage Loan Component in Subgroup IIA-2withdrawn from
any REO Account and deposited in the Distribution Account for such Distribution
Date pursuant to Section 3.23, (c) the aggregate of any amounts deposited in the
Distribution Account by the Master Servicer in respect of Prepayment Interest
Shortfalls on the Group II Mortgage Loan Components in Subgroup IIA-2 for such
Distribution Date pursuant to Section 3.24 and (d) the aggregate of any P&I
Advances made by the Master Servicer or Special Servicer for such Distribution
Date with respect to the Group II Mortgage Loan Components in Subgroup IIA-2
pursuant to Section 4.03, reduced (to not less than zero) by (2) the portion of
the amount described in clause (1)(a) above that represents (i) Monthly Payments
on the Group II Mortgage Loan Components in Subgroup IIA-2 received from a
Mortgagor on or prior to the Determination Date but due during any Due Period
subsequent to the related Due Period, (ii) Principal Prepayments on the Group II
Mortgage Loan Components in Subgroup IIA-2 received after the related Prepayment
Period (together with any interest payments received with such Principal
Prepayments to the extent they represent the payment of interest accrued on the
Group II Mortgage Loan Components in Subgroup IIA-2 during a period subsequent
to the related Prepayment Period), (iii) Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received in respect of the Group II Mortgage
Loan Components in Subgroup IIA-2 after the related Prepayment Period, (iv)
amounts reimbursable or payable with respect to the Group II Mortgage Loan
Components in Subgroup IIA-2 to the Depositor, the Master Servicer, the Trustee,
the Seller or any Sub-Servicer pursuant to Section 3.11(a) or Section 3.12 or
otherwise payable in respect of Extraordinary Trust Fund Expenses, (v) the
Trustee Fee attributable to the Group II Mortgage Loan Components in Subgroup
IIA-2 payable from the Distribution Account pursuant to Section 8.05 and (vi)
amounts deposited in the Collection Account or the Distribution Account in error
with respect to the Group II Mortgage Loan Components in Subgroup IIA-2.
Notwithstanding the foregoing, the Subgroup IIA- 2 Available Distribution Amount
for any Distribution Date shall be increased (in the case of an
Undercollateralized Subgroup with respect to Subgroup IIA-2) or decreased (in
the case of an
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Overcollateralized Subgroup with respect to Subgroup IIA-2) by any applicable
Diverted Interest Amount or Class A Principal Adjustment Amount, in each case
for such Distribution Date. The Subgroup IIA-2 Available Distribution Amount
shall not include any Prepayment Interest Excess related to the Group II
Mortgage Loan Components in Subgroup IIA-2.
"Subgroup IIA-2 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IIA-2
Certificates and (b) the aggregate amount of Realized Losses on the Group II
Mortgage Loan Components in Subgroup IIA-2 on such Distribution Date.
"Subgroup IIA-2 Overcollateralized Amount": With respect to
any Distribution Date on which an Overcollateralized Amount exists, the excess,
if any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of
the Scheduled Principal Balances of the Group II Mortgage Loan Components in
Subgroup IIA-2 plus (b) the aggregate of the Non-Class PO Percentages of the
Scheduled Principal Balances of the REO Properties related to Group II Mortgage
Loan Components in Subgroup IIA-2 over (ii) the aggregate Certificate Principal
Balance of the Class IIA-2 Certificates immediately after payment of the related
Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
"Subgroup IIA-2 Senior Percentage": With respect to any
Distribution Date and the Class IIA-2 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class IIA-2
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class IIA-2 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group II Mortgage Loan
Components in Subgroup IIA-2, plus (ii) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the REO Properties related to
the Group II Mortgage Loan Components in Subgroup IIA-2, in each case before
reduction for any Realized Losses on such Distribution Date.
"Subgroup IIA-2 Senior Prepayment Percentage": With respect to
any Distribution Date within the range indicated below and the Class IIA-2
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IIA-2 Senior Percentage plus 70% of the Subgroup IIA-2
Subordinate Percentage
July 2010 through June 2011 Subgroup IIA-2 Senior Percentage plus 60% of the Subgroup IIA-2
Subordinate Percentage
July 2011 through June 2012 Subgroup IIA-2 Senior Percentage plus 40% of the Subgroup IIA-2
Subordinate Percentage
July 2012 through June 2013 Subgroup IIA-2 Senior Percentage plus 20% of the Subgroup IIA-2
Subordinate Percentage
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July 2013 and thereafter Subgroup IIA-2 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IIA-2 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IIA-2 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IIA-2 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IIA-2 Senior
Prepayment Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IIA-2
Senior Prepayment Percentage shall be 100%.
"Subgroup IIA-2 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IIA-2 Senior Percentage.
"Subgroup IIA-2 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IIA-2 Senior Prepayment Percentage for such Distribution Date.
"Subgroup IIA-3": The Group II Mortgage Loan subgroup that
includes a portion of all Group II Mortgage Loans, based on the Applicable
Fractions of such Mortgage Loans, with an Expense Adjusted Mortgage Rate greater
than or equal to 6.50% per annum and less than 6.75% per annum and all Group II
Mortgage Loans with an Expense Adjusted Mortgage Rate greater than or equal to
6.75% per annum.
"Subgroup IIA-3 Available Distribution Amount": With respect
to any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group II Mortgage Loans and the Group II Mortgage Loan Components
in Subgroup IIA-3 as of the close of business on the related Determination Date
including any Subsequent Recoveries with respect to the Group II Mortgage Loans
and the Group II Mortgage Loan Components in Subgroup IIA-3, (b) the aggregate
of any amounts received in respect of an REO Property relating to a Group II
Mortgage Loan and a Group II Mortgage Loan Component in Subgroup IIA-3withdrawn
from any REO Account and deposited in the Distribution Account for such
Distribution Date pursuant to Section 3.23, (c) the aggregate of any amounts
deposited in the Distribution Account by the Master Servicer in respect of
Prepayment Interest Shortfalls on the Group II Mortgage Loans and the Group II
Mortgage Loan Components in Subgroup IIA-3 for such Distribution Date pursuant
to Section 3.24 and (d) the aggregate of any P&I Advances made by the Master
Servicer or Special Servicer for such Distribution Date with respect to the
Group II Mortgage Loans and the Group II Mortgage Loan
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Components in Subgroup IIA-3 pursuant to Section 4.03, reduced (to not less than
zero) by (2) the portion of the amount described in clause (1)(a) above that
represents (i) Monthly Payments on the Group II Mortgage Loans and the Group II
Mortgage Loan Components in Subgroup IIA-3 received from a Mortgagor on or prior
to the Determination Date but due during any Due Period subsequent to the
related Due Period, (ii) Principal Prepayments on the Group II Mortgage Loans
and the Group II Mortgage Loan Components in Subgroup IIA-3 received after the
related Prepayment Period (together with any interest payments received with
such Principal Prepayments to the extent they represent the payment of interest
accrued on the Group II Mortgage Loans and the Group II Mortgage Loan Components
in Subgroup IIA-3 during a period subsequent to the related Prepayment Period),
(iii) Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries
received in respect of the Group II Mortgage Loans and the Group II Mortgage
Loan Components in Subgroup IIA-3 after the related Prepayment Period, (iv)
amounts reimbursable or payable with respect to the Group II Mortgage Loans and
the Group II Mortgage Loan Components in Subgroup IIA-3 to the Depositor, the
Master Servicer, the Trustee, the Seller or any Sub-Servicer pursuant to Section
3.11(a) or Section 3.12 or otherwise payable in respect of Extraordinary Trust
Fund Expenses, (v) the Trustee Fee attributable to the Group II Mortgage Loans
and the Group II Mortgage Loan Components in Subgroup IIA-3 payable from the
Distribution Account pursuant to Section 8.05 and (vi) amounts deposited in the
Collection Account or the Distribution Account in error with respect to the
Group II Mortgage Loans and the Group II Mortgage Loan Components in Subgroup
IIA-3. Notwithstanding the foregoing, the Subgroup IIA-3 Available Distribution
Amount for any Distribution Date shall be increased (in the case of an
Undercollateralized Subgroup with respect to Subgroup IIA-3) or decreased (in
the case of an Overcollateralized Subgroup with respect to Subgroup IIA-3) by
any applicable Diverted Interest Amount or Class A Principal Adjustment Amount,
in each case for such Distribution Date. The Subgroup IIA-3 Available
Distribution Amount shall not include any Prepayment Interest Excess related to
the Group II Mortgage Loans and the Group II Mortgage Loan Components in
Subgroup IIA-3.
"Subgroup IIA-3 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IIA-3
Certificates and (b) the aggregate amount of Realized Losses on the Group II
Mortgage Loan Components or the Group II Mortgage Loans in Subgroup IIA-3 on
such Distribution Date.
"Subgroup IIA-3 Overcollateralized Amount": With respect to
any Distribution Date on which an Overcollateralized Amount exists, the excess,
if any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of
the Scheduled Principal Balances of the Group II Mortgage Loans and the Group II
Mortgage Loan Components in Subgroup IIA-3 plus (b) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties related to the Group II Mortgage Loans and the Group II Mortgage Loan
Components in Subgroup IIA-3 over (ii) the aggregate Certificate Principal
Balance of the Class IIA-3 Certificates immediately after payment of the related
Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
"Subgroup IIA-3 Senior Percentage": With respect to any
Distribution Date and the Class IIA-3 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class
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IIA-3 Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class IIA-3 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group II Mortgage Loans
and the Group II Mortgage Loan Components in Subgroup IIA-3, plus (ii) the
aggregate of the Non-Class PO Percentages of the Scheduled Principal Balances of
the REO Properties related to the Group II Mortgage Loans and the Group II
Mortgage Loan Components in Subgroup IIA-3, in each case before reduction for
any Realized Losses on such Distribution Date.
"Subgroup IIA-3 Senior Prepayment Percentage": With respect to
any Distribution Date within the range indicated below and the Class IIA-3
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IIA-3 Senior Percentage plus 70% of the Subgroup IIA-3
Subordinate Percentage
July 2010 through June 2011 Subgroup IIA-3 Senior Percentage plus 60% of the Subgroup IIA-3
Subordinate Percentage
July 2011 through June 2012 Subgroup IIA-3 Senior Percentage plus 40% of the Subgroup IIA-3
Subordinate Percentage
July 2012 through June 2013 Subgroup IIA-3 Senior Percentage plus 20% of the Subgroup IIA-3
Subordinate Percentage
July 2013 and thereafter Subgroup IIA-3 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IIA-3 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IIA-3 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IIA-3 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IIA-3 Senior
Prepayment Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IIA-3
Senior Prepayment Percentage shall be 100%.
"Subgroup IIA-3 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IIA-3 Senior Percentage.
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"Subgroup IIA-3 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IIA-3 Senior Prepayment Percentage for such Distribution Date.
"Subgroup IIIA-1": The Group III Mortgage Loan subgroup that
includes all Group III Mortgage Loans with an Expense Adjusted Mortgage Rate
less than or equal to 5.00% and Mortgage Loan Components representing a portion
of all Group III Mortgage Loans, based on the Applicable Fractions of such
Mortgage Loans, with an Expense Adjusted Mortgage Rate greater than 5.00% per
annum and less than 5.75% per annum.
"Subgroup IIIA-1 Available Distribution Amount": With respect
to any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group III Mortgage Loans and the Group III Mortgage Loan
Components in Subgroup IIIA-1 as of the close of business on the related
Determination Date including any Subsequent Recoveries with respect to the Group
III Mortgage Loans and the Group III Mortgage Loan Components in Subgroup
IIIA-1, (b) the aggregate of any amounts received in respect of an REO Property
relating to a Group III Mortgage Loan and a Group III Mortgage Loan Component in
Subgroup IIIA-1withdrawn from any REO Account and deposited in the Distribution
Account for such Distribution Date pursuant to Section 3.23, (c) the aggregate
of any amounts deposited in the Distribution Account by the Master Servicer in
respect of Prepayment Interest Shortfalls on the Group III Mortgage Loans and
the Group III Mortgage Loan Components in Subgroup IIIA-1 for such Distribution
Date pursuant to Section 3.24 and (d) the aggregate of any P&I Advances made by
the Master Servicer or Special Servicer for such Distribution Date with respect
to the Group III Mortgage Loans and the Group III Mortgage Loan Components in
Subgroup IIIA-1 pursuant to Section 4.03, reduced (to not less than zero) by (2)
the portion of the amount described in clause (1)(a) above that represents (i)
Monthly Payments on the Group III Mortgage Loans and the Group III Mortgage Loan
Components in Subgroup IIIA-1 received from a Mortgagor on or prior to the
Determination Date but due during any Due Period subsequent to the related Due
Period, (ii) Principal Prepayments on the Group III Mortgage Loans and the Group
III Mortgage Loan Components in Subgroup IIIA-1 received after the related
Prepayment Period (together with any interest payments received with such
Principal Prepayments to the extent they represent the payment of interest
accrued on the Group III Mortgage Loans and the Group III Mortgage Loan
Components in Subgroup IIIA-1 during a period subsequent to the related
Prepayment Period), (iii) Liquidation Proceeds, Insurance Proceeds and
Subsequent Recoveries received in respect of the Group III Mortgage Loans and
the Group III Mortgage Loan Components in Subgroup IIIA-1 after the related
Prepayment Period, (iv) amounts reimbursable or payable with respect to the
Group III Mortgage Loans and the Group III Mortgage Loan Components in Subgroup
IIIA-1 to the Depositor, the Master Servicer, the Trustee, the Seller or any
Sub-Servicer pursuant to Section 3.11(a) or Section 3.12 or otherwise payable in
respect of Extraordinary Trust Fund Expenses, (v) the Trustee Fee attributable
to the Group III Mortgage Loans and the Group III Mortgage Loan Components in
Subgroup IIIA-1 payable from the Distribution Account pursuant to Section 8.05
and (vi) amounts deposited in the Collection Account or the Distribution Account
in error with respect to the Group III Mortgage Loans and the Group III Mortgage
Loan Components in Subgroup IIIA-1. Notwithstanding the foregoing, the Subgroup
IIIA-1 Available Distribution Amount for any Distribution Date shall be
increased (in the case of an Undercollateralized Subgroup with respect to
Subgroup IIIA-1) or decreased (in the case of an Overcollateralized Subgroup
with
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respect to Subgroup IIIA-1) by any applicable Diverted Interest Amount or Class
A Principal Adjustment Amount, in each case for such Distribution Date. The
Subgroup IIIA-1 Available Distribution Amount shall not include any Prepayment
Interest Excess related to the Group III Mortgage Loans and the Group III
Mortgage Loan Components in Subgroup IIIA-1.
"Subgroup IIIA-1 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IIIA-1
Certificates and (b) the aggregate amount of Realized Losses on the Group III
Mortgage Loan Components or the Group III Mortgage Loans in Subgroup IIIA-1 on
such Distribution Date.
"Subgroup IIIA-1 Overcollateralized Amount": With respect to
any Distribution Date on which an Overcollateralized Amount exists, the excess,
if any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of
the Scheduled Principal Balances of the Group III Mortgage Loans and the Group
III Mortgage Loan Components in Subgroup IIIA-1 plus (b) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties related to the Group III Mortgage Loans and the Group III Mortgage
Loan Components in Subgroup IIIA-1 over (ii) the aggregate Certificate Principal
Balance of the Class IIIA-1 Certificates immediately after payment of the
related Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
"Subgroup IIIA-1 Senior Percentage": With respect to any
Distribution Date and the Class IIIA-1 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class IIIA-1
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class IIIA-1 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group III Mortgage Loans
and the Group III Mortgage Loan Components in Subgroup IIIA-1, plus (ii) the
aggregate of the Non-Class PO Percentages of the Scheduled Principal Balances of
the REO Properties related to the Group III Mortgage Loans and the Group III
Mortgage Loan Components in Subgroup IIIA-1, in each case before reduction for
any Realized Losses on such Distribution Date.
"Subgroup IIIA-1 Senior Prepayment Percentage": With respect
to any Distribution Date within the range indicated below and the Class IIIA-1
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IIIA-1 Senior Percentage plus 70% of the Subgroup IIIA-
1 Subordinate Percentage
July 2010 through June 2011 Subgroup IIIA-1 Senior Percentage plus 60% of the Subgroup IIIA-
1 Subordinate Percentage
July 2011 through June 2012 Subgroup IIIA-1 Senior Percentage plus 40% of the Subgroup IIIA-
1 Subordinate Percentage
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July 2012 through June 2013 Subgroup IIIA-1 Senior Percentage plus 20% of the Subgroup IIIA-
1 Subordinate Percentage
July 2013 and thereafter Subgroup IIIA-1 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IIIA-1 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IIIA-1 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IIIA-1 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IIIA-1 Senior
Prepayment Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IIIA-1
Senior Prepayment Percentage shall be 100%.
"Subgroup IIIA-1 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IIIA-1 Senior Percentage.
"Subgroup IIIA-1 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IIIA-1 Senior Prepayment Percentage for such Distribution Date.
"Subgroup IIIA-2": The Group III Mortgage Loan subgroup that
includes a portion of all Group III Mortgage Loans, based on the Applicable
Fractions of such Mortgage Loans, with an Expense Adjusted Mortgage Rate greater
than 5.00% per annum and less than 5.75% per annum and all Group III Mortgage
Loans with an Expense Adjusted Mortgage Rate greater than or equal to 5.75% per
annum.
"Subgroup IIIA-2 Available Distribution Amount": With respect
to any Distribution Date, an amount equal to (1) the sum of (a) the aggregate of
the amounts on deposit in the Collection Account and Distribution Account with
respect to the Group III Mortgage Loans and the Group III Mortgage Loan
Components in Subgroup IIIA-2 as of the close of business on the related
Determination Date including any Subsequent Recoveries with respect to the Group
III Mortgage Loans and the Group III Mortgage Loan Components in Subgroup
IIIA-2, (b) the aggregate of any amounts received in respect of an REO Property
relating to a Group III Mortgage Loan and a Group III Mortgage Loan Component in
Subgroup IIIA-2withdrawn from any REO Account and deposited in the Distribution
Account for such Distribution Date pursuant to Section 3.23, (c) the aggregate
of any amounts deposited in the Distribution Account by the Master Servicer in
respect of Prepayment Interest Shortfalls on the Group III Mortgage Loans and
the Group III Mortgage Loan Components in Subgroup IIIA-2 for such Distribution
Date pursuant to Section 3.24 and (d) the
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aggregate of any P&I Advances made by the Master Servicer or Special Servicer
for such Distribution Date with respect to the Group III Mortgage Loans and the
Group III Mortgage Loan Components in Subgroup IIIA-2 pursuant to Section 4.03,
reduced (to not less than zero) by (2) the portion of the amount described in
clause (1)(a) above that represents (i) Monthly Payments on the Group III
Mortgage Loans and the Group III Mortgage Loan Components in Subgroup IIIA-2
received from a Mortgagor on or prior to the Determination Date but due during
any Due Period subsequent to the related Due Period, (ii) Principal Prepayments
on the Group III Mortgage Loans and the Group III Mortgage Loan Components in
Subgroup IIIA-2 received after the related Prepayment Period (together with any
interest payments received with such Principal Prepayments to the extent they
represent the payment of interest accrued on the Group III Mortgage Loans and
the Group III Mortgage Loan Components in Subgroup IIIA-2 during a period
subsequent to the related Prepayment Period), (iii) Liquidation Proceeds,
Insurance Proceeds and Subsequent Recoveries received in respect of the Group
III Mortgage Loans and the Group III Mortgage Loan Components in Subgroup IIIA-2
after the related Prepayment Period, (iv) amounts reimbursable or payable with
respect to the Group III Mortgage Loans and the Group III Mortgage Loan
Components in Subgroup IIIA-2 to the Depositor, the Master Servicer, the
Trustee, the Seller or any Sub-Servicer pursuant to Section 3.11(a) or Section
3.12 or otherwise payable in respect of Extraordinary Trust Fund Expenses, (v)
the Trustee Fee attributable to the Group III Mortgage Loans and the Group III
Mortgage Loan Components in Subgroup IIIA-2 payable from the Distribution
Account pursuant to Section 8.05 and (vi) amounts deposited in the Collection
Account or the Distribution Account in error with respect to the Group III
Mortgage Loans and the Group III Mortgage Loan Components in Subgroup IIIA-2.
Notwithstanding the foregoing, the Subgroup IIIA-2 Available Distribution Amount
for any Distribution Date shall be increased (in the case of an
Undercollateralized Subgroup with respect to Subgroup IIIA-2) or decreased (in
the case of an Overcollateralized Subgroup with respect to Subgroup IIIA-2) by
any applicable Diverted Interest Amount or Class A Principal Adjustment Amount,
in each case for such Distribution Date. The Subgroup IIIA-2 Available
Distribution Amount shall not include any Prepayment Interest Excess related to
the Group III Mortgage Loans and the Group III Mortgage Loan Components in
Subgroup IIIA-2.
"Subgroup IIIA-2 Excess Diverted Interest Reserve Deposit": An
amount withdrawn from the Excess Diverted Interest Reserve Account equal to the
lesser of (i) the amount on deposit in the Excess Diverted Interest Reserve
Account and (ii) the sum of (a) any interest shortfalls on the Class IIIA-2
Certificates and (b) the aggregate amount of Realized Losses on the Group III
Mortgage Loan Components or the Group III Mortgage Loans in Subgroup IIIA-2 on
such Distribution Date.
"Subgroup IIIA-2 Overcollateralized Amount": With respect to
any Distribution Date on which an Overcollateralized Amount exists, the excess,
if any, of (i) the sum of (a) the aggregate of the Non-Class PO Percentages of
the Scheduled Principal Balances of the Group III Mortgage Loans and the Group
III Mortgage Loan Components in Subgroup IIIA-2 plus (b) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties related to the Group III Mortgage Loans and the Group III Mortgage
Loan Components in Subgroup IIIA-2 over (ii) the aggregate Certificate Principal
Balance of the Class IIIA-2 Certificates immediately after payment of the
related Senior Principal Distribution Amount, in each case, after scheduled and
unscheduled payments in respect of principal were received or advanced.
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"Subgroup IIIA-2 Senior Percentage": With respect to any
Distribution Date and the Class IIIA-2 Certificates, the lesser of (a) 100% and
(b) a fraction, expressed as a percentage, the numerator of which is the excess,
if any, of the aggregate Certificate Principal Balance of the Class IIIA-2
Certificates for such Distribution Date over the aggregate amount, if any,
payable to the Holders of the Class IIIA-2 Certificates on such date pursuant to
clause (d) of the definition of "Senior Principal Distribution Amount," and the
denominator of which is the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group III Mortgage Loans
and the Group III Mortgage Loan Components in Subgroup IIIA-2, plus (ii) the
aggregate of the Non-Class PO Percentages of the Scheduled Principal Balances of
the REO Properties related to the Group III Mortgage Loans and the Group III
Mortgage Loan Components in Subgroup IIIA-2, in each case before reduction for
any Realized Losses on such Distribution Date.
"Subgroup IIIA-2 Senior Prepayment Percentage": With respect
to any Distribution Date within the range indicated below and the Class IIIA-2
Certificates, the percentage as indicated below:
Distribution Date Senior Prepayment Percentage
----------------- ----------------------------
July 2004 through June 2009 100%
July 2009 through June 2010 Subgroup IIIA-2 Senior Percentage plus 70% of the Subgroup IIIA-
2 Subordinate Percentage
July 2010 through June 2011 Subgroup IIIA-2 Senior Percentage plus 60% of the Subgroup IIIA-
2 Subordinate Percentage
July 2011 through June 2012 Subgroup IIIA-2 Senior Percentage plus 40% of the Subgroup IIIA-
2 Subordinate Percentage
July 2012 through June 2013 Subgroup IIIA-2 Senior Percentage plus 20% of the Subgroup IIIA-
2 Subordinate Percentage
July 2013 and thereafter Subgroup IIIA-2 Senior Percentage
PROVIDED, HOWEVER, no reduction to the Subgroup IIIA-2 Senior Prepayment
Percentage described above shall be made as of any Distribution Date unless (i)
the outstanding principal balance of the Mortgage Loans delinquent 60 days or
more (including REO Properties and Mortgage Loans in foreclosure) averaged over
the last six months does not exceed 50% of the sum of the then current
Certificate Principal Balances of the Subordinate Certificates and (ii) Realized
Losses on the Mortgage Loans to date are less than the then applicable Trigger
Amount.
On any Distribution Date on which the conditions in either of
clauses (i) or (ii) above are not met, the Subgroup IIIA-2 Senior Prepayment
Percentage will be the greater of (x) the Subgroup IIIA-2 Senior Prepayment
Percentage for such Distribution Date or (y) the Subgroup IIIA-2 Senior
Prepayment Percentage for the immediately preceding Distribution Date.
On any Distribution Date on which the Aggregate Senior
Percentage exceeds the initial Aggregate Senior Percentage, the Subgroup IIIA-2
Senior Prepayment Percentage shall be 100%.
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"Subgroup IIIA-2 Subordinate Percentage": With respect to the
Subordinate Certificates and any Distribution Date, a percentage equal to 100%
minus the Subgroup IIIA-2 Senior Percentage.
"Subgroup IIIA-2 Subordinate Prepayment Percentage": With
respect to the Subordinate Certificates and any Distribution Date, 100% minus
the Subgroup IIIA-2 Senior Prepayment Percentage for such Distribution Date.
"Subordinate Amount": For any Distribution Date will equal the
excess of (i) the Scheduled Principal Balance of the Mortgage Loans (exclusive
of the Class PO Percentage of the Scheduled Principal Balance of the Class PO
Mortgage Loans), over (ii) the sum of the Certificate Principal Balances of the
Class A Certificates.
"Subordinate Certificate": Any Class B-1 Certificate, Class
B-2 Certificate, Class B-3 Certificate, Class B-4 Certificate, Class B-5
Certificate or Class B-6 Certificate.
"Subordinate Interest Distribution Amount": With respect to
any Distribution Date, an amount equal to the aggregate of the Interest
Distribution Amounts for such Distribution Date on all of the Subordinate
Certificates.
"Subordinate Percentage": With respect to any Distribution
Date, the percentage equal to the aggregate Certificate Principal Balance of the
Subordinate Certificates immediately prior to such Distribution Date divided by
the aggregate Scheduled Principal Balance of all of the Mortgage Loans as of the
close of business on the first day of the calendar month immediately preceding
such Distribution Date.
"Subordinate Principal Distribution Amount": For any
Distribution Date, an amount equal to the lesser of (i) the Available
Distribution Amount remaining after distribution of the Senior Interest
Distribution Amount, the Class PO Principal Distribution Amount, the Senior
Principal Distribution Amount and the Subordinate Interest Distribution Amount
and (ii) the sum of:
(a) the product of (x) the then-applicable Subgroup IA-1
Subordinate Percentage, Subgroup IA-2 Subordinate Percentage, Subgroup IA-3
Subordinate Percentage, Subgroup IIA-1 Subordinate Percentage, Subgroup IIA-2
Subordinate Percentage, Subgroup IIA-3 Subordinate Percentage, Subgroup IIIA-1
Subordinate Percentage, Subgroup IIIA-2 Subordinate Percentage or Group IV
Subordinate Percentage, as applicable, and (y) the sum of the following:
(i) the related Non-Class PO Percentage of the
aggregate of the principal portions of all Monthly Payments
due during the related Due Period in respect of the related
Mortgage Loans or Mortgage Loan Components, as applicable,
whether or not received;
(ii) the related Non-Class PO Percentage of the
principal portion of all Insurance Proceeds, Liquidation
Proceeds (other than amounts described in clause (c) below)
and Subsequent Recoveries received in respect of the related
Mortgage Loans or Mortgage Loan Components, as applicable,
during the related Prepayment
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Period (other than any such Mortgage Loan that was purchased,
sold or replaced pursuant to or as contemplated by Section
2.03 or Section 9.01 during the related Prepayment Period),
net of any portion thereof that represents a recovery of
principal for which an advance was made by the Master Servicer
pursuant to Section 4.03 in respect of a preceding
Distribution Date;
(iii) the related Non-Class PO Percentage of the
Stated Principal Balance (calculated immediately prior to such
Distribution Date) of each related Mortgage Loan or Mortgage
Loan Component, as applicable, that was purchased, sold or
replaced pursuant to or as contemplated by Section 2.03 or
Section 9.01 during the related Prepayment Period;
(iv) the related Non-PO Percentage of all REO
Principal Amortization collected in respect of any REO
Property during the related Prepayment Period; and
(v) in connection with the substitution of one or
more Qualified Substitute Mortgage Loans for one or more
Deleted Mortgage Loans in the related Loan Group pursuant to
Section 2.03 during the related Prepayment Period, the excess,
if any, of (A) the aggregate of the related Non-Class PO
Percentage of the Stated Principal Balances (calculated as of
the respective dates of substitution) of such Deleted Mortgage
Loans, net of the aggregate of the related Non-Class PO
Percentage of the principal portions of the Monthly Payments
due during the related Prepayment Period (to the extent
received from the related Mortgagor or advanced by the Master
Servicer and distributed pursuant to Section 4.01 on the
Distribution Date in the related Prepayment Period) in respect
of each such Deleted Mortgage Loan that was replaced prior to
the Distribution Date in the related Prepayment Period, over
(B) the aggregate of the related Non-Class PO Percentage of
the Stated Principal Balances (calculated as of the respective
dates of substitution) of such Qualified Substitute Mortgage
Loans;
(b) the product of (x) the then-applicable Subgroup IA-1
Subordinate Prepayment Percentage, Subgroup IA-2 Subordinate Prepayment
Percentage, Subgroup IA-3 Subordinate Prepayment Percentage, Subgroup IIA-1
Subordinate Prepayment Percentage, Subgroup IIA-2 Subordinate Prepayment
Percentage, Subgroup IIA-3 Subordinate Prepayment Percentage, Subgroup IIIA-1
Subordinate Prepayment Percentage, Subgroup IIIA-2 Subordinate Prepayment
Percentage or Group IV Subordinate Prepayment Percentage, as applicable, and (y)
related Non-Class PO Percentage of all Principal Prepayments received in respect
of the related Mortgage Loans or Mortgage Loan Components, as applicable, during
the related Prepayment Period;
(c) with respect to any related Mortgage Loans or Mortgage
Loan Components, as applicable, which were the subject of a Final Recovery
Determination in the related Prepayment Period, the amount, if any, by which the
net Liquidation Proceeds and Insurance Proceeds allocable to principal in
respect of such Mortgage Loans exceed the amount distributable to the related
Class A Certificates and the related Class PO Certificates pursuant to clause
(c) of the definition of "Senior Principal Distribution Amount" and clause (c)
of the definition of "Class PO Principal Distribution Amount"; and
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(d) in the case of any Distribution Date subsequent to the
initial Distribution Date, an amount equal to the excess, if any, of the
Subordinate Principal Distribution Amount for the immediately preceding
Distribution Date, over the aggregate distributions of principal made in respect
of the Subordinate Certificates on such immediately preceding Distribution Date
pursuant to Section 4.01 to the extent that any such amounts are not
attributable to Realized Losses that were allocated to the Subordinate
Certificates pursuant to Section 4.04.
"Subordination Test": With respect to any Distribution Date,
the Subordination Test will be met if both (i) the Subordinate Percentage is
equal to or greater than two times the Subordinate Percentage on the Closing
Date and (ii) the outstanding Stated Principal Balance of the Mortgage Loans
delinquent 60 days or more averaged over the last six months (including Mortgage
Loans in foreclosure and Mortgage Loans the Mortgaged Property of which is held
by REMIC I and acquired by foreclosure or deed in lieu of foreclosure), as a
percentage of the Subordinate Amount, is less than to 50%.
"Subsequent Recoveries": As of any Distribution Date, amounts
received by the Trust Fund (net of any related expenses permitted to be
reimbursed to the Master Servicer or the Special Servicer from such amounts
hereunder or under the Special Servicing Agreement) specifically related to a
Mortgage Loan that was the subject of a liquidation or an REO Disposition prior
to the related Prepayment Period that resulted in a Realized Loss.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub- Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements set forth in Section 3.08 and is
otherwise acceptable to the Master Servicer.
"Sub-Servicing Agreement": The written contract between the
Master Servicer and a Sub-Servicer relating to servicing and administration of
certain Mortgage Loans as provided in Section 3.02.
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of REMIC I due to its classification as a REMIC under the
REMIC Provisions, together with any and all other information reports or returns
that may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
"Termination Price": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
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"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trigger Amount": With respect to the Class A Certificates of
any Certificate Group and any Distribution Date, the Trigger Amount occurring
after the first five years will be as follows: for any Distribution Date during
the sixth year after the Closing Date, 30% of the initial aggregate Certificate
Principal Balance of the Subordinate Certificates; for any Distribution Date
during the seventh year after the Closing Date, 35% of the initial aggregate
Certificate Principal Balance of the Subordinate Certificates; for any
Distribution Date during the eighth year after the Closing Date, 40% of the
initial aggregate Certificate Principal Balance of the Subordinate Certificates;
for any Distribution Date during the ninth year after the Closing Date, 45% of
the initial aggregate Certificate Principal Balance of the Subordinate
Certificates; and for any Distribution Date during the tenth year (or any year
thereafter) after the Closing Date, 50% of the initial aggregate Certificate
Principal Balances of the Subordinate Certificates.
"Trust": The trust created hereunder.
"Trustee": U.S. Bank National Association, or its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": The amount payable as such to the Trustee on
each Distribution Date pursuant to Section 8.05(a), which shall be equal to the
Trustee Fee Rate accrued for one month on the same principal amount on which
interest on each Mortgage Loan accrues for such calendar month (or, in the case
of an REO Property, on the Scheduled Principal Balance of such REO Property as
of the Due Date for the related Mortgage Loan occurring in the month prior to
the month of such Distribution Date).
"Trustee Fee Rate": 0.005% per annum.
"Trust Fund": Collectively, all of the assets of the Trust
REMICs.
"Trust REMIC": Any of REMIC I, REMIC II or REMIC III.
"Uncertificated Balance": The amount of any REMIC I Regular
Interest or REMIC II Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Balance of each REMIC
I Regular Interest (other than REMIC I Regular Interest I-LT- XS1, REMIC I
Regular Interest I-LT-XS2, REMIC I Regular Interest I-LT-XS3, REMIC I Regular
Interest I-LT-XS4) and each REMIC II Regular Interest (other than REMIC II
Regular Interest II-LT- 1, REMIC II Regular Interest II-LT-2, REMIC II Regular
Interest II-LT-3 and REMIC II Regular Interest II-LT-4) shall equal the amount
set forth in the Preliminary Statement hereto as its initial Uncertificated
Balance. On each Distribution Date, the Uncertificated Balance of each REMIC I
Regular Interest (other than REMIC I Regular Interest I-LT-XS1, REMIC I Regular
Interest I-LT- XS2, REMIC I Regular Interest I-LT-XS3, REMIC I Regular Interest
I-LT-XS4) and each REMIC
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II Regular Interest (other than REMIC II Regular Interest II-LT-1, REMIC II
Regular Interest II-LT- 2, REMIC II Regular Interest II-LT-3 and REMIC II
Regular Interest II-LT-4) shall be reduced by all distributions of principal
deemed to have been made on such REMIC I Regular Interest or REMIC II Regular
Interest, as applicable, on such Distribution Date pursuant to Section 4.04.
"Uncertificated Interest": With respect to any REMIC I Regular
Interest (other than REMIC I Regular Interest I-LTPO1, REMIC I Regular Interest
I-LTPO2, REMIC I Regular Interest I-LTPO3 and REMIC I Regular Interest I-LTPO4)
and any REMIC II Regular Interest (other than REMIC II Regular Interest
II-LTPO1, REMIC II Regular Interest II-LTPO2, REMIC II Regular Interest II-LTPO3
and REMIC II Regular Interest II-LTPO4) for any Distribution Date, one month's
interest at the related REMIC I Remittance Rate or REMIC II Remittance Rate, as
applicable, applicable to such REMIC I Regular Interest or REMIC II Regular
Interest for such Distribution Date, accrued on the Uncertificated Balance or
Uncertificated Notional Amount of such REMIC I Regular Interest or REMIC II
Regular Interest, as applicable, outstanding immediately prior to such
Distribution Date. Uncertificated Interest in respect of any REMIC I Regular
Interest or REMIC II Regular Interest shall accrue on the basis of a 360-day
year consisting of twelve 30-day Interest Accrual Periods. Uncertificated
Interest with respect to each Distribution Date, as to any REMIC I Regular
Interest or REMIC II Regular Interest shall be reduced, in the case of any
Distribution Date, by the amount of any Prepayment Interest Shortfalls (to the
extent not covered by payments in respect of Compensating Interest by the
Special Servicer or by the Master Servicer) and Relief Act Interest Shortfalls
that were allocated to such REMIC I Regular Interest or REMIC II Regular
Interest on such Distribution Date pursuant to Section 1.02.
"Uncertificated Notional Amount": With respect to REMIC I
Regular Interest I- LTXS1, REMIC I Regular Interest I-LTXS2, REMIC I Regular
Interest I-LTXS3, REMIC I Regular Interest I-LTXS4, the aggregate Stated
Principal Balances of the Group I Mortgage Loans, Group II Mortgage Loans, Group
III Mortgage Loans and the Group IV Mortgage Loans, respectively.
"Undercollateralized Amount": As to any Distribution Date and
Subgroup IA-1, the excess, if any, of the aggregate Certificate Principal
Balance of the Class IA-1 Certificates immediately after payments of the related
Senior Principal Distribution Amount for such Distribution Date over the sum of
(i) the aggregate of the Non-Class PO Percentages of the Scheduled Principal
Balances of the Group I Mortgage Loans and Group I Mortgage Loan Components in
Subgroup IA-1 plus (ii) the aggregate of the Non-Class PO Percentages of the
Scheduled Principal Balances of the REO Properties (or related portions thereof)
in Subgroup IA-1, in each case, after scheduled and unscheduled payments in
respect of principal . As to any Distribution Date and Subgroup IA-2, the
excess, if any, of the aggregate Certificate Principal Balance of the Class IA-2
Certificates immediately after payments of the related Senior Principal
Distribution Amount for such Distribution Date over the sum of (i) the aggregate
of the Non-Class PO Percentages of the Scheduled Principal Balances of the Group
I Mortgage Loan Components in Subgroup IA-2 plus (ii) the aggregate of the
Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties (or related portions thereof) in Subgroup IA-2, in each case, after
scheduled and unscheduled payments in respect of principal . As to any
Distribution Date and Subgroup IA-3, the excess, if any, of the aggregate
Certificate Principal Balance of the Class IA-3 Certificates immediately after
payments of the related Senior Principal Distribution Amount for such
Distribution Date over the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group
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I Mortgage Loans and Group I Mortgage Loan Components in Subgroup IA-3 plus (ii)
the aggregate of the Non-Class PO Percentages of the Scheduled Principal
Balances of the REO Properties (or related portions thereof) in Subgroup IA-3,
in each case, after scheduled and unscheduled payments in respect of principal .
As to any Distribution Date and Subgroup IIA-1, the excess, if any, of the
aggregate Certificate Principal Balance of the Class IIA-1 Certificates
immediately after payments of the related Senior Principal Distribution Amount
for such Distribution Date over the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group II Mortgage Loans
and Group II Mortgage Loan Components in Subgroup IIA-1 plus (ii) the aggregate
of the Non-Class PO Percentages of the Scheduled Principal Balances of the REO
Properties (or related portions thereof) in Subgroup IIA-1, in each case, after
scheduled and unscheduled payments in respect of principal . As to any
Distribution Date and Subgroup IIA-2, the excess, if any, of the aggregate
Certificate Principal Balance of the Class IIA-2 Certificates immediately after
payments of the related Senior Principal Distribution Amount for such
Distribution Date over the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group II Mortgage Loan
Components in Subgroup IIA-2 plus (ii) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the REO Properties (or
related portions thereof) in Subgroup IIA-2, in each case, after scheduled and
unscheduled payments in respect of principal . As to any Distribution Date and
Subgroup IIA-3, the excess, if any, of the aggregate Certificate Principal
Balance of the Class IIA-3 Certificates immediately after payments of the
related Senior Principal Distribution Amount for such Distribution Date over the
sum of (i) the aggregate of the Non-Class PO Percentages of the Scheduled
Principal Balances of the Group II Mortgage Loans and Group II Mortgage Loan
Components in Subgroup IIA-3 plus (ii) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the REO Properties (or
related portions thereof) in Subgroup IIA-3, in each case, after scheduled and
unscheduled payments in respect of principal . As to any Distribution Date and
Subgroup IIIA-1, the excess, if any, of the aggregate Certificate Principal
Balance of the Class IIIA-1 Certificates immediately after payments of the
related Senior Principal Distribution Amount for such Distribution Date over the
sum of (i) the aggregate of the Non-Class PO Percentages of the Scheduled
Principal Balances of the Group II Mortgage Loans and Group III Mortgage Loan
Components in Subgroup IIIA-1 plus (ii) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the REO Properties (or
related portions thereof) in Subgroup IIIA-1, in each case, after scheduled and
unscheduled payments in respect of principal . As to any Distribution Date and
Subgroup IIIA- 2, the excess, if any, of the aggregate Certificate Principal
Balance of the Class IIIA-2 Certificates immediately after payments of the
related Senior Principal Distribution Amount for such Distribution Date over the
sum of (i) the aggregate of the Non-Class PO Percentages of the Scheduled
Principal Balances of the Group III Mortgage Loans and Group III Mortgage Loan
Components in Subgroup IIIA-2 plus (ii) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the REO Properties (or
related portions thereof) in Subgroup IIIA-2, in each case, after scheduled and
unscheduled payments in respect of principal . As to any Distribution Date and
Loan Group VI, the excess, if any, of the aggregate Certificate Principal
Balance of the Class A Certificates of Certificate Group IV immediately after
payments of the related Senior Principal Distribution Amount for such
Distribution Date over the sum of (i) the aggregate of the Non-Class PO
Percentages of the Scheduled Principal Balances of the Group IV Mortgage Loans
plus (ii) the aggregate of the Non- Class PO Percentages of the Scheduled
Principal Balances of the REO Properties (or related portions thereof) in Loan
Group IV, in each case, after scheduled and unscheduled payments in respect of
principal were received or advanced.
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"Undercollateralized Subgroup": As to any Distribution Date,
any Subgroup for which an Undercollateralized Amount greater than zero is
calculated.
"Uninsured Cause": Any cause of damage to a Mortgaged Property
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section
3.14.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia (except, in the case of a partnership, to the extent provided in
regulations); provided that, for purposes solely of the restrictions on the
transfer of the Class R Certificates, no partnership or other entity treated as
a partnership for United States federal income tax purposes shall be treated as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, or an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust. To the extent
prescribed in regulations by the Secretary of the Treasury, a trust which was in
existence on August 20, 1996 (other than a trust treated as owned by the grantor
under subpart E of part I of subchapter J of chapter 1 of the Code), and which
was treated as a United States person on August 20, 1996 may elect to continue
to be treated as a United States person notwithstanding the previous sentence.
The term "United States" shall have the meaning set forth in Section 7701 of the
Code.
"Value": With respect to any Mortgaged Property that is the
only Mortgaged Property securing a Mortgage Loan or is the primary Mortgaged
Property securing a Mortgage Loan, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at the
time of origination of the Mortgage Loan and (ii) the purchase price paid for
the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan, PROVIDED, HOWEVER, in the case of a Refinanced Mortgage Loan,
such value of the Mortgaged Property is based solely upon the value determined
by an appraisal made for the originator of such Refinanced Mortgage Loan at the
time of origination of such Refinanced Mortgage Loan by an appraiser.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, (i) 98% of all of the Voting Rights shall be allocated
to the Regular Certificates (other than the Class XS Certificates), in
proportion to their then outstanding Certificate Principal Balances, (ii) 1% of
all of the Voting Rights shall be allocated to the Class XS Certificates, in
proportion to their then outstanding Notional Amounts and (iii) 1% of all Voting
Rights will be allocated among the holders of the Residual Certificates, in
proportion to their Percentage Interests in each such Class. All Voting Rights
allocated to any Class of Certificates shall be allocated among such
Certificates PRO RATA in accordance with the respective Percentage Interests
evidenced thereby.
"Weighted Average Stripped Interest Rate": With respect to any
Distribution Date and the Mortgage Loans and REO Properties in any Loan Group,
the weighted average of the
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Stripped Interest Rates of such Mortgage Loans and REO Properties in effect
during the most recently ended calendar month on the respective Scheduled
Principal Balances thereof as of the Due Date in such most recently ended
calendar month (or, in the case of the initial Distribution Date, as of the
Cut-off Date).
SECTION 1.02. Allocation of Certain Interest Shortfalls.
The aggregate amount of any Prepayment Interest Shortfalls (to
the extent not covered by payments by the Master Servicer or the Special
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among the Certificates (other than the Class PO Certificates), PRO
RATA in accordance with, and to the extent of one month's interest at the
Pass-Through Rate on the respective Certificate Principal Balance or Notional
Amount of such Certificate immediately prior to such Distribution Date.
The aggregate amount of any Prepayment Interest Shortfalls (to
the extent not covered by payments by the Master Servicer or the Special
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among the REMIC I Regular Interests (other than REMIC I Regular
Interest I-LTPO1, REMIC I Regular Interest I-LTPO2, REMIC I Regular Interest
I-LTPO3 and REMIC I Regular Interest I-LTPO4) on a PRO RATA basis based on their
respective Uncertificated Balances.
The aggregate amount of any Prepayment Interest Shortfalls (to
the extent not covered by payments by the Master Servicer or the Special
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among the REMIC II Regular Interests (other than REMIC II Regular
Interest II-LTPO1, REMIC II Regular Interest II-LTPO2, REMIC II Regular Interest
II-LTPO3 and REMIC II Regular Interest II-LTPO4) on a PRO RATA basis based on
their respective Uncertificated Balances
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights of the Depositor under the
Mortgage Loan Purchase Agreement, and all other assets included or to be
included in REMIC I. Such assignment includes all interest and principal
received by the Depositor or the Master Servicer on or with respect to the
Mortgage Loans (other than payments of principal and interest due on such
Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers
to the Trustee and the Special Sub-Servicer an executed copy of the Mortgage
Loan Purchase Agreement.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, the Trustee, the following documents
or instruments with respect to each Mortgage Loan so transferred and assigned (a
"Mortgage File"):
(i) the original Mortgage Note, endorsed either (A) in blank
or (B) in the following form: "Pay to the order of U.S. Bank National
Association, as Trustee under the Pooling and Servicing Agreement,
dated as of June 1, 2004, among Citigroup Mortgage Loan Trust Inc.,
National City Mortgage Co. and U.S. Bank National Association, without
recourse," or with respect to any lost Mortgage Note, an original lost
note affidavit stating that the original Mortgage Note was lost,
misplaced or destroyed, together with a copy of the related Mortgage
Note; PROVIDED, HOWEVER, that such substitutions of lost note
affidavits for original Mortgage Notes may occur only with respect to
Mortgage Loans having a maximum aggregate Scheduled Principal Balance
of as of the Cut-off Date which is less than or equal to 1.00% of the
aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Cut- off Date;
(ii) the original Mortgage, noting the presence of the MIN of
the Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording
thereon, and the original recorded power of attorney, if the Mortgage
was executed pursuant to a power of attorney, with evidence of
recording thereon or, if such Mortgage or power of attorney has been
submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original submitted for
recording;
(iii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment of Mortgage, in form and substance
acceptable for recording. The Mortgage shall be assigned either (A) in
blank or (B) to " U.S. Bank National Association, as Trustee
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under the Pooling and Servicing Agreement, dated as of June 1, 2004,
among Citigroup Mortgage Loan Trust Inc., National City Mortgage Co.
and U.S. Bank National Association, without recourse,"
(iv) an original or a certified copy of any intervening
assignment of Mortgage showing a complete chain of assignments from the
originator to the Person executing the Assignment of Mortgage (or to
MERS, if the Mortgage Loan is registered on the MERS(R) System and
noting the presence of the MIN) pursuant to clause (iii) above;
(v) the original lender's title insurance policy, together
with all endorsements or riders which were issued with or subsequent to
the issuance of such policy, insuring the priority of the Mortgage as a
first lien on the Mortgaged Property represented therein as a fee
interest vested in the Mortgagor, or in the event such original title
policy is unavailable, a written commitment or uniform binder or
preliminary report of title issued by the title insurance or escrow
company or an attorney's title opinion, if customary in the related
jurisdiction where the Mortgaged Property is located; and
(vi) the originals of all assumption, modification,
consolidation or extension agreements, if any.
With respect to a maximum of 1.0% of the Mortgage Loans, by
aggregate Scheduled Principal Balance of the Mortgage Loans as of the Cut-off
Date, if any original Mortgage Note referred to in clause (i) above cannot be
located, the obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon delivery to the Trustee of a photocopy of such
Mortgage Note, if available, with a lost note affidavit. If any of the original
Mortgage Notes for which a lost note affidavit was delivered to the Trustee is
subsequently located, such original Mortgage Note shall be delivered to the
Trustee within three Business Days.
If any of the documents referred to in clauses (ii), (iii) or
(iv) above has as of the Closing Date been submitted for recording but either
(x) has not been returned from the applicable public recording office or (y) has
been lost or such public recording office has retained the original of such
document, the obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Trustee, no later than the
Closing Date, of a copy of each such document certified by the Seller in the
case of (x) above or the applicable public recording office in the case of (y)
above to be a true and complete copy of the original that was submitted for
recording and (2) if such copy is certified by the Seller, delivery to the
Trustee, promptly upon receipt thereof, of either the original or a copy of such
document certified by the applicable public recording office to be a true and
complete copy of the original. The Depositor shall deliver or cause to be
delivered to the Trustee promptly upon receipt thereof any other documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
The Trustee shall enforce the obligations of the Seller under
the Mortgage Loan Purchase Agreement to cause all Assignments referred to in
Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv)
hereof to be recorded at the Seller's expense. The Master Servicer in its
capacity as Seller shall furnish the Trustee, or its designated agent, with a
copy of each
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Assignment submitted for recording. In the event that any such Assignment is
lost or returned unrecorded because of a defect therein, the Trustee shall cause
the Seller to promptly have a substitute Assignment prepared or have such defect
cured, as the case may be, and thereafter cause each such Assignment to be duly
recorded.
Without limiting the requirement that such Assignments be in
recordable form, the Trustee shall not be required to submit or cause to be
submitted for recording each Assignment delivered to it pursuant to Sections
2.01(iii) and (iv) if such recordation shall not, as of the Closing Date, be
required by the Rating Agencies, as a condition to their assignment on the
Closing Date of their initial ratings to the Certificates, as evidenced by the
delivery by the Rating Agencies of their ratings letters on the Closing Date;
provided, however, the Trustee shall enforce the obligation of the Seller under
the Mortgage Loan Purchase Agreement to submit each Assignment for recording, at
the Seller's expense, upon a Responsible Officer of the Trustee gaining actual
knowledge of the earliest to occur of: (i) direction by Holders of Certificates
entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master
Servicer Event of Default, (iii) the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer
as described in Section 7.02 hereof, (v) with respect to any particular Mortgage
Loan, upon the occurrence of a bankruptcy, insolvency or foreclosure relating to
the Mortgagor under the related Mortgage or (vi) with respect to Specially
Serviced Mortgage Loans, upon the request of the Special Servicer. In connection
with clause (v) above, in the case of any Mortgage Loan that has defaulted, and
in connection with clause (vi) above, the Master Servicer in its capacity as
Seller or the Special Servicer (as applicable)shall submit such assignment for
recording upon such defaulted Mortgage Loan becoming 90 days or more Delinquent
or at such other time as the recordation of the Assignment of Mortgage relating
to such defaulted Mortgage Loan shall customarily be effected, in connection
with the foreclosure thereupon, by the Master Servicer or the Special Servicer,
as applicable, in accordance with the servicing standards set forth in this
Agreement. Notwithstanding the foregoing, if the Seller fails to pay the cost of
recording the Assignments, such expense will be paid by the Trustee and the
Trustee shall be reimbursed for such expenses as Extraordinary Trust Fund
Expenses.
In addition to the foregoing, the Depositor shall also deliver
to the Trustee a true and complete copy, certified as such by an officer of the
Seller, of each certificate or other evidence of merger or change of name, if
any of the Mortgage Loans were acquired by the Seller by merger or acquired or
originated by the Seller while conducting business under a name other than its
present name and such certificate or other evidence shall not have been recorded
in the public recording office where the related Mortgage is required to be
recorded
The Depositor shall deliver or cause to be delivered to the
Trustee promptly upon receipt thereof any other original documents constituting
a part of a Mortgage File received with respect to any Mortgage Loan, including,
but not limited to, any original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Depositor further agrees that it will
cause, within 30 Business Days after the Closing Date, the MERS(R) System to
indicate that such Mortgage Loans have been assigned by the Depositor to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by
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including (or deleting, in the case of Mortgage Loans which are repurchased in
accordance with this Agreement) in such computer files (a) the code in the field
which identifies the specific Trustee and (b) the code in the field "Pool Field"
which identifies the series of the Certificates issued in connection with such
Mortgage Loans. The Depositor further agrees that it will not, and will not
permit the Master Servicer to, and the Master Servicer agrees that it will not,
alter the codes referenced in this paragraph with respect to any Mortgage Loan
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
All original documents relating to the Mortgage Loans that are
not delivered to the Trustee are and shall be held by or on behalf of the
Seller, the Depositor or the Master Servicer, as the case may be, in trust for
the benefit of the Trustee on behalf of the Certificateholders. In the event
that any such original document is required pursuant to the terms of this
Section to be a part of a Mortgage File, such document shall be delivered
promptly to the Trustee. Any such original document delivered to or held by the
Depositor that is not required pursuant to the terms of this Section to be a
part of a Mortgage File, shall be delivered promptly to the Master Servicer.
The parties hereto understand and agree that it is not
intended that any mortgage loan be included in the Trust that is either (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004.
SECTION 2.02. Acceptance of REMIC I by the Trustee.
Subject to the provisions of Section 2.01 and subject to the
review described below and any exceptions noted on the exception report
described in the second paragraph below, the Trustee acknowledges receipt of the
documents referred to in Section 2.01 above and all other assets included in the
definition of "REMIC I" and declares that it holds and will hold such documents
and the other documents delivered to it constituting a Mortgage File, and that
it holds or will hold all such assets and such other assets included in the
definition of "REMIC I" in trust for the exclusive use and benefit of all
present and future Certificateholders.
On or prior to the Closing Date, the Trustee agrees, for the
benefit of the Certificateholders, to execute and deliver to the Depositor and
the Master Servicer an acknowledgment of receipt of each Mortgage Note (with any
exceptions noted), substantially in the form attached as Exhibit C-3 hereto.
The Trustee agrees, for the benefit of the Certificateholders,
to review each Mortgage File within 90 days of the Closing Date (or, with
respect to any document delivered after the Startup Day, within 90 days of
receipt and with respect to any Qualified Substitute Mortgage, within 90 days
after the assignment thereof). The Trustee further agrees, for the benefit of
the Certificateholders, to certify in substantially the form attached hereto as
Exhibit C-1, within 90 days following the date on which the Trustee receives the
remaining contents of each Mortgage File from the Depositor, with respect to
each Mortgage Loan (or, with respect to any document delivered after the Startup
Day, within 90 days of receipt and with respect to any Qualified Substitute
Mortgage, within 90 days after the assignment thereof) that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in the exception
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report annexed thereto as not being covered by such certification), (i) all
documents required to be delivered to it pursuant Section 2.01 of this Agreement
are in its possession, (ii) such documents have been reviewed by it and have not
been mutilated, damaged or torn and relate to such Mortgage Loan and (iii) based
on its examination and only as to the foregoing, the information set forth in
the Mortgage Loan Schedule that corresponds to items (i), (iii) and (xiv) of the
Mortgage Loan Schedule accurately reflects information set forth in the Mortgage
File. It is herein acknowledged that, in conducting such review, the Trustee is
under no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that they are genuine,
enforceable, or appropriate for the represented purpose or that they have
actually been recorded or that they are other than what they purport to be on
their face.
Prior to the first anniversary date of this Agreement the
Trustee shall deliver to the Depositor and the Master Servicer a final
certification in the form annexed hereto as Exhibit C-2 evidencing the
completeness of the Mortgage Files, with any applicable exceptions noted
thereon.
If in the process of reviewing the Mortgage Files and making
or preparing, as the case may be, the certifications referred to above, the
Trustee finds any document or documents constituting a part of a Mortgage File
to be missing or defective in any material respect, at the conclusion of its
review the Trustee shall so notify the Depositor and the Master Servicer. In
addition, upon the discovery by the Depositor or the Master Servicer (or upon
receipt by the Trustee of written notification of such breach) of a breach of
any of the representations and warranties made by the Seller in the Mortgage
Loan Purchase Agreement in respect of any Mortgage Loan which materially
adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties to this Agreement.
The Depositor and the Trustee intend that the assignment and
transfer herein contemplated constitute a sale of the Mortgage Loans, the
related Mortgage Notes and the related documents, conveying good title thereto
free and clear of any liens and encumbrances, from the Depositor to the Trustee
in trust for the benefit of the Certificateholders and that such property not be
part of the Depositor's estate or property of the Depositor in the event of any
insolvency by the Depositor. In the event that such conveyance is deemed to be,
or to be made as security for, a loan, the parties intend that the Depositor
shall be deemed to have granted and does hereby grant to the Trustee a first
priority perfected security interest in all of the Depositor's right, title and
interest in and to the Mortgage Loans, the related Mortgage Notes and the
related documents, and that this Agreement shall constitute a security agreement
under applicable law.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by
the Seller.
(a) Upon discovery or receipt of notice of any materially
defective document in, or that a document is missing from, a Mortgage File or of
the breach by the Seller of any representation, warranty or covenant under the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan which
materially adversely affects the value of such Mortgage Loan or the interest
therein of the Certificateholders, the Trustee shall promptly notify the Seller
and the Master Servicer of such defect, missing document or breach and request
that the Seller deliver such missing document or cure such defect or breach
within 90 days from the date the Seller was notified of such
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missing document, defect or breach, and if the Seller does not deliver such
missing document or cure such defect or breach in all material respects during
such period, the Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from REMIC I
at the Purchase Price within 90 days after the date on which the Seller was
notified (subject to Section 2.03(e)) of such missing document, defect or
breach, if and to the extent that the Seller is obligated to do so under the
Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased
Mortgage Loan shall be remitted by the Seller to the Master Servicer for deposit
into the Collection Account, and the Trustee, upon receipt of written
certification from the Master Servicer of such deposit, shall release to the
Seller the related Mortgage File and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as the Seller shall
furnish to it and as shall be necessary to vest in the Seller any Mortgage Loan
released pursuant hereto, and the Trustee shall have no further responsibility
with regard to such Mortgage File. In furtherance of the foregoing, if the
Seller is not a member of MERS and repurchases a Mortgage Loan which is
registered on the MERS(R) System, the Seller at its own expense and without any
right of reimbursement, shall cause MERS to execute and deliver an assignment of
the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller
and shall cause such Mortgage to be removed from registration on the MERS(R)
System in accordance with MERS' rules and regulations. In lieu of repurchasing
any such Mortgage Loan as provided above, if so provided in the Mortgage Loan
Purchase Agreement, the Seller may cause such Mortgage Loan to be removed from
REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute
one or more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d). It is understood and agreed that the
obligation of the Seller to cure or to repurchase (or to substitute for) any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy respecting such omission, defect or
breach available to the Trustee on behalf of the Certificateholders.
(b) [Reserved];
(c) Within 90 days of the earlier of discovery by the Master
Servicer or receipt of notice by the Master Servicer of the breach of any
representation, warranty or covenant of the Master Servicer set forth in Section
2.05 which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the Master Servicer shall cure such
breach in all material respects.
(d) Any substitution of Qualified Substitute Mortgage Loans
for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected
prior to the date which is two years after the Startup Day for REMIC I.
As to any Deleted Mortgage Loan for which the Seller
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by the Seller delivering to the Trustee, for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2.01, together with
an Officers' Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection
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with such substitution. The Trustee shall acknowledge receipt for such Qualified
Substitute Mortgage Loan or Loans and shall thereafter, review such documents
within the time periods and in the manner specified in Section 2.02 and deliver
the applicable certifications, with any applicable exceptions noted thereon,
within the time periods and in the manner specified in Section 2.02. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution are not part of the Trust Fund and will be retained by the Seller.
For the month of substitution, distributions to Certificateholders will reflect
the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date
in the month of substitution, and the Seller shall thereafter be entitled to
retain all amounts subsequently received in respect of such Deleted Mortgage
Loan. The Trustee shall give or cause to be given written notice to the
Certificateholders that such substitution has taken place, and the Master
Servicer shall amend the Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the substitution of
the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such
amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such
Qualified Substitute Mortgage Loan or Loans shall constitute part of the
Mortgage Pool and shall be subject in all respects to the terms of this
Agreement and the Mortgage Loan Purchase Agreement, including all applicable
representations and warranties thereof included in the Mortgage Loan Purchase
Agreement, in each case as of the date of substitution.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (the "Substitution Shortfall Amount"),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan,
the Scheduled Principal Balance thereof as of the date of substitution, together
with one month's interest on such Scheduled Principal Balance at the applicable
Net Mortgage Rate. On the date of such substitution, the Seller will deliver or
cause to be delivered to the Master Servicer for deposit in the Collection
Account an amount equal to the Substitution Shortfall Amount, if any, and the
Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans
and certification by the Master Servicer of such deposit, shall release to the
Seller the related Mortgage File or Files and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Seller shall deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and
deliver to the Trustee an Opinion of Counsel to the effect that such
substitution will not cause (a) any federal tax to be imposed on REMIC I,
including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code, or (b) REMIC I to fail
to qualify as a REMIC at any time that any Certificate is outstanding.
(e) Upon discovery by the Depositor, the Master Servicer or
the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering such
fact shall within two Business Days give written notice thereof to the other
parties. In connection therewith, the Seller or the Depositor shall repurchase
or, subject to the limitations set forth in Section 2.03(d), substitute one or
more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within
90 days of the earlier of discovery or receipt
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of such notice with respect to such affected Mortgage Loan. Such repurchase or
substitution shall be made by (i) the Seller, if the affected Mortgage Loan's
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Seller under the Mortgage Loan
Purchase Agreement, or (ii) the Depositor, if the affected Mortgage Loan's
status as a non-qualified mortgage is a breach of no representation or warranty.
Any such repurchase or substitution shall be made in the same manner as set
forth in Sections 2.03(a). The Trustee shall reconvey to the Depositor or the
Seller, as the case may be, the Mortgage Loan to be released pursuant hereto in
the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased by the Seller for breach of a representation or warranty.
SECTION 2.04. [Reserved].
SECTION 2.05. Representations, Warranties and Covenants of the
Master Servicer.
The Master Servicer hereby represents, warrants and covenants
to the Trustee, for the benefit of each of the Trustee and the
Certificateholders, and to the Depositor that as of the Closing Date or as of
such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Ohio and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Master
Servicer in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such State, to the extent necessary to ensure its
ability to enforce each Mortgage Loan and to service the Mortgage Loans
in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and
authority to service each Mortgage Loan, and to execute, deliver and
perform, and to enter into and consummate the transactions contemplated
by this Agreement and has duly authorized by all necessary corporate
action on the part of the Master Servicer the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with
its terms, except to the extent that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought;
(iii) The execution and delivery of this Agreement by the
Master Servicer, the servicing of the Mortgage Loans by the Master
Servicer hereunder, the consummation of any other of the transactions
herein contemplated, and the fulfillment of or compliance with the
terms hereof are in the ordinary course of business of the Master
Servicer and will not (A) result in a breach of any term or provision
of the charter or by-laws of the Master Servicer
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or (B) conflict with, result in a breach, violation or acceleration of,
or result in a default under, the terms of any other material agreement
or instrument to which the Master Servicer is a party or by which it
may be bound, or any statute, order or regulation applicable to the
Master Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Master Servicer; and the
Master Servicer is not a party to, bound by, or in breach or violation
of any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or, to the Master
Servicer's knowledge, would in the future materially and adversely
affect, (x) the ability of the Master Servicer to perform its
obligations under this Agreement or (y) the business, operations,
financial condition, properties or assets of the Master Servicer taken
as a whole;
(iv) The Master Servicer is an approved seller/servicer for
Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved
mortgagee pursuant to Section 203 of the National Housing Act;
(v) No litigation is pending against the Master Servicer that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master Servicer
to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Master Servicer of, or compliance by the Master
Servicer with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations or orders, if any, that have been obtained prior to the
Closing Date;
(vii) The Master Servicer covenants that its computer and
other systems used in servicing the Mortgage Loans operate in a manner
such that the Master Servicer can service the Mortgage Loans in
accordance with the terms of this Agreement; and
(viii) The Master Servicer is a member of MERS in good
standing, and will comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the Mortgage
Loans that are registered with MERS.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.05 shall survive delivery
of the Mortgage Files to the Trustee and shall inure to the benefit of the
Trustee, the Depositor and the Certificateholders. Upon discovery by any of the
Depositor, the Master Servicer or the Trustee of a breach of any of the
foregoing representations, warranties and covenants which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to the Trustee.
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SECTION 2.06. Issuance of Class R-I Interest and REMIC I
Regular Interests, Class R-II Interest and REMIC
II Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery to it of the Mortgage Files, subject to the provisions of
Section 2.01 and Section 2.02, together with the assignment to it of all other
assets included in REMIC I delivered on the date hereof, receipt of which is
hereby acknowledged. The interests evidenced by the Class R-I Interest, together
with the REMIC I Regular Interests, constitute the entire beneficial ownership
interest in REMIC I.
The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests, receipt of which is hereby acknowledged. The interests
evidenced by the Class R-II Interest, together with the REMIC II Regular
Interests, constitute the entire beneficial ownership interest in REMIC II.
SECTION 2.07. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC III by the Trustee.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse all the right, title and interest of the Depositor in
and to the REMIC II Regular Interests for the benefit of the Certificateholders.
The Trustee acknowledges receipt of the REMIC II Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Certificateholders. The rights of the
Certificateholders to receive distributions from the proceeds of REMIC III in
respect of the Certificates, and all ownership interests of the
Certificateholders in and to such distributions, shall be as set forth in this
Agreement.
SECTION 2.08. Issuance of Certificates.
The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and REMIC II Regular Interests and, concurrently therewith and
in exchange therefor, pursuant to the written request of the Depositor executed
by an officer of the Depositor, the Trustee has executed, authenticated and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing the entire beneficial ownership interest in REMIC III.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage
Loans on behalf of the Trustee and in the best interests of and for the benefit
of the Certificateholders (as determined by the Master Servicer in its
reasonable judgment) in accordance with the terms of this Agreement and the
respective Mortgage Loans and, to the extent consistent with such terms, in the
same manner in which it services and administers similar mortgage loans for its
own portfolio, giving due consideration to customary and usual standards of
practice of prudent mortgage lenders or loan servicers administering similar
mortgage loans until the Mortgage Loan becomes a Specially Serviced Mortgage
Loan, and then following the Loss Mitigation Procedures with respect to Mortgage
Loans which are not Specially Serviced Mortgaged Loans but, in each case,
without regard to:
(i) any relationship that the Master Servicer, any
Sub-Servicer or any Affiliate of the Master Servicer or any
Sub-Servicer may have with the related Mortgagor;
(ii) the ownership of any Certificate by the Master Servicer
or any Affiliate of the Master Servicer;
(iii) the Master Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) the Master Servicer's or any Sub-Servicer's right to
receive compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, the Master
Servicer shall also seek to maximize the timely and complete recovery of
principal and interest on the Mortgage Notes. Subject only to the
above-described servicing standards and the terms of this Agreement and of the
respective Mortgage Loans, the Master Servicer shall have full power and
authority, acting alone or through Sub-Servicers as provided in Section 3.02, to
do or cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Master Servicer in its own name or in the name
of a Sub-Servicer is hereby authorized and empowered by the Trustee when the
Master Servicer believes it appropriate in its best judgment in accordance with
the servicing standards set forth above, to execute and deliver, on behalf of
the Certificateholders and the Trustee, and upon notice to the Trustee, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and Certificateholders. The Master Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide
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to the Mortgagors any reports required to be provided to them thereby. The
Master Servicer shall also comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under each Primary Mortgage
Insurance Policy and any standard hazard insurance policy. Subject to Section
3.17, the Trustee shall execute, at the written request of the Master Servicer,
and furnish to the Master Servicer and any Sub-Servicer such documents as are
necessary or appropriate to enable the Master Servicer or any Sub-Servicer to
carry out their servicing and administrative duties hereunder, and the Trustee
hereby grants to the Master Servicer a power of attorney in the form of Exhibit
L attached hereto to carry out such duties. The Trustee shall deliver such power
of attorney in the form of Exhibit L to the Special Servicer for each Specially
Serviced Mortgage Loan at the time the Mortgage Loan becomes a Specially
Serviced Mortgage Loan. The Trustee shall not be liable for the actions of the
Master Servicer, the Special Servicer or any Sub-Servicers under such powers of
attorney.
In accordance with the standards of the preceding paragraph,
the Master Servicer shall advance or cause to be advanced funds as necessary for
the purpose of effecting the timely payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.09, and further as provided in Section 3.11. Any cost incurred by the
Master Servicer or by Sub- Servicers in effecting the timely payment of taxes
and assessments on a Mortgaged Property shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit.
The Master Servicer further is authorized and empowered, on
behalf of the Certificateholders and the Trustee, in its own name or in the name
of the Sub-Servicer, when the Master Servicer or the Sub-Servicer, as the case
may be, believes it is appropriate in its best judgment to register any Mortgage
Loan on the MERS(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. Any reasonable expenses incurred in
connection with the actions described in the preceding sentence or as a result
of MERS discontinuing or becoming unable to continue operations in connection
with the MERS(R) System, shall be subject to withdrawal by the Master Servicer,
or the Special Servicer, as the case may be, from the Collection Account.
Notwithstanding anything in this Agreement to the contrary,
the Master Servicer may not make any future advances with respect to a Mortgage
Loan (except as provided in Section 4.03) and the Master Servicer shall not
permit any modification, waiver or amendment of any term of any Mortgage Loan,
unless (i) the Master Servicer provides an Opinion of Counsel that such action
will not both (A) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury regulations
promulgated thereunder) and (B) cause REMIC I to fail to qualify as a REMIC
under the Code or the imposition of any tax on "prohibited transactions" or
"contributions after the startup date" under the REMIC Provisions or (ii) such
modification, waiver or amendment is made in accordance with the terms of
Section 3.07.
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The Master Servicer may delegate its responsibilities under
this Agreement; provided, however, that no such delegation shall release the
Master Servicer from the responsibilities or liabilities arising under this
Agreement.
SECTION 3.02. Sub-Servicing Agreements Between the Master
Servicer and Sub-Servicers.
(a) The Master Servicer may enter into Sub-Servicing
Agreements (provided that such agreements would not result in a withdrawal or a
downgrading by the Rating Agency of the rating on any Class of Certificates)
with Sub-Servicers, for the servicing and administration of the Mortgage Loans.
Each Sub-Servicer shall be (i) authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law to enable
the Sub-Servicer to perform its obligations hereunder and under the Sub-
Servicing Agreement, (ii) an institution approved as a mortgage loan originator
by the Federal Housing Administration or an institution the deposit accounts of
which are insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved
mortgage servicer. Each Sub-Servicing Agreement must impose on the Sub-Servicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Master Servicer will examine each Sub-Servicing Agreement and will be
familiar with the terms thereof. The terms of any Sub-Servicing Agreement will
not be inconsistent with any of the provisions of this Agreement. The Master
Servicer and the Sub-Servicers may enter into and make amendments to the
Sub-Servicing Agreements or enter into different forms of Sub-Servicing
Agreements; PROVIDED, HOWEVER, that any such amendments or different forms shall
be consistent with and not violate the provisions of this Agreement, and that no
such amendment or different form shall be made or entered into which could be
reasonably expected to be materially adverse to the interests of the
Certificateholders, without the consent of the Holders of Certificates entitled
to at least 66% of the Voting Rights. Any variation without the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Sub-Servicing Accounts, or credits and charges to the
Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Master Servicer, are conclusively deemed to be inconsistent
with this Agreement and therefore prohibited. The Master Servicer shall deliver
to the Trustee copies of all Sub-Servicing Agreements, and any amendments or
modifications thereof, promptly upon the Master Servicer's execution and
delivery of such instruments.
(b) As part of its servicing activities hereunder, the Master
Servicer (except as otherwise provided in the last sentence of this paragraph),
for the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement,
including, without limitation, any obligation to make advances in respect of
delinquent payments as required by a Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements, and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own
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expense, and shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement, to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loans, or (ii) from a
specific recovery of costs, expenses or attorneys' fees against the party
against whom such enforcement is directed.
(c) The parties hereto acknowledge that the Special Servicer
has been retained by the Master Servicer to service the Specially Serviced
Mortgage Loans pursuant to the Special Servicing Agreement. As compensation for
its services, the Special Servicer will be paid the Servicing Fee with respect
to each Specially Serviced Mortgage Loan. Notwithstanding anything in this
Section 3.02 to the contrary, the conditions governing the termination of the
Special Servicer shall be set forth in the Special Servicing Agreement. In the
event that Xxxxxx Loan Servicing LP is no longer the Special Servicer, and no
other Special Servicer is appointed pursuant to the Special Servicing Agreement,
the Master Servicer will serve in such capacity.
SECTION 3.03. Successor Sub-Servicers.
The Master Servicer shall be entitled to terminate any
Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Master Servicer without any act or deed on the part of
such Sub-Servicer or the Master Servicer, and the Master Servicer either shall
service directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02.
Except for the Special Servicing Agreement, any Sub-Servicing
Agreement shall include the provision that such agreement may be immediately
terminated by the Trustee without fee, in accordance with the terms of this
Agreement, in the event that the Master Servicer shall, for any reason, no
longer be the Master Servicer (including termination due to a Master Servicer
Event of Default).
SECTION 3.04. Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Master Servicer and a Sub-Servicer or reference to actions taken through a
Sub-Servicer or otherwise, the Master Servicer shall remain obligated and
primarily liable to the Trustee and the Certificateholders for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Sub-Servicing Agreements or arrangements or by virtue of indemnification from
the Sub-Servicer and to the same extent and under the same terms and conditions
as if the Master Servicer alone were servicing and administering the Mortgage
Loans. Notwithstanding the foregoing, the Special Servicing Agreement shall
require that the Special Servicer be primarily obligated and liable to the
Trustee and the Certificateholders for the servicing and administering of the
Specially Serviced Mortgage Loans and the Master Servicer shall have no
responsibility or liability therefor. The Master Servicer shall be entitled to
enter into
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any agreement with a Sub-Servicer for indemnification of the Master Servicer by
such Sub-Servicer and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification.
SECTION 3.05. No Contractual Relationship Between
Sub-Servicers and Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Master Servicer alone, and the Trustee and Certificateholders shall not be
deemed parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Sub-Servicer except as set forth in Section
3.06. The Master Servicer shall be solely liable for all fees owed by it to any
Sub-Servicer, irrespective of whether the Master Servicer's compensation
pursuant to this Agreement is sufficient to pay such fees.
SECTION 3.06. Assumption or Termination of Sub-Servicing
Agreements by Trustee.
In the event the Master Servicer shall for any reason no
longer be the master servicer (including by reason of the occurrence of a Master
Servicer Event of Default), the Trustee or its designee shall thereupon assume
all of the rights and obligations of the Master Servicer under each
Sub-Servicing Agreement that the Master Servicer may have entered into, unless
the Trustee elects to terminate any Sub-Servicing Agreement in accordance with
its terms as provided in Section 3.03. Upon such assumption, the Trustee, its
designee or the successor servicer for the Trustee appointed pursuant to Section
7.02 shall be deemed, subject to Section 3.03, to have assumed all of the Master
Servicer's interest therein and to have replaced the Master Servicer as a party
to each Sub-Servicing Agreement to the same extent as if each Sub-Servicing
Agreement had been assigned to the assuming party, except that (i) the Master
Servicer shall not thereby be relieved of any liability or obligations under any
Sub-Servicing Agreement and (ii) none of the Trustee, its designee or any
successor Master Servicer shall be deemed to have assumed any liability or
obligation of the Master Servicer that arose before it ceased to be the Master
Servicer.
The Master Servicer at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
each Sub-Servicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the Sub-
Servicing Agreements to the assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Master Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans,
and shall, to the extent such procedures shall be consistent with this
Agreement, the terms and provisions of any related Primary Mortgage Insurance
Policy and any applicable insurance policies, follow such collection procedures
as it would follow with respect to mortgage loans comparable to the Mortgage
Loans and held for its own account. Consistent with the foregoing, the Master
Servicer may in its discretion (i) waive any late payment charge or, if
applicable, penalty interest, only upon determining that the coverage of such
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Mortgage Loan by the related Primary Mortgage Insurance Policy, if any, will not
be affected, or (ii) extend the due dates for Monthly Payments due on a Mortgage
Note for a period of not greater than 180 days; provided that any extension
pursuant to clause (ii) above shall not affect the amortization schedule of any
Mortgage Loan for purposes of any computation hereunder, except as provided
below. In the event of any such arrangement pursuant to clause (ii) above, the
Master Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.03 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. Notwithstanding the foregoing, in the event that any Mortgage Loan
is in default or, in the judgment of the Master Servicer, such default is
reasonably foreseeable, the Master Servicer, consistent with the standards set
forth in Section 3.01, may also accept payment from the related Mortgagor of an
amount less than the Stated Principal Balance in final satisfaction of such
Mortgage Loan (such payment, a "Short Pay-off") or consent to the postponement
of strict compliance with any such term or otherwise grant indulgence to any
Mortgagor; PROVIDED, HOWEVER, that in determining which course of action
permitted by this sentence it shall pursue, the Master Servicer shall adhere to
the Loss Mitigation Procedures. The Master Servicer's analysis supporting any
forbearance and the conclusion that any forbearance meets the standards of
Section 3.01 shall be reflected in writing in the Mortgage File.
SECTION 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage
Loan pursuant to a Sub- Servicing Agreement, the Sub-Servicer will be required
to establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Agreement relating to the Collection
Account. The Sub-Servicer shall deposit in the clearing account (which account
must be an Eligible Account) in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than two Business Days after
the Sub-Servicer's receipt thereof, all proceeds of Mortgage Loans received by
the Sub- Servicer less its servicing compensation to the extent permitted by the
Sub-Servicing Agreement, and shall thereafter deposit such amounts in the
Sub-Servicing Account, in no event more than one Business Day after the deposit
of such funds into the clearing account. The Sub-Servicer shall thereafter
deposit such proceeds in the Collection Account or remit such proceeds to the
Master Servicer for deposit in the Collection Account not later than two
Business Days after the deposit of such amounts in the Sub-Servicing Account.
For purposes of this Agreement, the Master Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
SECTION 3.09. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
The Master Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), into which all collections from the
Mortgagors (or related advances from Sub-Servicers) for the payment of ground
rents, taxes, assessments, primary mortgage insurance premiums, fire and hazard
insurance premiums, water charges, sewer rents and comparable items for the
account of the Mortgagors ("Escrow Payments") shall be deposited and retained.
Servicing Accounts shall be Eligible Accounts. The Master Servicer shall deposit
in the clearing account
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(which account must be an Eligible Account) in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage loan
servicing activities on a daily basis, and in no event more than two Business
Days after the Master Servicer's receipt thereof, all Escrow Payments collected
on account of the Mortgage Loans and shall thereafter deposit such Escrow
Payments in the Servicing Accounts, in no event more than one Business Day after
the deposit of such funds in the clearing account, for the purpose of effecting
the payment of any such items as required under the terms of this Agreement.
Withdrawals of amounts from a Servicing Account may be made only to (i) effect
payment of Escrow Payments; (ii) reimburse the Master Servicer (or a
Sub-Servicer to the extent provided in the related Sub-Servicing Agreement) out
of related collections for any advances made pursuant to Section 3.01 (with
respect to taxes and assessments) and Section 3.14 (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on balances in the Servicing Account; (v) clear and terminate the Servicing
Account at the termination of the Master Servicer's obligations and
responsibilities in respect of the Mortgage Loans under this Agreement in
accordance with Article IX; or (vi) recover amounts deposited in error. As part
of its servicing duties, the Master Servicer or Sub-Servicers shall pay to the
Mortgagors interest on funds in Servicing Accounts, to the extent required by
law and, to the extent that interest earned on funds in the Servicing Accounts
is insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. To the extent that a Mortgage does not provide for
Escrow Payments, the Master Servicer shall determine whether any such payments
are made by the Mortgagor in a manner and at a time that avoids the loss of the
Mortgaged Property due to a tax sale or the foreclosure of a tax lien. The
Master Servicer assumes full responsibility for the payment of all such bills
and shall effect payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
SECTION 3.10. Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Master Servicer shall
establish and maintain one or more accounts (such account or accounts,
the "Collection Account"), held in trust for the benefit of the Trustee
and the Certificateholders. On behalf of the Trust Fund, the Master
Servicer shall deposit or cause to be deposited in the clearing account
(which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with
its mortgage loan servicing activities on a daily basis, and in no
event more than two Business Days after the Master Servicer's receipt
thereof, and shall thereafter deposit in the Collection Account, in no
event more than one Business Day after the deposit of such funds into
the clearing account, as and when received or as otherwise required
hereunder, the following payments and collections received or made by
it from and after the Cut-off Date (other than in respect of principal
or interest on the related Mortgage Loans due on or before the Cut-off
Date), or payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
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(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Liquidation Proceeds (other
than proceeds collected in respect of any particular REO Property and
amounts paid by the Master Servicer in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 9.01);
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Master
Servicer pursuant to the second paragraph of Section 3.14(a) in respect
of any blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or
purchased in accordance with Section 2.03 or Section 9.01; and
(vii) all amounts required to be deposited in connection with
shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Section 2.03.
For purposes of the immediately preceding sentence, the
Cut-off Date with respect to any Qualified Substitute Mortgage Loan shall be
deemed to be the date of substitution.
The foregoing requirements for deposit in the Collection
Accounts shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late payment
charges or assumption fees need not be deposited by the Master Servicer in the
Collection Account. In the event the Master Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish
and maintain one or more accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Certificateholders. On behalf of
the Trust Fund, the Master Servicer shall deliver to the Trustee in immediately
available funds for deposit in the Distribution Account on or before 12:00 p.m.
New York time (i) on the Master Servicer Remittance Date, that portion of the
Available Distribution Amount (calculated without regard to the references in
clause (2) of the definition thereof to amounts that may be withdrawn from the
Distribution Account) for the related Distribution Date then on deposit in the
Collection Account and the amount of any funds reimbursable to an Advancing
Person pursuant to Section 3.26, and (ii) on each Business Day as of the
commencement of which the balance on deposit in the Collection Account exceeds
$75,000 following any withdrawals pursuant to the next succeeding sentence, the
amount of such excess, but only if the Collection Account constitutes an
Eligible Account solely pursuant to clause (ii) of the definition of "Eligible
Account." If the balance on deposit in the Collection Account exceeds $75,000 as
of the commencement of business on any Business Day and the Collection Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of "Eligible Account,"
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the Master Servicer shall, on or before 3:00 p.m. New York time on such Business
Day, withdraw from the Collection Account any and all amounts payable or
reimbursable to the Depositor, the Master Servicer, the Trustee, the Seller or
any Sub-Servicer pursuant to Section 3.11 and shall pay such amounts to the
Persons entitled thereto.
(c) Funds in the Collection Account and the Distribution
Account may be invested in Permitted Investments in accordance with the
provisions set forth in Section 3.12. The Master Servicer shall give
notice to the Trustee and the Depositor of the location of the
Collection Account maintained by it when established and prior to any
change thereof. The Trustee shall give notice to the Master Servicer
and the Depositor of the location of the Distribution Account when
established and prior to any change thereof.
(d) Funds held in the Collection Account at any time may be
delivered by the Master Servicer to the Trustee for deposit in an
account (which may be the Distribution Account and must satisfy the
standards for the Distribution Account as set forth in the definition
thereof) and for all purposes of this Agreement shall be deemed to be a
part of the Collection Account; PROVIDED, HOWEVER, that the Trustee
shall have the sole authority to withdraw any funds held pursuant to
this subsection (d). In the event the Master Servicer shall deliver to
the Trustee for deposit in the Distribution Account any amount not
required to be deposited therein, it may at any time request that the
Trustee withdraw such amount from the Distribution Account and remit to
it any such amount, any provision herein to the contrary
notwithstanding. In addition, the Master Servicer shall deliver to the
Trustee from time to time for deposit, and upon written notification
from the Master Servicer, the Trustee shall so deposit, in the
Distribution Account:
(i) any P&I Advances, as required pursuant to Section 4.03,
unless delivered directly to the Trustee by an Advancing Person;
(ii) any amounts required to be deposited pursuant to Section
3.23(d) or (f) in connection with any REO Property;
(iii) any amounts to be paid by the Master Servicer in
connection with a purchase of Mortgage Loans and REO Properties
pursuant to Section 9.01; and
(iv) any amounts required to be deposited pursuant to Section
3.24 in connection with any Prepayment Interest Shortfalls.
(e) The Master Servicer shall deposit in the Collection
Account any amounts required to be deposited pursuant to Section
3.12(b) in connection with losses realized on Permitted Investments
with respect to funds held in the Collection Account.
SECTION 3.11. Withdrawals from the Collection Account and
Distribution Account.
(a) The Master Servicer shall, from time to time, make
withdrawals from the Collection Account for any of the following purposes or as
described in Section 4.03:
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(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so remitted pursuant to Section
3.10(b) or permitted to be so remitted pursuant to the first sentence
of Section 3.10(d);
(ii) subject to Section 3.16(d), to reimburse the Master
Servicer for P&I Advances, but only to the extent of amounts received
which represent Late Collections (net of the related Servicing Fees) of
Monthly Payments on Mortgage Loans with respect to which such P&I
Advances were made in accordance with the provisions of Section 4.03;
(iii) subject to Section 3.16(d), to pay the Master Servicer
or any Sub-Servicer (A) any unpaid Servicing Fees, (B) any unreimbursed
Servicing Advances with respect to each Mortgage Loan, but only to the
extent of any Liquidation Proceeds, Insurance Proceeds or other amounts
as may be collected by the Master Servicer from a Mortgagor, or
otherwise received with respect to such Mortgage Loan and (C) any
nonrecoverable Servicing Advances following the final liquidation of a
Mortgage Loan, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to
such Mortgage Loan are insufficient to reimburse the Master Servicer or
any Sub-Servicer for such Servicing Advances;
(iv) to pay to the Master Servicer as servicing compensation
(in addition to the Servicing Fee) on the Master Servicer Remittance
Date any interest or investment income earned on funds deposited in the
Collection Account;
(v) to pay to the Master Servicer, the Depositor or the
Seller, as the case may be, with respect to each Mortgage Loan that has
previously been purchased or replaced pursuant to Section 2.03 all
amounts received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to reimburse the Master Servicer for any P&I Advance
previously made which the Master Servicer has determined to be a
Nonrecoverable P&I Advance in accordance with the provisions of Section
4.03;
(vii) to reimburse the Master Servicer or the Depositor for
expenses incurred by or reimbursable to the Master Servicer or the
Depositor, as the case may be, pursuant to Section 6.03;
(viii) to reimburse the Master Servicer or the Trustee, as the
case may be, for expenses reasonably incurred in respect of the breach
or defect giving rise to the purchase obligation under Section 2.03 of
this Agreement that were included in the Purchase Price of the Mortgage
Loan, including any expenses arising out of the enforcement of the
purchase obligation;
(ix) to pay, or to reimburse the Master Servicer for advances
in respect of expenses incurred in connection with any Mortgage Loan
pursuant to Section 3.16(b); and
(x) to clear and terminate the Collection Account pursuant to
Section 9.01.
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The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection Account, to the extent held by or
on behalf of it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (viii) and
(ix) above. The Master Servicer shall provide written notification to the
Trustee, on or prior to the next succeeding Master Servicer Remittance Date,
upon making any withdrawals from the Collection Account pursuant to subclause
(vii) above.
(b) The Trustee shall, from time to time, make withdrawals
from the Distribution Account, for any of the following purposes,
without priority:
(i) to make distributions to Certificateholders in accordance
with Section 4.01;
(ii) to pay to itself amounts to which each is entitled
pursuant to Section 8.05 and any Extraordinary Trust Fund Expenses;
(iii) to pay itself any interest income earned on funds
deposited in the Distribution Account pursuant to Section 3.12(c);
(iv) to reimburse itself pursuant to Section 7.02 or pursuant
to Section 7.01 to the extent such amounts in Section 7.01 were not
reimbursed by the Master Servicer;
(v) to pay any amounts in respect of taxes pursuant to
10.01(g)(iii);
(vi) to pay to an Advancing Person reimbursements for P&I
Advances and/or Servicing Advances pursuant to Section 3.26;
(vii) to reimburse itself for any P&I Advance made by it under
Section 7.01 (if not reimbursed by the Master Servicer) to the same
extent the Master Servicer would be entitled to reimbursement under
Section 3.11(a); and
(viii) to clear and terminate the Distribution Account
pursuant to Section 9.01.
SECTION 3.12. Investment of Funds in the Collection Account
and the Distribution Account.
(a) The Master Servicer may direct any depository institution
maintaining the Collection Account (for purposes of this Section 3.12, an
"Investment Account"), and the Trustee, in its individual capacity, may direct
any depository institution maintaining the Distribution Account (for purposes of
this Section 3.12, also an "Investment Account"), to invest the funds in such
Investment Account in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, (i) no later than the
Business Day immediately preceding the date on which such funds are required to
be withdrawn from such account pursuant to this Agreement, if a Person other
than the Trustee is the obligor thereon, and (ii) no later than the date on
which such funds are required to be withdrawn from such account pursuant to this
Agreement, if the Trustee is the obligor thereon. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name
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of the Trustee (in its capacity as such) or in the name of a nominee of the
Trustee. The Trustee shall be entitled to sole possession (except with respect
to investment direction of funds held in the Collection Account and any income
and gain realized thereon) over each such investment, and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee or its nominee. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Trustee shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Trustee that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account, shall be for the benefit of the
Master Servicer or the Special Servicer, as applicable, and shall be
subject to its withdrawal in accordance with Section 3.11. The Master
Servicer or the Special Servicer, as applicable, shall deposit in the
Collection Account the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such
accounts immediately upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by or on behalf of the
Trustee, shall be for the benefit of the Trustee and shall be subject
to its withdrawal at any time. The Trustee shall deposit in the
Distribution Account, the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such
accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any
Permitted Investment, or if a default occurs in any other performance
required under any Permitted Investment, the Trustee may and, subject
to Section 8.01 and Section 8.02(a)(v), upon the request of the Holders
of Certificates representing more than 50% of the Voting Rights
allocated to any Class of Certificates, shall take such action as may
be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
SECTION 3.13. Maintenance of the Primary Mortgage Insurance
Policies; Collections Thereunder.
The Master Servicer will maintain or cause the related
Sub-Servicer, if any, to maintain in full force and effect, if required under
the Mortgage Loan Purchase Agreement and to the extent available, a Primary
Mortgage Insurance Policy with respect to each Mortgage Loan so insured as of
the Closing Date (or, in the case of a Qualified Substitute Mortgage Loan, on
the date of substitution). Such coverage will be maintained with respect to each
such Mortgage Loan for so
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long as it is outstanding, subject to any applicable laws or until the related
Loan-to-Value Ratio is reduced to less than or equal to 80% based on Mortgagor
payments. The Master Servicer shall cause the premium for each Primary Mortgage
Insurance Policy to be paid on a timely basis and shall pay such premium out of
its own funds if it is not otherwise paid. The Master Servicer or the related
Sub-Servicer, if any, will not cancel or refuse to renew any such Primary
Mortgage Insurance Policy in effect on the Closing Date (or, in the case of a
Qualified Substitute Mortgage Loan, on the date of substitution) that is
required to be kept in force under this Agreement unless a replacement Primary
Mortgage Insurance Policy for such canceled or non-renewed policy is obtained
from and maintained with a Qualified Insurer.
The Master Servicer shall not take, or permit any Sub-Servicer
to take, any action which would result in non-coverage under any applicable
Primary Mortgage Insurance Policy of any loss which, but for the actions of the
Master Servicer or Sub-Servicer, would have been covered thereunder. The Master
Servicer will comply in the performance of this Agreement with all reasonable
rules and requirements of each insurer under each Primary Mortgage Insurance
Policy. In connection with any assumption and modification agreement or
substitution of liability agreement entered into or to be entered into pursuant
to Section 3.15, the Master Servicer shall promptly notify the insurer under the
related Primary Mortgage Insurance Policy, if any, of such assumption in
accordance with the terms of such policies and shall take all actions which may
be required by such insurer as a condition to the continuation of coverage under
the Primary Mortgage Insurance Policy. If any such Primary Mortgage Insurance
Policy is terminated as a result of such assumption, the Master Servicer or the
related Sub-Servicer shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
In connection with its activities as administrator and
servicer of the Mortgage Loans, the Master Servicer agrees to prepare and
present, on behalf of itself, the Trustee and the Certificateholders, claims to
the insurer under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such policies and, in this regard, to take such
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Any amounts collected by
the Master Servicer under any Primary Mortgage Insurance Policy shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.11; and any amounts collected by the Master Servicer under any Primary
Mortgage Insurance Policy in respect of any REO Property shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 3.23. In those
cases in which a Mortgage Loan is serviced by a Sub-Servicer, the Sub-Servicer,
on behalf of itself, the Trustee, and the Certificateholders, will present
claims to the insurer under any Primary Mortgage Insurance Policy and all
collections thereunder shall be deposited initially in the Sub-Servicing
Account.
SECTION 3.14. Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the least of (i) the current
principal balance of such Mortgage Loan, (ii) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis and (iii) the maximum insurable value of
the improvements
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which are a part of such Mortgaged Property, in each case in an amount not less
than such amount as is necessary to avoid the application of any coinsurance
clause contained in the related hazard insurance policy. The Master Servicer
shall also cause to be maintained fire insurance with extended coverage on each
REO Property in an amount which is at least equal to the lesser of (i) the
maximum insurable value of the improvements which are a part of such property
and (ii) the outstanding principal balance of the related Mortgage Loan at the
time it became an REO Property, plus accrued interest at the Mortgage Rate and
related Servicing Advances. The Master Servicer will comply in the performance
of this Agreement with all reasonable rules and requirements of each insurer
under any such hazard policies. Any amounts to be collected by the Master
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Master Servicer would follow in servicing loans held for its own account,
subject to the terms and conditions of the related Mortgage and Mortgage Note)
shall be deposited in the Collection Account, subject to withdrawal pursuant to
Section 3.11, if received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.23, if received in respect of an REO
Property. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or other additional insurance is
to be required of any Mortgagor other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property or REO Property is at any time
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Master Servicer will
cause to be maintained a flood insurance policy in respect thereof. Such flood
insurance shall be in an amount equal to the lesser of (i) the unpaid principal
balance of the related Mortgage Loan and (ii) the maximum amount of such
insurance available for the related Mortgaged Property under the national flood
insurance program (assuming that the area in which such Mortgaged Property is
located is participating in such program).
In the event that the Master Servicer shall obtain and
maintain a blanket policy with an insurer having a General Policy Rating of B+:V
or better in Best's Key Rating Guide (or such other rating that is comparable to
such rating) insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first two sentences of this Section 3.14, it being understood and agreed
that such policy may contain a deductible clause, in which case the Master
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with the first two
sentences of this Section 3.14, and there shall have been one or more losses
which would have been covered by such policy, deposit to the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
prepare and present, on behalf of itself, the Trustee and Certificateholders,
claims under any such blanket policy in a timely fashion in accordance with the
terms of such policy.
(b) The Master Servicer shall keep in force during the term of
this Agreement a policy or policies of insurance covering errors and omissions
for failure in the performance of the Master Servicer's obligations under this
Agreement, which policy or policies shall be in such form
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and amount that would meet the requirements of Xxxxxx Xxx or Xxxxxxx Mac if it
were the purchaser of the Mortgage Loans, unless the Master Servicer has
obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx Mac. The
Master Servicer shall also maintain a fidelity bond in the form and amount that
would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless the Master
Servicer has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx
Mac. The Master Servicer shall provide the Trustee (upon the Trustee's
reasonable request) with copies of any such insurance policies and fidelity
bond. The Master Servicer shall be deemed to have complied with this provision
if an Affiliate of the Master Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Master Servicer. Any such
errors and omissions policy and fidelity bond shall by its terms not be
cancellable without thirty days' prior written notice to the Trustee. The Master
Servicer shall also cause each Sub-Servicer to maintain a policy of insurance
covering errors and omissions and a fidelity bond which would meet such
requirements.
SECTION 3.15. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of
any conveyance or prospective conveyance of any Mortgaged Property by any
Mortgagor (whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains or is to remain liable under the Mortgage Note and/or
the Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto; PROVIDED,
HOWEVER, that the Master Servicer shall not exercise any such rights if
prohibited by law from doing so. If the Master Servicer reasonably believes it
is unable under applicable law to enforce such "due-on-sale" clause, or if any
of the other conditions set forth in the proviso to the preceding sentence
apply, the Master Servicer will enter into an assumption and modification
agreement from or with the person to whom such property has been conveyed or is
proposed to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. The Master Servicer is also authorized to
enter into a substitution of liability agreement with such person, pursuant to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Master Servicer. In connection with
any assumption or substitution, the Master Servicer shall apply such
underwriting standards and follow such practices and procedures as shall be
normal and usual in its general mortgage servicing activities and as it applies
to other mortgage loans owned solely by it. The Master Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any hazard insurance policy, or a new
policy meeting the requirements of Section 3.14 is obtained. Any fee collected
by the Master Servicer in respect of an assumption or substitution of liability
agreement will be retained by the Master Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Monthly Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. The Master Servicer shall notify the
Trustee that any such substitution or assumption agreement has been completed by
forwarding to the Trustee the executed original of such substitution or
assumption agreement, which document shall be added to
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the related Mortgage File and shall, for all purposes, be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Master Servicer shall not be deemed to be in default,
breach or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or by the terms of the
Mortgage Note or any assumption which the Master Servicer may be restricted by
law from preventing, for any reason whatever. For purposes of this Section 3.15,
the term "assumption" is deemed to also include a sale (of the Mortgaged
Property) subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
SECTION 3.16. Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall, consistent with the servicing
standard set forth in Section 3.01, foreclose upon or otherwise
comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. The Master Servicer shall be
responsible for all costs and expenses incurred by it in any such
proceedings; PROVIDED, HOWEVER, that such costs and expenses will be
recoverable as Servicing Advances by the Master Servicer as
contemplated in Section 3.11 and Section 3.23. The foregoing is subject
to the provision that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Master Servicer shall
not be required to expend its own funds toward the restoration of such
property unless it shall determine in its discretion that such
restoration will increase the proceeds of liquidation of the related
Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section
3.16 or any other provision of this Agreement, with respect to any
Mortgage Loan as to which the Master Servicer has received actual
notice of, or has actual knowledge of, the presence of any toxic or
hazardous substance on the related Mortgaged Property, the Master
Servicer shall not, on behalf of the Trustee, either (i) obtain title
to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other
action with respect to, such Mortgaged Property, if, as a result of any
such action, the Trustee, the Trust Fund, the Master Servicer or the
Certificateholders would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended from time to time, or any comparable law, unless the Master
Servicer has also previously determined, based on its reasonable
judgment and a report prepared by a Person who regularly conducts
environmental audits using customary industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous
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wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required,
that it would be in the best economic interest of the Trust Fund to
take such actions with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by
this Section 3.23 shall be advanced by the Master Servicer, subject to the
Master Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.11(a)(ix), such right of reimbursement being prior to the
rights of Certificateholders to receive any amount in the Collection Account
received in respect of the affected Mortgage Loan or other Mortgage Loans.
If the Master Servicer determines, as described above, that it
is in the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum based materials affecting any such Mortgaged Property, then
the Master Servicer shall take, consistent with the servicing standard set forth
in Section 3.01, such action as it deems to be in the best economic interest of
the Trust Fund. The cost of any such compliance, containment, cleanup or
remediation shall be advanced by the Master Servicer, subject to the Master
Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.11(a)(ix), such right of reimbursement being prior to the
rights of Certificateholders to receive any amount in the Collection Account
received in respect of the affected Mortgage Loan or other Mortgage Loans.
(c) [Reserved].
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds, in respect of any Mortgage Loan,
will be applied in the following order of priority: first, to reimburse the
Master Servicer or any Sub-Servicer for any related unreimbursed Servicing
Advances and P&I Advances, pursuant to Section 3.11(a)(ii) or (a)(iii)(A) or
(B); second, to accrued and unpaid interest on the Mortgage Loan, to the date of
the Final Recovery Determination, or to the Due Date prior to the Distribution
Date on which such amounts are to be distributed if not in connection with a
Final Recovery Determination; and third, as a recovery of principal of the
Mortgage Loan. If the amount of the recovery so allocated to interest is less
than the full amount of accrued and unpaid interest due on such Mortgage Loan,
the amount of such recovery will be allocated by the Master Servicer as follows:
first, to unpaid Servicing Fees; and second, to the balance of the interest then
due and owing. The portion of the recovery so allocated to unpaid Servicing Fees
shall be reimbursed to the Master Servicer or any Sub-Servicer pursuant to
Section 3.11(a)(iii)(A).
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer or the Special Servicer, as the case may be, of a
notification that payment in full shall be
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escrowed in a manner customary for such purposes, the Master Servicer will
immediately notify the Trustee by delivery of two copies of a Request for
Release in the form of Exhibit E (which shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Collection Account pursuant to Section
3.10 have been or will be so deposited) of a Servicing Officer and shall request
delivery to it of the Mortgage File. Upon receipt of such copies of the Request
for Release, the Trustee shall promptly release the related Mortgage File to the
Master Servicer and the Master Servicer is authorized to cause the removal from
the registration on the MERS(R) System of any such Mortgage, if applicable,. If
a Mortgage Loan has been paid in full or liquidated, the Trustee may return the
related Mortgage File to the Master Servicer or the Special Servicer, as the
case may be, without receiving a Request for Release. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account or the Distribution Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Master Servicer or the Special Servicer, as the case may be, and
delivery to the Trustee of a Request for Release, release the related Mortgage
File to the Master Servicer or the Special Servicer, as the case may be, and the
Trustee shall, at the direction of the Master Servicer, execute such documents
as shall be necessary to the prosecution of any such proceedings. Such Request
for Release shall obligate the Master Servicer or the Special Servicer, as the
case may be, to return each and every Mortgage File to the Trustee when the need
therefor by the Master Servicer or the Special Servicer, as the case may be, no
longer exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Collection
Account or the Mortgage File or such document has been delivered to an attorney,
or to a public trustee or other public official as required by law, for purposes
of initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Master
Servicer or the Special Servicer, as the case may be, has delivered to the
Trustee a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. Upon receipt of two copies of a
new Request for Release stating that such Mortgage Loan was liquidated and that
all amounts received or to be received in connection with such liquidation that
are required to be deposited into the Collection Account have been so deposited,
or that such Mortgage Loan has become an REO Property, the related Mortgage File
shall not be required to be returned to the Trustee.
(c) Upon written certification of a Servicing Officer, the
Trustee shall execute and deliver to the Master Servicer or the Special
Servicer, as the case may be, any court pleadings, requests for trustee's sale
or other documents reasonably necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note or Mortgage or otherwise available at law or in equity. Each such
certification shall include a request that such pleadings or documents be
executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
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SECTION 3.18. Servicing Compensation.
As compensation for the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to the Servicing Fee with
respect to each Mortgage Loan payable solely from payments of interest in
respect of such Mortgage Loan, subject to Section 3.24. In addition, the Master
Servicer shall be entitled to recover unpaid Servicing Fees out of Insurance
Proceeds or Liquidation Proceeds to the extent permitted by Section
3.11(a)(iii)(A) and out of amounts derived from the operation and sale of an REO
Property to the extent permitted by Section 3.23. Except with respect to the
Special Servicer, the right to receive the Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement.
As compensation for its services, the Special Servicer will be
paid the Servicing Fee with respect to each Specially Serviced Mortgage Loan.
Additional servicing compensation in the form of assumption
fees, late payment charges and other similar fees and charges shall be retained
by the Master Servicer (subject to Section 3.24) only to the extent such fees or
charges are received by the Master Servicer. The Master Servicer shall also be
entitled pursuant to Section 3.11(a)(iv) to withdraw from the Collection
Account, and pursuant to Section 3.23(b) to withdraw from any REO Account, as
additional servicing compensation, interest or other income earned on deposits
therein, subject to Section 3.12 and Section 3.24. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including premiums due under the Primary Insurance
Policies, if any, premiums for the insurance required by Section 3.14, to the
extent such premiums are not paid by the related Mortgagors or by a
Sub-Servicer, servicing compensation of each Sub-Servicer, and to the extent
provided herein in Section 8.05, the fees and expenses of the Trustee) and shall
not be entitled to reimbursement therefor except as specifically provided
herein.
SECTION 3.19. Reports to the Trustee; Collection Account
Statements.
Not later than fifteen days after each Distribution Date, the
Master Servicer shall forward to the Trustee a statement prepared by the Master
Servicer setting forth the status of the Collection Account as of the close of
business on the last day of the calendar month relating to such Distribution
Date and showing, for the period covered by such statement, the aggregate amount
of deposits into and withdrawals from the Collection Account of each category of
deposit specified in Section 3.10(a) and each category of withdrawal specified
in Section 3.11. Such statement may be in the form of the then current Xxxxxx
Xxx Monthly Accounting Report for its Guaranteed Mortgage Pass-Through Program
with appropriate additions and changes, and shall also include information as to
the aggregate of the outstanding principal balances of all of the Mortgage Loans
as of the last day of the calendar month immediately preceding such Distribution
Date. Copies of such statement (and any comparable statement from the Special
Servicer) shall be provided by the Trustee to any Certificateholder and to any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon the request and at the expense of the requesting party, provided such
statement is delivered by the Master Servicer or the Special Servicer, as
applicable, to the Trustee.
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SECTION 3.20. Statement as to Compliance.
On or before March 15th of each calendar year commencing in
2005, the Master Servicer will deliver to the Trustee, the Depositor and the
Rating Agency, an Officers' Certificate (in the form attached hereto as Exhibit
I) stating, as to each signatory thereof, that (i) a review of the activities of
the Master Servicer during the preceding year and of performance under this
Agreement has been made under such officers' supervision and (ii) to the best of
such officers' knowledge, based on such review, the Master Servicer has
fulfilled all of its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. Copies of any such statement shall be provided by the Trustee to any
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon the request and at the expense of the
requesting party, provided that such statement is delivered by the Master
Servicer to the Trustee.
SECTION 3.21. Independent Public Accountants' Servicing
Report.
Not later than March 15th of each calendar year commencing in
2005, the Master Servicer, at its expense, shall cause a nationally recognized
firm of independent certified public accountants to furnish to the Master
Servicer a report stating that (i) it has obtained a letter of representation
regarding certain matters from the management of the Master Servicer which
includes an assertion that the Master Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of residential mortgage
loans during the most recently completed fiscal year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Sub- Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respect to those Sub-Servicers. Immediately upon receipt of such report,
the Master Servicer shall furnish a copy of such report to the Trustee, the
Depositor and the Rating Agency. Copies of such statement shall be provided by
the Trustee to any Certificateholder upon request at the Master Servicer's
expense, provided that such statement is delivered by the Master Servicer to the
Trustee. In the event such firm of independent certified public accountants
requires the Trustee to agree to the procedures performed by such firm, the
Master Servicer shall direct the Trustee in writing to so agree; it being
understood and agreed that the Trustee will deliver such letter of agreement in
conclusive reliance upon the direction of the Master Servicer, and the Trustee
has not made any independent inquiry or investigation as to, and shall have no
obligation or liability in respect of, the sufficiency, validity or correctness
of such procedures.
SECTION 3.22. Access to Certain Documentation.
The Master Servicer shall provide to the Office of the
Controller of the Currency, the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to the documentation
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regarding the Mortgage Loans required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Master Servicer designated by
it. In addition, access to the documentation regarding the Mortgage Loans
required by applicable laws and regulations will be provided to such
Certificateholder, the Trustee and to any Person identified to the Master
Servicer as a prospective transferee of a Certificate, upon reasonable request
during normal business hours at the offices of the Master Servicer designated by
it at the expense of the Person requesting such access.
SECTION 3.23. Title, Management and Disposition of REO
Property.
(a) The deed or certificate of sale of any REO Property shall
be taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. The Master Servicer, on behalf of the Trust Fund and
consistent with the servicing standard set forth in Section 3.01, shall either
sell any REO Property before the close of the third taxable year following the
year the Trust Fund acquires ownership of such REO Property for purposes of
Section 860G(a)(8) of the Code or request from the Internal Revenue Service, no
later than 60 days before the day on which the three- year grace period would
otherwise expire, an extension of the three-year grace period, unless the Master
Servicer shall have delivered to the Trustee and the Depositor an Opinion of
Counsel, addressed to the Trustee and the Depositor, to the effect that the
holding by the Trust Fund of such REO Property subsequent to three years after
its acquisition will not result in the imposition on REMIC I of taxes on
"prohibited transactions" thereof, as defined in Section 860F of the Code, or
cause REMIC I to fail to qualify as a REMIC under Federal law at any time that
any Certificates are outstanding. The Master Servicer shall, consistent with the
servicing standard set forth in Section 3.01, manage, conserve, protect and
operate each REO Property for the Certificateholders solely for the purpose of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by REMIC I of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code, or any "net income from foreclosure property" which is subject to
taxation under the REMIC Provisions.
(b) The Master Servicer shall segregate and hold all funds
collected and received in connection with the operation of any REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to REO Properties an account held in trust for the Trustee
for the benefit of the Certificateholders (the "REO Account"), which shall be an
Eligible Account. The Master Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to separate ledgers for each REO
Property. The Master Servicer shall be entitled to retain or withdraw any
interest income paid on funds deposited in the REO Account.
(c) The Master Servicer shall have full power and authority,
subject only to the servicing standard set forth in Section 3.01 and the
specific requirements and prohibitions of this Agreement, to do any and all
things in connection with any REO Property as are consistent with the manner in
which the Master Servicer manages and operates similar property owned by the
Master Servicer or any of its Affiliates, all on such terms and for such period
as the Master Servicer deems to be in the best interests of Certificateholders.
In connection therewith, the Master Servicer shall deposit, or cause to be
deposited in the clearing account (which account must be an Eligible Account) in
which it customarily deposits payments and collections on mortgage loans in
connection
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with its mortgage loan servicing activities on a daily basis, and in no event
more than two Business Days after the Master Servicer's receipt thereof, and
shall thereafter deposit in the REO Account, in no event more than one Business
Day after the deposit of such funds into the clearing account, all revenues
received by it with respect to an REO Property and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of such REO
Property including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with
respect to an REO Property are insufficient for the purposes set forth in
clauses (i) through (iii) above with respect to such REO Property, the Master
Servicer shall, consistent with the servicing standard set forth in Section
3.01, advance from its own funds such amount as is necessary for such purposes
if, but only if, the Master Servicer would make such advances if the Master
Servicer owned the REO Property and if in the Master Servicer's judgment, the
payment of such amounts will be recoverable from the rental or sale of the REO
Property.
Notwithstanding the foregoing, none of the Master Servicer or
the Trustee shall:
(i) authorize the Trust Fund to enter into, renew or extend
any New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such building
or other improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the
Trust Fund; unless, in any such case, the Master Servicer has obtained
an Opinion of Counsel, provided to the Trustee, to the effect that such
action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the
Code at any time that it is held by the Trust Fund, in which case the
Master Servicer may take such actions as are specified in such Opinion
of Counsel.
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The Master Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues
(net of such costs and expenses) to the Master Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.23(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Master Servicer of any of its
duties and obligations to the Trustee on behalf of the
Certificateholders with respect to the operation and management of any
such REO Property; and
(iv) the Master Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
The Master Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for it related to
its duties and obligations hereunder for indemnification of the Master Servicer
by such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. The Master Servicer shall be solely liable
for all fees owed by it to any such Independent Contractor, irrespective of
whether the Master Servicer's compensation pursuant to Section 3.18 is
sufficient to pay such fees.
(d) In addition to the withdrawals permitted under Section
3.23(c), the Master Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself or any Sub-Servicer unpaid
Servicing Fees in respect of the related Mortgage Loan; and (ii) to reimburse
itself or any Sub-Servicer for unreimbursed Servicing Advances and P&I Advances
made in respect of such REO Property or the related Mortgage Loan. Any income
from the related REO Property received during any calendar months prior to a
Final Recovery Determination, net of any withdrawals made pursuant to Section
3.23(c) or this Section 3.23(d), shall be withdrawn by the Master Servicer from
each REO Account maintained by it and deposited into the Distribution Account in
accordance with Section 3.10(d)(ii) on the Master Servicer Remittance Date
relating to a Final Recovery Determination with respect to such Mortgage Loan,
for distribution on the related Distribution Date in accordance with Section
4.01.
(e) Subject to the time constraints set forth in Section
3.23(a) and consistent with the servicing standard set forth in Section 3.01,
each REO Disposition shall be carried out by the Master Servicer at such price
and upon such terms and conditions as the Master Servicer shall deem
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necessary or advisable, as shall be normal and usual in its general servicing
activities for similar properties.
(f) The proceeds from the REO Disposition, net of any amount
required by law to be remitted to the Mortgagor under the related Mortgage Loan
and net of any payment or reimbursement to the Master Servicer or any
Sub-Servicer as provided above, shall be deposited in the Distribution Account
in accordance with Section 3.10(d)(ii) on the Master Servicer Remittance Date in
the month following the receipt thereof for distribution on the related
Distribution Date in accordance with Section 4.01. Any REO Disposition shall be
for cash only (unless changes in the REMIC Provisions made subsequent to the
Startup Day allow a sale for other consideration).
(g) The Master Servicer shall file information returns with
respect to the receipt of mortgage interest received in a trade or business,
reports of foreclosures and abandonments of any Mortgaged Property and
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code, respectively. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
SECTION 3.24. Obligations of the Master Servicer in Respect of
Prepayment Interest Shortfalls.
The Master Servicer shall deliver to the Trustee for deposit
into the Distribution Account on or before 12:00 p.m. New York time on the
Master Servicer Remittance Date from its own funds an amount equal to the lesser
of (i) the aggregate of the Prepayment Interest Shortfalls for the related
Distribution Date resulting from full or partial Principal Prepayments during
the related Prepayment Period and (ii) (A) the amount of the aggregate Servicing
Fee paid to the Master Servicer and the Special Servicer for the most recently
ended calendar month, minus (B) Compensating Interest paid by the Special
Servicer pursuant to the Special Servicing Agreement for the related
Distribution Date.
SECTION 3.25. Obligations of the Master Servicer in Respect of
Monthly Payments.
In the event that a shortfall in any collection on or
liability with respect to any Mortgage Loan results from or is attributable to
adjustments to Stated Principal Balances that were made by the Master Servicer
in a manner not consistent with the terms of the related Mortgage Note and this
Agreement, the Master Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Trustee for deposit in the Distribution Account
from its own funds the amount of any such shortfall and shall indemnify and hold
harmless the Trust Fund, the Trustee, the Depositor and any successor master
servicer in respect of any such liability. Such indemnities shall survive the
termination or discharge of this Agreement.
SECTION 3.26. Advance Facility.
(a) Either (i) the Master Servicer or (ii) the Trustee, on
behalf of the Trust Fund, with the consent of the Master Servicer, is hereby
authorized to enter into a facility with any Person
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which provides that such Person (an "Advancing Person") may fund P&I Advances
and/or Servicing Advances to the Trust Fund under this Agreement, although no
such facility shall reduce or otherwise affect the Master Servicer's obligation
to fund such P&I Advances and/or Servicing Advances. If the Master Servicer
enters into such an Advance Facility pursuant to this Section 3.26, upon
reasonable request of the Advancing Person, the Trustee shall execute a letter
of acknowledgment, confirming its receipt of notice of the existence of such
Advance Facility. If the Trustee enters into such an Advance Facility pursuant
to this Section 3.26, the Master Servicer shall also be a party to such Advance
Facility. To the extent that an Advancing Person funds any P&I Advance or any
Servicing Advance and provides the Trustee with notice acknowledged by the
Master Servicer that such Advancing Person is entitled to reimbursement, such
Advancing Person shall be entitled to receive reimbursement pursuant to this
Agreement for such amount to the extent provided in Section 3.26(b). Such notice
from the Advancing Person must specify the amount of the reimbursement, the
Section of this Agreement that permits the applicable P&I Advance or Servicing
Advance to be reimbursed and the section(s) of the Advance Facility that entitle
the Advancing Person to request reimbursement from the Trustee, rather than the
Master Servicer, and include the Master Servicer's acknowledgment thereto or
proof of an Event of Default under the Advance Facility. The Trustee shall have
no duty or liability with respect to any calculation of any reimbursement to be
paid to an Advancing Person and shall be entitled to rely without independent
investigation on the Advancing Person's notice provided pursuant to this Section
3.26. An Advancing Person whose obligations hereunder are limited to the funding
of P&I Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Master Servicer or a Sub- Servicer pursuant to Section 3.02
hereof and will not be deemed to be a Sub-Servicer under this Agreement.
(b) If an advancing facility is entered into, then the Master
Servicer shall not be permitted to reimburse itself therefor under Section
3.11(a)(ii), Section 3.11(a)(iii) and Section 3.11(a)(vi) prior to the
remittance to the Trust Fund, but instead the Master Servicer shall include such
amounts in the applicable remittance to the Trustee made pursuant to Section
3.11(a). The Trustee is hereby authorized to pay to the Advancing Person,
reimbursements for P&I Advances and Servicing Advances from the Distribution
Account to the same extent the Master Servicer would have been permitted to
reimburse itself for such P&I Advances and/or Servicing Advances in accordance
with Section 3.11(a)(ii), Section 3.11(a)(iii) and Section 3.11(a)(vi), as the
case may be, had the Master Servicer itself funded such P&I Advance or Servicing
Advance. The Trustee is hereby authorized to pay directly to the Advancing
Person such portion of the Servicing Fee as the parties to any advancing
facility agree in writing.
(c) All P&I Advances and Servicing Advances made pursuant to
the terms of this Agreement shall be deemed made and shall be reimbursed on a
"first in-first out" (FIFO) basis.
(d) Any amendment to this Section 3.26 or to any other
provision of this Agreement that may be necessary or appropriate to effect the
terms of an Advance Facility as described generally in this Section 3.26,
including amendments to add provisions relating to a successor master servicer,
may be entered into by the Trustee and the Master Servicer without the consent
of any Certificateholder, notwithstanding anything to the contrary in this
Agreement.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a)(1) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account an amount equal to the Available Distribution
Amount and distribute the following amounts, in the following order of priority
to the related Class or Classes from the related Available Distribution Amount:
(i) concurrently, to the Holders of the related Class A
Certificates and the related Class XS Certificates, and on the first
Distribution Date from the Subgroup IIA-1 Available Distribution Amount to the
Class R Certificates, the Interest Distribution Amount for each such Class for
such Distribution Date, on a PRO RATA basis based on the entitlement of each
such Class to such interest in an aggregate amount equal to the Senior Interest
Distribution Amount;
(ii) concurrently, (A) to the Holders of the Class PO-1
Certificates, to the extent of the Class PO Principal Distribution Amount for
such Class of Certificates, in reduction of the Certificate Principal Balance of
such Class, until the Certificate Principal Balance of such Class has been
reduced to zero, (B) to the Holders of the Class PO-2 Certificates, to the
extent of the Class PO Principal Distribution Amount for such Class of
Certificates, in reduction of the Certificate Principal Balance of such Class,
until the Certificate Principal Balance of such Class has been reduced to zero,
(C) to the Holders of the Class PO-3 Certificates, to the extent of the Class PO
Principal Distribution Amount for such Class of Certificates, in reduction of
the Certificate Principal Balance of such Class, until the Certificate Principal
Balance of such Class has been reduced to zero, and (D) to the Holders of the
Class PO-4 Certificates, to the extent of the Class PO Principal Distribution
Amount for such Class of Certificates, in reduction of the Certificate Principal
Balance of such Class, until the Certificate Principal Balance of such Class has
been reduced to zero;
(iii) concurrently, (A) to the Holders of the Class IA-1
Certificates, to the extent of the Senior Principal Distribution Amount for such
Certificates, in reduction of the Certificate Principal Balance thereof, until
the Certificate Principal Balance of such Class has been reduced to zero, (B) to
the Holders of the Class IA-2 Certificates, to the extent of the Senior
Principal Distribution Amount for such Certificates, in reduction of the
Certificate Principal Balance thereof, until the Certificate Principal Balance
of such Class has been reduced to zero, (C) to the Holders of the Class IA-3
Certificates, to the extent of the Senior Principal Distribution Amount for such
Certificates, in reduction of the Certificate Principal Balance thereof, until
the Certificate Principal Balance of such Class has been reduced to zero, (D) to
the Holders of the Class IIA-1 Certificates and, with respect to the first
Distribution Date only, the Class R Certificates, to the extent of the Senior
Principal Distribution Amount for such Certificates, in reduction of the
Certificate Principal Balances thereof, until the Certificate Principal Balance
of each such Class has been reduced to zero, (E) to the Holders of the Class
IIA-2 Certificates, to the extent of the Senior Principal Distribution Amount
for such Certificates, in reduction of the Certificate Principal Balance
thereof, until the Certificate Principal Balance of such Class has been reduced
to zero, (F) to the Holders of the Class IIA-3 Certificates, to the extent of
the Senior Principal Distribution Amount for such Certificates,
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in reduction of the Certificate Principal Balance thereof, until the Certificate
Principal Balance of such Class has been reduced to zero, (G) to the Holders of
the Class IIIA-1 Certificates, to the extent of the Senior Principal
Distribution Amount for such Certificates, in reduction of the Certificate
Principal Balance thereof, until the Certificate Principal Balance of such Class
has been reduced to zero, (H) to the Holders of the Class IIIA-2 Certificates,
to the extent of the Senior Principal Distribution Amount for such Certificates,
in reduction of the Certificate Principal Balance thereof, until the Certificate
Principal Balance of such Class has been reduced to zero, and (I) to the Holders
of the Class IVA-1 Certificates, to the extent of the Senior Principal
Distribution Amount for such Certificates, in reduction of the Certificate
Principal Balance thereof, until the Certificate Principal Balance of such Class
has been reduced to zero;
(iv) to the Holders of the Subordinate Certificates (other
than the Class of Subordinate Certificates with the highest numerical
designation then outstanding), the Interest Distribution Amount for each such
Class for such Distribution Date, distributable in the order of priority from
the Class of Subordinate Certificates with the lowest numerical designation to
the Class of Subordinate Certificates with the highest numerical designation;
(v) concurrently, (A) to the Holders of the Class PO-1
Certificates, in reduction of the Certificate Principal Balance of such Class,
in an amount equal to the excess, if any, of the Class PO-1 Percentage of the
Stated Principal Balance of each Class PO Mortgage Loan as to which a Final
Liquidation has occurred, over the amount distributed in respect of such Class
PO Mortgage Loan to the Class PO-1 Certificates pursuant to clause (ii) above,
(B) to the Holders of the Class PO- 2 Certificates, in reduction of the
Certificate Principal Balance of such Class, in an amount equal to the excess,
if any, of the Class PO-2 Percentage of the Stated Principal Balance of each
Class PO Mortgage Loan as to which a Final Liquidation has occurred, over the
amount distributed in respect of such Class PO Mortgage Loan to the Class PO-2
Certificates pursuant to clause (ii) above, (C) to the Holders of the Class PO-3
Certificates, in reduction of the Certificate Principal Balance of such Class,
in an amount equal to the excess, if any, of the Class PO-3 Percentage of the
Stated Principal Balance of each Class PO Mortgage Loan as to which a Final
Liquidation has occurred, over the amount distributed in respect of such Class
PO Mortgage Loan to the Class PO-3 Certificates pursuant to clause (ii) above,
and (D) to the Holders of the Class PO-4 Certificates, in reduction of the
Certificate Principal Balance of such Class, in an amount equal to the excess,
if any, of the Class PO-4 Percentage of the Stated Principal Balance of each
Class PO Mortgage Loan as to which a Final Liquidation has occurred, over the
amount distributed in respect of such Class PO Mortgage Loan to the Class PO-4
Certificates pursuant to clause (ii) above;
(vi) to the Holders of the Subordinate Certificates of the
Class with the highest numerical designation then outstanding, the Interest
Distribution Amount for such Class for such Distribution Date;
(vii) to the Holders of the Subordinate Certificates, an
aggregate amount equal to the Subordinate Principal Distribution Amount for such
Distribution Date, allocable among the Classes of Subordinate Certificates in
reduction of the Certificate Principal Balances thereof PRO RATA in accordance
with the respective amounts payable as to each such Class pursuant to the
priorities and amounts set forth in Section 4.01(b)(i);
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(viii) to the Excess Diverted Interest Reserve Account, the
Excess Diverted Interest Reserve Amount, if any; and
(ix) to the Holders of the Class R Certificates, any remaining
amounts.
Immediately prior to the distributions to the Holders of the
Certificates on each Distribution Date, any adjustments to the Certificate
Principal Balances of the Certificates required by this paragraph shall be made.
An amount equal to the lesser of (x) the amount of Subsequent Recoveries
included in the Available Funds for such Distribution Date and (y) the aggregate
amount of related Realized Losses, other than Excess Bankruptcy Losses, Excess
Fraud Losses, Excess Special Hazard Losses and Extraordinary Losses, previously
allocated to the Certificates and that remain "outstanding" as set forth below
shall be applied as follows: first, to increase the Certificate Principal
Balance of the Class of Certificates with the highest payment priority to which
such Realized Losses were previously allocated, to the extent of any such
Realized Losses previously allocated to such Class and remaining "outstanding";
second, to increase the Certificate Principal Balance of the Class of
Certificates with the next highest payment priority to which such Realized
Losses were previously allocated, to the extent of any such Realized Losses
previously allocated to such Class and remaining "outstanding"; and so forth.
For purposes of the foregoing, with respect to any Class of Certificates, the
amount of previously allocated Realized Losses that have been offset by an
increase in Certificate Principal Balance as provided above shall be deemed no
longer "outstanding" but not by more than the amount of Realized Losses
previously allocated to that Class of Certificates pursuant to Section 4.04.
Holders of any Class of Certificates with respect to which there shall have been
a Certificate Principal Balance increase pursuant to this paragraph will not be
entitled to any distribution in respect of interest on the amount of such
increase for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(2) Notwithstanding the foregoing clauses (iii) and (vii) of
Section 4.01(a)(1), if on any Distribution Date any of Subgroup IA-1, Subgroup
IA-2, Subgroup IA-3, Subgroup IIA-1, Subgroup IIA-2, Subgroup IIA-3, Subgroup
IIIA-1, Subgroup IIIA-2 or Loan Group IV is an Undercollateralized Subgroup and
the other such Subgroup or Subgroups is an Overcollateralized Subgroup, then the
Available Distribution Amount for the Subgroup or Subgroups related to the
Overcollateralized Subgroup or Subgroups, to the extent remaining following
distributions of interest and principal to the related Senior Certificates
pursuant to Section 4.01(a)(1)(i)-(iii) above, as applicable, shall be paid in
the following priority: (1) first, to the Senior Certificates related to each
Undercollateralized Subgroup pro rata, based on the Undercollateralized Amount
for each such Undercollateralized Subgroup, until such Undercollateralized
Amounts are reduced to zero; and (2) second, to the Subordinate Certificates, as
principal distributed pursuant to Section 4.01(a)(1) above.
(3) All references above to the Certificate Principal Balance
of any Class of Certificates shall be to the Certificate Principal Balance of
such Class prior to the allocation of Extraordinary Trust Fund Expenses and
Realized Losses, in each case allocated to such Class of Certificates, on such
Distribution Date pursuant to Section 4.04.
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(b)(i) On each Distribution Date, the aggregate distributions
of principal made on such date in respect of the Subordinate Certificates
pursuant to Section 4.01(a)(1)(vii) above shall be applied among the various
Classes thereof, in the order of priority from the Class of Subordinate
Certificates with the lowest numerical designation to the Class of Subordinate
Certificates with the highest numerical designation, in each case to the extent
of remaining available funds up to the amount allocable to such Class for such
Distribution Date and in each case until the Certificate Principal Balance of
each such Class is reduced to zero, in an amount with respect to each such Class
equal to the sum of (X) the related Class B Percentage of the amounts described
in clauses (i) through (v) of clause (a) of the definition of Subordinate
Principal Distribution Amount, (Y) the portion of the amounts described in
clauses (b) and (c) of the definition of Subordinate Principal Distribution
Amount allocable to such Class pursuant to Section 4.01(b)(ii) below and (Z) the
excess, if any, of the amount required to be distributed to such Class pursuant
to this Section 4.01(b)(i) for the immediately preceding Distribution Date, over
the aggregate distributions of principal made in respect of such Class of
Certificates on such immediately preceding Distribution Date pursuant to Section
4.01 to the extent that any such excess is not attributable to Realized Losses
which were allocated to Subordinate Certificates with a lower priority pursuant
to Section 4.04.
(ii) On any Distribution Date, the portion of (a) all net
Liquidation Proceeds and Insurance Proceeds with respect to any Mortgage Loans
that were the subject of a Final Recovery Determination in the related
Prepayment Period and (b) all Principal Prepayments received in respect of the
Mortgage Loans in the related Prepayment Period, allocable to principal and not
included in the Senior Principal Distribution Amount and the Class PO Principal
Distribution Amount, will be allocated on a PRO RATA basis among the following
Classes of Subordinate Certificates (each, an "Eligible Class") in proportion to
the respective outstanding Certificate Principal Balances thereof: (i) the Class
B-1 Certificates (or if the Certificate Principal Balance of the Class B-1
Certificates has been reduced to zero, the Class of Subordinate Certificates
outstanding with the lowest numerical designation, in which case the next
applicable clause below will be the clause following the clause relating to such
outstanding class of Subordinate Certificates), (ii) the Class B-2 Certificates,
if on such Distribution Date the aggregate percentage interest in the Trust Fund
evidenced by the Class B-2 Certificates, the Class B-3 Certificates, the Class
B-4 Certificates, the Class B-5 Certificates and the Class B-6 Certificates
equals or exceeds 2.95% before giving effect to distributions on such
Distribution Date, (iii) the Class B-3 Certificates, if on such Distribution
Date the aggregate percentage interest in the Trust Fund evidenced by the Class
B-3 Certificates, the Class B-4 Certificates, the Class B-5 Certificates and the
Class B-6 Certificates equals or exceeds 1.90% before giving effect to
distributions on such Distribution Date, (iv) the Class B-4 Certificates, if on
such Distribution Date the aggregate percentage interest in the Trust Fund
evidenced by the Class B-4 Certificates, the Class B-5 Certificates and the
Class B-6 Certificates equals or exceeds 1.25% before giving effect to
distributions on such Distribution Date, (v) the Class B-5 Certificates, if on
such Distribution Date the aggregate percentage interest in the Trust Fund
evidenced by the Class B-5 Certificates and the Class B-6 Certificates equals or
exceeds 0.90% before giving effect to distributions on such Distribution Date
and (vi) the Class B-6 Certificates, if on such Distribution Date the percentage
interest in the Trust Fund evidenced by the Class B-6 Certificates equals or
exceeds 0.60% before giving effect to distributions on such Distribution Date.
Notwithstanding the foregoing, if the application of the foregoing on any
Distribution Date as provided in Section 4.01 would result in a distribution in
respect of principal to any Class or Classes of Subordinate Certificates in an
amount greater than the remaining Certificate Principal Balance thereof (any
such
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Class, a "Maturing Class") then: (a) the amount to be allocated to each Maturing
Class shall be reduced to a level that, when applied as described above, would
exactly reduce the Certificate Principal Balance of such Class to zero and (b)
the total amount of the reductions pursuant to clause (a) above in the amount to
be allocated to the Maturing Class or Classes shall be allocated among the
remaining Eligible Classes on a PRO RATA basis in proportion to the respective
outstanding Certificate Principal Balances thereof prior to the allocation
thereto of any of the amounts described in the preceding sentence. Furthermore,
if a Class of Subordinate Certificates is not an Eligible Class, any amounts
allocable to principal and distributable pursuant to this Section 4.01(b)(ii)
will be distributed among the Classes of Subordinate Certificates that are
Eligible Classes in the manner set forth above.
(c) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated PRO RATA among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date will be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section 9.01
respecting the final distribution on such Class), based on the aggregate
Percentage Interest represented by their respective Certificates, and shall be
made by wire transfer of immediately available funds to the account of any such
Holder at a bank or other entity having appropriate facilities therefor, if such
Holder shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of such Holder
appearing in the Certificate Register. The final distribution on each
Certificate will be made in like manner, but only upon presentment and surrender
of such Certificate at the Corporate Trust Office or such other location
specified in the notice to Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Depositor
or the Master Servicer shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(d) The rights of the Certificateholders to receive
distributions in respect of the Certificates, and all interests of the
Certificateholders in such distributions, shall be as set forth in this
Agreement. None of the Holders of any Class of Certificates, the Trustee or the
Master Servicer shall in any way be responsible or liable to the Holders of any
other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(e) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall, no
later than five days after the related Determination Date, mail on such date to
each Holder of such Class of Certificates a notice to the effect that:
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(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date, but only upon presentation and surrender of such Certificates at
the office of the Trustee therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the related Interest Accrual Period.
Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held in trust by the Trustee and credited to the account of the
appropriate nontendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 4.01(e) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non- tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee shall, directly or through an agent, mail a final
notice to remaining non-tendering Certificateholders concerning surrender of
their Certificates and shall continue to hold any remaining funds for the
benefit of non-tendering Certificateholders. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in such trust fund. If within one year after
the final notice any such Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to Citigroup Global Markets Inc. all such
amounts, and all rights of non-tendering Certificateholders in or to such
amounts shall thereupon cease. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(e).
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date, based, as applicable, on
information provided to it by the Master Servicer and the Special Servicer, the
Trustee shall prepare and make available to each Holder of the Regular
Certificates, the Master Servicer, the Special Servicer and the Rating Agencies,
a statement as to the distributions to be made on such Distribution Date
containing the following information:
(i) the amount of the distribution made on such Distribution
Date to the Holders of Certificates of each such Class allocable to
principal;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of Certificates of each such Class allocable to
interest;
(iii) the aggregate amount of servicing compensation received
by the Master Servicer in respect of related Due Period and such other
customary information as the Trustee deems necessary or desirable, or
which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
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(iv) the aggregate amount of P&I Advances for each Loan Group
for such Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage
Loans and any REO Properties in each Loan Group at the close of
business on such Distribution Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans in each Loan Group as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of
Mortgage Loans in each Loan Group that are (a) delinquent 30 to 59
days, (b) delinquent 60 to 89 days, (c) delinquent 90 or more days in
each case, as of the last day of the preceding calendar month, (d) as
to which foreclosure proceedings have been commenced and (e) with
respect to which the related Mortgagor has filed for protection under
applicable bankruptcy laws, with respect to whom bankruptcy proceedings
are pending or with respect to whom bankruptcy protection is in force;
(viii) with respect to any Mortgage Loan in either Loan Group
that became an REO Property during the preceding calendar month, the
loan number of such Mortgage Loan, the unpaid principal balance and the
Stated Principal Balance of such Mortgage Loan as of the date it became
an REO Property;
(ix) the book value and the Stated Principal Balance of any
REO Property as of the close of business on the last Business Day of
the calendar month preceding the Distribution Date;
(x) the aggregate amount of Principal Prepayments made during
the related Prepayment Period;
(xi) the aggregate amount of Realized Losses with respect to
the Mortgage Loans in each Loan Group incurred during the related
Prepayment Period (or, in the case of Bankruptcy Losses allocable to
interest, in respect of the related Due Period), separately identifying
whether such Realized Losses constituted Fraud Losses, Special Hazard
Losses or Bankruptcy Losses;
(xii) the aggregate amount of Extraordinary Trust Fund
Expenses withdrawn from the Collection Account or the Distribution
Account for such Distribution Date;
(xiii) the aggregate Certificate Principal Balance or Notional
Amount of each such Class of Certificates, after giving effect to the
distributions, and allocations of Realized Losses and Extraordinary
Trust Fund Expenses, made on such Distribution Date, separately
identifying any reduction thereof due to allocations of Realized Losses
and Extraordinary Trust Fund Expenses;
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(xiv) the Certificate Factor for each such Class of
Certificates applicable to such Distribution Date;
(xv) the Interest Distribution Amount in respect of each such
Class of Certificates (other than the Class PO Certificates) for such
Distribution Date (separately identifying any reductions in the case of
Subordinate Certificates resulting from the allocation of Realized
Losses allocable to interest and Extraordinary Trust Fund Expenses on
such Distribution Date) and the respective portions thereof, if any,
remaining unpaid following the distributions made in respect of such
Certificates on such Distribution Date;
(xvi) the aggregate amount of any Prepayment Interest
Shortfalls for such Distribution Date, to the extent not covered by
payments by the Master Servicer pursuant to Section 3.24 and the
aggregate amount of any Prepayment Interest Excess for such
Distribution Date;
(xvii) the aggregate amount of Relief Act Interest Shortfalls
for such Distribution Date;
(xviii) the then-applicable Bankruptcy Amount, Fraud Loss
Amount, and Special Hazard Amount;
(xix) the Weighted Average Stripped Interest Rate with respect
to each Loan Group for such Distribution Date;
(xx) with respect to any Mortgage Loan as to which foreclosure
proceedings have been concluded, the loan number and unpaid principal
balance of such Mortgage Loan as of the date of such conclusion of
foreclosure proceedings; and
(xxi) the number of Mortgage Loans, the unpaid principal
balance of such Mortgage Loans as of the date of such Final Liquidation
and the amount of proceeds (including Liquidation Proceeds and
Insurance Proceeds) collected in respect of such Mortgage Loans.
The Trustee will make such statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to Certificateholders, the Master Servicer and the Rating
Agencies via the Trustee's internet website. The Trustee's internet website
shall initially be located at "xxx.xxxxxx.xxx/xxx". Assistance in using the
website can be obtained by calling the Trustee's customer service desk at (800)
934-6802. Parties that are unable to use the above distribution options are
entitled to have a paper copy mailed to them via first class mail by calling the
customer service desk and indicating such. The Trustee shall have the right to
change the way such statements are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes.
In the case of information furnished pursuant to subclauses
(i) through (iii) above, the amounts shall be expressed as a dollar amount per
Single Certificate of the relevant Class.
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Within a reasonable period of time after the end of each
calendar year, the Trustee shall forward, upon written request, to each Person
who at any time during the calendar year was a Holder of a Regular Certificate a
statement containing the information set forth in subclauses (i) through (iii)
above, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
On each Distribution Date, the Trustee shall make available to
the Depositor, each Holder of a Residual Certificate and the Master Servicer, a
copy of the reports forwarded to the Regular Certificateholders on such
Distribution Date and a statement setting forth the amounts, if any, actually
distributed with respect to the Residual Certificates, respectively, on such
Distribution Date.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall forward to each Person who at any time during
the calendar year was a Holder of a Residual Certificate a statement setting
forth the amount, if any, actually distributed with respect to the Residual
Certificates, as appropriate, aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be prepared by the Trustee and
furnished to such Holders pursuant to the rules and regulations of the Code as
are in force from time to time.
Upon request, the Trustee shall forward to each
Certificateholder, during the term of this Agreement, such periodic, special, or
other reports or information, whether or not provided for herein, as shall be
reasonable with respect to the Certificateholder, or otherwise with respect to
the purposes of this Agreement, all such reports or information to be provided
at the expense of the Certificateholder in accordance with such reasonable and
explicit instructions and directions as the Certificateholder may provide. For
purposes of this Section 4.02, the Trustee's duties are limited to the extent
that the Trustee receives timely reports, including Remittance Reports, as
required from the Master Servicer and the Special Servicer.
On each Distribution Date, the Trustee shall make available to
Bloomberg Financial Markets, L.P. ("Bloomberg") cusip level factors for each
class of Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Trustee and Bloomberg.
SECTION 4.03. Remittance Reports; P&I Advances.
(a) On the second Business Day following each Determination
Date, the Master Servicer shall deliver to the Trustee by telecopy (or by such
other means as the Master Servicer and the Trustee may agree from time to time)
a Remittance Report with respect to the related Distribution Date. Such
Remittance Report will include (i) the amount of P&I Advances to be made by the
Master Servicer in respect of the related Distribution Date, the aggregate
amount of P&I Advances outstanding after giving effect to such P&I Advances, and
the aggregate amount of Nonrecoverable P&I Advances in respect of such
Distribution Date and (ii) such other information with respect to the Mortgage
Loans as the Trustee may reasonably require to perform the calculations
necessary to
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make the distributions contemplated by Section 4.01 and to prepare the
statements to Certificateholders contemplated by Section 4.02. The Trustee shall
not be responsible to recompute, recalculate or verify any information provided
to it by the Master Servicer or the Special Servicer.
(b) The amount of P&I Advances to be made by the Master
Servicer or the Special Servicer for any Distribution Date shall equal, subject
to Section 4.03(d), the sum of (i) the aggregate amount of Monthly Payments
(with each interest portion thereof net of the related Servicing Fee), due on
the related Due Date in respect of the Mortgage Loans or the Specially Serviced
Mortgage Loans, as applicable, which Monthly Payments were delinquent as of the
close of business on the related Determination Date and (ii) with respect to
each REO Property, which REO Property was acquired during or prior to the
related Due Period and as to which REO Property an REO Disposition did not occur
during the related Due Period, an amount equal to the excess, if any, of the REO
Imputed Interest on such REO Property for the most recently ended calendar
month, over the net income from such REO Property transferred to the
Distribution Account pursuant to Section 3.23 for distribution on such
Distribution Date.
On or before 12:00 p.m. New York time on the Master Servicer
Remittance Date, the Master Servicer shall remit in immediately available funds
to the Trustee for deposit in the Distribution Account an amount equal to the
aggregate amount of P&I Advances, if any, to be made in respect of the Mortgage
Loans and REO Properties for the related Distribution Date either (i) from its
own funds or (ii) from the Collection Account, to the extent of funds held
therein for future distribution (in which case, it will cause to be made an
appropriate entry in the records of Collection Account that amounts held for
future distribution have been, as permitted by this Section 4.03, used by the
Master Servicer in discharge of any such P&I Advance) or (iii) in the form of
any combination of (i) and (ii) aggregating the total amount of P&I Advances to
be made by the Master Servicer with respect to the Mortgage Loans and REO
Properties. Any amounts held for future distribution and so used shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Collection Account on or before any future
Master Servicer Remittance Date to the extent that the Available Distribution
Amount for the related Distribution Date (determined without regard to P&I
Advances to be made on the Master Servicer Remittance Date) shall be less than
the total amount that would be distributed to the Classes of Certificateholders
pursuant to Section 4.01 on such Distribution Date if such amounts held for
future distributions had not been so used to make P&I Advances. The Trustee will
provide notice to the Master Servicer by telecopy by the close of business on
the Master Servicer Remittance Date in the event that the amount remitted by the
Master Servicer to the Trustee on such Master Servicer Remittance Date is less
than the P&I Advances required to be made by the Master Servicer for the related
Distribution Date.
(c) The obligation of the Master Servicer to make such P&I
Advances is mandatory, notwithstanding any other provision of this Agreement but
subject to (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from REMIC I pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder by the Master Servicer if such
P&I Advance would, if made,
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constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officers' Certificate of the Master Servicer delivered to the
Depositor and the Trustee.
(e) With respect to each of the obligations of the Master
Servicer set forth in this Section 4.03 and the Specially Serviced Mortgage
Loans, the Special Servicing Agreement provides that such obligations will be
assumed directly by the Special Servicer pursuant to the terms of the Special
Servicing Agreement and any references to the Master Servicer in Section 4.03 in
this Agreement shall refer, in the Special Servicing Agreement, to the Special
Servicer with respect to the Specially Serviced Mortgage Loans.
SECTION 4.04. Allocation of Extraordinary Trust Fund Expenses
and Realized Losses.
(a) Prior to each Distribution Date, the Master Servicer shall
determine as to each Mortgage Loan and REO Property: (i) the total amount of
Realized Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Prepayment Period; (ii) whether and the
extent to which such Realized Losses constituted Fraud Losses or Special Hazard
Losses; and (iii) the respective portions of such Realized Losses allocable to
interest and allocable to principal. Prior to each Distribution Date, the Master
Servicer shall also determine as to each Mortgage Loan: (A) the total amount of
Realized Losses, if any, incurred in connection with any Deficient Valuations
made during the related Prepayment Period; and (B) the total amount of Realized
Losses, if any, incurred in connection with Debt Service Reductions in respect
of Monthly Payments due during the related Due Period. The information described
in the two preceding sentences that is to be supplied by the Master Servicer
shall be evidenced by an Officers' Certificate delivered to the Trustee by the
Master Servicer prior to the Determination Date immediately following the end of
(x) in the case of Bankruptcy Losses allocable to interest, the Due Period
during which any such Realized Loss was incurred, and (y) in the case of all
other Realized Losses, the Prepayment Period during which any such Realized Loss
was incurred.
(b) All Realized Losses on the Mortgage Loans (other than
Excess Losses) shall be allocated by the Trustee on each Distribution Date as
follows: first, to the Class B-6 Certificates; second, to the Class B-5
Certificates; third, to the Class B-4 Certificates; fourth, to the Class B-3
Certificates; fifth, to the Class B-2 Certificates; and sixth, to the Class B-1
Certificates, in each case until the Certificate Principal Balance thereof has
been reduced to zero. Thereafter, upon the reduction of the Certificate
Principal Balances of the Subordinate Certificates to zero, if Realized Losses
are on a Mortgage Loan or Mortgage Loan Component (other than a Class PO
Mortgage Loan), such Realized Losses will be allocated on any Distribution Date
first, to any amounts on deposit in the Excess Diverted Interest Reserve Account
and second, to the Class IA-1 Certificates, if the Realized Loss is on a Group I
Mortgage Loan or Group I Mortgage Loan Component in Subgroup IA-1, to the Class
IA-2 Certificates, if the Realized Loss is on a Group I Mortgage Loan Component
in Subgroup IA-2, to the Class IA-3 Certificates, if the Realized Loss is on a
Group I Mortgage Loan or Group I Mortgage Loan Component in Subgroup IA-3, to
the Class IIA-1 Certificates, if the Realized Loss is on a Group II Mortgage
Loan or Group II Mortgage Loan Component in Subgroup IIA-1, to the Class IIA-2
Certificates, if the Realized Loss is on a Group
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II Mortgage Loan Component in Subgroup IIA-2, to the Class IIA-3 Certificates,
if the Realized Loss is on a Group II Mortgage Loan or Group II Mortgage Loan
Component in Subgroup IIA-3, to the Class IIIA-1 Certificates, if the Realized
Loss is on a Group III Mortgage Loan or Group III Mortgage Loan Component in
Subgroup IIIA-1, to the Class IIIA-2 Certificates, if the Realized Loss is on a
Group III Mortgage Loan or Group III Mortgage Loan Component in Subgroup IIIA-2,
and to the Class IVA-1 Certificates, if the Realized Loss is on a Group IV
Mortgage Loan, in each case, to the extent not covered by the Subordinate
Certificates. If Realized Losses are on a Class PO Mortgage Loan, such Realized
Losses will be allocated first, to any amounts on deposit in the Excess Diverted
Interest Reserve Account, second, to the Class PO-1 Certificates, if the
Realized Loss is on a Group I Mortgage Loan, to the Class PO-2 Certificates, if
the Realized Loss is on a Group II Mortgage Loan, to the Class PO-3
Certificates, if the Realized Loss is on a Group III Mortgage Loan, or to the
Class PO-4 Certificates, if the Realized Loss is on a Group IV Mortgage Loan, in
each case, in an amount equal to the related Class PO Percentage of the Realized
Losses and third, the remainder of the Realized Losses will be allocated on any
Distribution Date to the Class IA-1 Certificates, if the Realized Loss is on a
Group I Mortgage Loan or Group I Mortgage Loan Component in Subgroup IA-1, to
the Class IA-2 Certificates, if the Realized Loss is on a Group I Mortgage Loan
Component in Subgroup IA-2, to the Class IA-3 Certificates, if the Realized Loss
is on a Group I Mortgage Loan or Group I Mortgage Loan Component in Subgroup
IA-3, to the Class IIA-1 Certificates, if the Realized Loss is on a Group II
Mortgage Loan or Group II Mortgage Loan Component in Subgroup IIA-1, to the
Class IIA-2 Certificates, if the Realized Loss is on a Group II Mortgage Loan
Component in Subgroup IIA-2, to the Class IIA-3 Certificates, if the Realized
Loss is on a Group II Mortgage Loan or Group II Mortgage Loan Component in
Subgroup IIA-3, to the Class IIIA-1 Certificates, if the Realized Loss is on a
Group III Mortgage Loan or Group III Mortgage Loan Component in Subgroup IIIA-1,
to the Class IIIA-2 Certificates, if the Realized Loss is on a Group III
Mortgage Loan or Group III Mortgage Loan Component in Subgroup IIIA-2, and to
the Class IVA-1 Certificates, if the Realized Loss is on a Group IV Mortgage
Loan, in each case, to the extent not covered by the Subordinate Certificates.
If a Realized Loss is allocated to the Excess Diverted Interest Reserve Account
or unpaid interest shortfalls exist on the Class A Certificates related to the
Undercollateralizated Subgroup or Subgroups, the Trustee shall pay the sum of
the Subgroup IA-1 Excess Diverted Interest Reserve Deposit, the Subgroup IA-2
Excess Diverted Interest Reserve Deposit, the Subgroup IA-3 Excess Diverted
Interest Reserve Deposit, the Subgroup IIA-1 Excess Diverted Interest Reserve
Deposit, the Subgroup IIA-2 Excess Diverted Interest Reserve Deposit, the
Subgroup IIA-3 Excess Diverted Interest Reserve Deposit, the Subgroup IIIA-1
Excess Diverted Interest Reserve Deposit, the Subgroup IIIA-2 Excess Diverted
Interest Reserve Deposit and the Group IV Excess Diverted Interest Reserve
Deposit first, concurrently, on a PRO RATA basis (based on the aggregate unpaid
interest shortfall in the related Subgroups) to the Available Distribution
Amount for the Subgroups to which the unpaid interest shortfall relates until
the aggregate amount of such interest shortfalls are reduced to zero and second,
concurrently, on a PRO RATA basis (based on the aggregate principal balance of
Realized Losses in the related Subgroups) to the Available Distribution Amount
for the Subgroups to which the Realized Loss relates until the aggregate
principal balance of such Realized Losses are reduced to zero.
Excess Losses on a Mortgage Loan or Mortgage Loan Component
(other than a Class PO Mortgage Loan) shall be allocated on any Distribution
Date by allocating the related Senior Percentage of the Excess Loss to the Class
IA-1 Certificates, if the Realized Loss is on a Group I Mortgage Loan or Group I
Mortgage Loan Component in Subgroup IA-1, to the Class IA-2
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Certificates, if the Realized Loss is on a Group I Mortgage Loan Component in
Subgroup IA-2, to the Class IA-3 Certificates, if the Realized Loss is on a
Group I Mortgage Loan or Group I Mortgage Loan Component in Subgroup IA-3, to
the Class IIA-1 Certificates, if the Realized Loss is on a Group II Mortgage
Loan or Group II Mortgage Loan Component in Subgroup IIA-1, to the Class IIA-2
Certificates, if the Realized Loss is on a Group II Mortgage Loan Component in
Subgroup IIA- 2, to the Class IIA-3 Certificates, if the Realized Loss is on a
Group II Mortgage Loan or Group II Mortgage Loan Component in Subgroup IIA-3, to
the Class IIIA-1 Certificates, if the Realized Loss is on a Group III Mortgage
Loan or Group III Mortgage Loan Component in Subgroup IIIA-1, to the Class
IIIA-2 Certificates, if the Realized Loss is on a Group III Mortgage Loan or
Group III Mortgage Loan Component in Subgroup IIIA-2, and to the Class IVA-1
Certificates, if the Realized Loss is on a Group IV Mortgage Loan, and the
Subgroup IA-1 Subordinate Percentage, the Subgroup IA-2 Subordinate Percentage,
the Subgroup IA-3 Subordinate Percentage, the Subgroup IIA-1 Subordinate
Percentage, the Subgroup IIA-2 Subordinate Percentage, the Subgroup IIA-3
Subordinate Percentage, the Subgroup IIIA-1 Subordinate Percentage, the Subgroup
IIIA-2 Subordinate Percentage or the Group IV Subordinate Percentage, as
applicable, of the Excess Loss to the Subordinate Certificates. Excess Losses on
a Class PO Mortgage Loan will be allocated to the Class PO-1 Certificates, if
the Realized Loss is on a Group I Mortgage Loan, to the Class PO-2 Certificates,
if the Realized Loss is on a Group II Mortgage Loan, to the Class PO-3
Certificates, if the Realized Loss is on a Group III Mortgage Loan, and to the
Class PO-4 Certificates, if the Realized Loss is on a Group IV Mortgage Loan, in
an amount equal to the related Class PO Percentage of the Excess Losses and the
remainder of the Excess Losses will be allocated on any Distribution Date (i)
the related Senior Percentage of the Excess Loss to the Class IA-1 Certificates,
if the Realized Loss is on a Mortgage Loan or Mortgage Loan Component in
Subgroup IA-1, to the Class IA-2 Certificates, if the Realized Loss is on a
Mortgage Loan Component in Subgroup IA-2, to the Class IA-3 Certificates, if the
Realized Loss is on a Mortgage Loan or Mortgage Loan Component in Subgroup IA-3,
to the Class IIA-1 Certificates, if the Realized Loss is on a Mortgage Loan or
Mortgage Loan Component in Subgroup IIA-1, to the Class IIA-2 Certificates, if
the Realized Loss is on a Mortgage Loan Component in Subgroup IIA-2, to the
Class IIA-3 Certificates, if the Realized Loss is on a Mortgage Loan or Mortgage
Loan Component in Subgroup IIA-3, to the Class IIIA-1 Certificates, if the
Realized Loss is on a Mortgage Loan or Mortgage Loan Component in Subgroup
IIIA-1, to the Class IIIA-2 Certificates, if the Realized Loss is on a Mortgage
Loan or Mortgage Loan Component in Subgroup IIIA-2 and to the Class IVA-1
Certificates, if the Realized Loss is on a Group IV Mortgage Loan and (ii) the
Subgroup IA-1 Subordinate Percentage, the Subgroup IA-2 Subordinate Percentage,
the Subgroup IA-3 Subordinate Percentage, the Subgroup IIA-1 Subordinate
Percentage, the Subgroup IIA-2 Subordinate Percentage, the Subgroup IIA-3
Subordinate Percentage, the Subgroup IIIA-1 Subordinate Percentage, the Subgroup
IIIA-2 Subordinate Percentage or the Group IV Subordinate Percentage, as
applicable, of the Excess Loss to the Subordinate Certificates.
Extraordinary Trust Fund Expenses shall be allocated on any
Distribution Date as follows: first, to the Class B-6 Certificates; second, to
the Class B-5 Certificates; third, to the Class B-4 Certificates; fourth, to the
Class B-3 Certificates; fifth, to the Class B-2 Certificates; and sixth, to the
Class B-1 Certificates, in each case until the Certificate Principal Balance of
the related Class has been reduced to zero. Thereafter, the Extraordinary Trust
Fund Expenses will be allocated on any Distribution Date among the Group I
Senior Certificates (other than the Class XS-1 Certificates), the Group II
Senior Certificates (other than the Class XS-2 Certificates), the Group III
Senior
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Certificates (other than the Class XS-3 Certificates) or the Group IV Senior
Certificates (other than the Class XS-4 Certificates) , as applicable, on a PRO
RATA basis.
As used herein, an allocation of a Realized Loss or
Extraordinary Trust Fund Expense on a "PRO RATA basis" among two or more
specified Classes of Certificates means an allocation on a PRO RATA basis, among
the various Classes so specified, to each such Class of Certificates on the
basis of their then outstanding Certificate Principal Balances prior to giving
effect to distributions to be made on such Distribution Date. All Realized
Losses and all other losses allocated to a Class of Certificates hereunder will
be allocated among the Certificates of such Class in proportion to the
Percentage Interests evidenced thereby.
(c) Notwithstanding anything to the contrary herein, in no
event shall the Certificate Principal Balance of a Certificate be reduced more
than once in respect of any particular amount both (i) allocable to such
Certificate in respect of Realized Losses or Extraordinary Trust Fund Expenses
pursuant to Section 4.04 and (ii) payable to the Holder of such Certificate
pursuant to Section 4.01(a) as a portion of the related Senior Principal
Distribution Amount, the related Class PO Principal Distribution Amount or the
Subordinate Principal Distribution Amount, as the case may be.
(d) Allocation of Realized Losses and Extraordinary Trust Fund
Expenses to REMIC I Regular Interests and REMIC II Regular Interests. Realized
Losses and Excess Losses shall be applied after all distributions have been made
on each Distribution Date to the REMIC I Regular Interests as follows:
WITH RESPECT TO REALIZED LOSSES AND EXCESS LOSSES ON MORTGAGE
LOANS IN LOAN GROUP I:
(a) Realized Losses and Excess Losses on Class PO Mortgage
Loans shall be allocated to REMIC I Regular Interest I-LT-1 and REMIC I Regular
Xxxxxxxx X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the
Class PO-Percentage, respectively;
(b) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 5.50% per annum and
less than 6.50% per annum shall be allocated to REMIC I Regular Interest I-LT-1
and REMIC I Regular Interest I-LT-2, in the same proportion as the Applicable
Fraction divides such Mortgage Loan;
(c) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 6.50% per annum and
less than 6.75% per annum shall be allocated to REMIC I Regular Interest I-LT-2
and REMIC I Regular Interest I-LT-3, in the same proportion as the Applicable
Fraction divides such Mortgage Loan; and
(d) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 6.75% per annum shall
be allocated to REMIC I Regular Interest I-LT-3.
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WITH RESPECT TO REALIZED LOSSES AND EXCESS LOSSES ON MORTGAGE
LOANS IN LOAN GROUP II:
(a) Realized Losses and Excess Losses on Class PO Mortgage
Loans shall be allocated to REMIC I Regular Interest I-LT-4 and REMIC I Regular
Xxxxxxxx X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the
Class PO-Percentage, respectively;
(b) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 5.50% per annum and
less than 6.00% per annum shall be allocated to REMIC I Regular Interest I-LT-4
and REMIC I Regular Interest I-LT-5, in the same proportion as the Applicable
Fraction divides such Mortgage Loan;
(c) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 6.00% per annum and
less than 6.75% per annum shall be allocated to REMIC I Regular Interest I-LT-5
and REMIC I Regular Interest I-LT-6, in the same proportion as the Applicable
Fraction divides such Mortgage Loan; and
(d) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 6.75% per annum shall
be allocated to REMIC I Regular Interest I-LT-6.
WITH RESPECT TO REALIZED LOSSES AND EXCESS LOSSES ON MORTGAGE
LOANS IN LOAN GROUP III:
(a) Realized Losses and Excess Losses on Class PO Mortgage
Loans shall be allocated to REMIC I Regular Interest I-LT-7 and REMIC I Regular
Xxxxxxxx X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the
Class PO-Percentage, respectively;
(b) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 5.00% per annum and
less than 5.50% per annum shall be allocated to REMIC I Regular Interest I-LT-7
and REMIC I Regular Interest I-LT-8, in the same proportion as the Applicable
Fraction divides such Mortgage Loan; and
(c) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 5.50% per annum shall
be allocated to REMIC I Regular Interest I-LT-8.
WITH RESPECT TO REALIZED LOSSES AND EXCESS LOSSES ON MORTGAGE LOANS IN
LOAN GROUP IV:
(a) Realized Losses and Excess Losses on Class PO Mortgage
Loans shall be allocated to REMIC I Regular Interest I-LT-9 and REMIC I Regular
Xxxxxxxx X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the
Class PO-Percentage, respectively; and
(b) Realized Losses and Excess Losses on Mortgage Loans with
an Expense Adjusted Mortgage Rate greater than or equal to 6.75% shall be
allocated to REMIC I Regular Interest I-LT-9.
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Realized Losses and Excess Losses shall be applied after all distributions have
been made on each Distribution Date to the REMIC II Regular Interests first, to
each REMIC II Regular Interest ending with the designation "A", as applicable,
so that the Uncertificated Balance of each such REMIC II Regular Interest is
equal to 0.01% of the excess of (x) the aggregate Scheduled Principal Balance of
the Mortgage Loans and Mortgage Loan Components in the Corresponding Subgroup
over (y) the current Certificate Principal Balance of the Class A Certificate in
the Corresponding Subgroup (except that if any such excess is a larger number
than in the preceding distribution period, the least amount of Realized Losses
and Excess Losses shall be applied to such REMIC II Regular Interests such that
the REMIC II Subordinated Balance Ratio is maintained); and second, any
remaining Realized Losses and Excess Losses from each Loan Group shall be
allocated to each REMIC II Regular Interest ending with the designation "B", as
applicable (except that if a Realized Loss is recognized with respect to a Class
PO Mortgage Loan in any of the Group I Mortgage Loans, Group II Mortgage Loans,
Group III Mortgage Loans or Group IV Mortgage Loans, the applicable portion of
such Realized Loss will be allocated to REMIC II Regular Interest II-LT-PO1,
REMIC II Regular Interest II-LT-PO2, REMIC II Regular Interest II-LT-PO3 and
REMIC II Regular Interest II-LT-PO4, respectively).
SECTION 4.05. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
SECTION 4.06. Distributions on the REMIC I Regular Interests
and REMIC II Regular Interests.
Distributions of principal shall be deemed to be made to the
REMIC I Regular Interests, in each case from the related Loan Group, as follows:
WITH RESPECT TO THE MORTGAGE LOANS IN LOAN GROUP I:
(a) Principal received on Class PO Mortgage Loans shall be
allocated to REMIC I Regular Interest I-LT-1 and REMIC I Regular Xxxxxxxx
X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the Class
PO-Percentage, respectively;
(b) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 5.50% per annum and less than
6.50% per annum shall be allocated to REMIC I Regular Interest I-LT-1 and REMIC
I Regular Interest I-LT-2, in the same proportion as the Applicable Fraction
divides such Mortgage Loan;
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(c) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 6.50% per annum and less than
6.75% per annum shall be allocated to REMIC I Regular Interest I-LT-2 and REMIC
I Regular Interest I-LT-3, in the same proportion as the Applicable Fraction
divides such Mortgage Loan; and
(d) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 6.75% per annum shall be
allocated to REMIC I Regular Interest I-LT- 3.
WITH RESPECT TO THE MORTGAGE LOANS IN LOAN GROUP II:
(a) Principal received on Class PO Mortgage Loans shall be
allocated to REMIC I Regular Interest I-LT-4 and REMIC I Regular Xxxxxxxx
X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the Class
PO-Percentage, respectively;
(b) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 5.50% per annum and less than
6.00% per annum shall be allocated to REMIC I Regular Interest I-LT-4 and REMIC
I Regular Interest I-LT-5, in the same proportion as the Applicable Fraction
divides such Mortgage Loan;
(c) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 6.00% per annum and less than
6.75% per annum shall be allocated to REMIC I Regular Interest I-LT-5 and REMIC
I Regular Interest I-LT-6, in the same proportion as the Applicable Fraction
divides such Mortgage Loan; and
(d) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 6.75% per annum shall be
allocated to REMIC I Regular Interest I-LT- 6.
WITH RESPECT TO THE MORTGAGE LOANS IN LOAN GROUP III:
(a) Principal received on Class PO Mortgage Loans shall be
allocated to REMIC I Regular Interest I-LT-7 and REMIC I Regular Xxxxxxxx
X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the Class
PO-Percentage, respectively;
(b) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 5.00% per annum and less than
5.50% per annum shall be allocated to REMIC I Regular Interest I-LT-7 and REMIC
I Regular Interest I-LT-8, in the same proportion as the Applicable Fraction
divides such Mortgage Loan; and
(c) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 5.50% per annum shall be
allocated to REMIC I Regular Interest I-LT- 8.
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WITH RESPECT TO THE MORTGAGE LOANS IN LOAN GROUP IV:
(a) Principal received on Class PO Mortgage Loans shall be
allocated to REMIC I Regular Interest I-LT-9 and REMIC I Regular Xxxxxxxx
X-XX-XX0, in the same proportion as the Non-Class PO Percentage and the Class
PO-Percentage, respectively; and
(b) Principal received on Mortgage Loans with an Expense
Adjusted Mortgage Rate greater than or equal to 6.75% shall be allocated to
REMIC I Regular Interest I-LT-9.
Distributions of principal shall be deemed to be made to the
REMIC II Regular Interests, in each case from the related Loan Group, first, to
each REMIC II Regular Interest ending with the designation "A", as applicable,
so that the Uncertificated Balance of each such REMIC II Regular Interest is
equal to 0.01% of the excess of (x) the aggregate Scheduled Principal Balance of
the Mortgage Loans and Mortgage Loan Components in the Corresponding Subgroup
over (y) the current Certificate Principal Balance of the Class A Certificate in
the Corresponding Subgroup (except that if any such excess is a larger number
than in the preceding distribution period, the least amount of principal shall
be distributed to such REMIC II Regular Interests such that the REMIC II
Subordinated Balance Ratio is maintained); and second, any remaining principal
in each Loan Group to each REMIC II Regular Interest ending with the designation
"B", as applicable, as applicable (provided that a portion of the remaining
principal equal to the Class PO Principal Distribution Amount attributable to
the Group I Mortgage Loans, the Class PO Principal Distribution Amount
attributable to the Group II Mortgage Loans, the Class PO Principal Distribution
Amount attributable to the Group III Mortgage Loans and the Class PO Principal
Distribution Amount attributable to the Group IV Mortgage Loans will be
distributed to REMIC II Regular Interest II-LT-PO1, REMIC II Regular Interest
II-LT-PO2, REMIC II Regular Interest II- LTPO3 and REMIC I Regular Xxxxxxxx
XX-XX0, respectively).
SECTION 4.07. Commission Reporting.
(a) The Trustee and the Master Servicer shall reasonably
cooperate with the Depositor in connection with satisfying the reporting
requirements under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The Trustee shall prepare and file (via the Securities and
Exchange Commission's Electronic Data Gathering and Retrieval System) on behalf
of the Trust Fund any Forms 8-K and 10-K (and the Master Servicer shall sign any
Form 10-K) customary for similar securities as required by the Exchange Act and
the Rules and Regulations of the Securities and Exchange Commission thereunder.
(b) Each Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date, with a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30th of each year (or such earlier date as may be required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission),
the Trustee shall file a Form 10-K, in substance as required by applicable law
or applicable Security and Exchange Commission staff's interpretations. Such
Form 10-K shall include as exhibits the Master Servicer's annual statement of
compliance described under Section 3.20 and the accountant's report described
under Section 3.21, in each case to the extent they have been timely delivered
to the Trustee. The Trustee shall have no liability with respect to (a) any
failure to properly prepare or file
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such periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence, willful
misconduct or bad faith or (b) any inaccuracy in such periodic reports resulting
from incorrect information provided to the Trustee by the Master Servicer in a
Remittance Report or otherwise. The Form 10-K shall also include a certification
in the form attached hereto as Exhibit J-1 (the "Certification"), which shall be
signed by the senior officer of the Master Servicer in charge of servicing.
(c) In addition, the Trustee shall sign a certification (in
the form attached hereto as Exhibit J-2) for the benefit of the Master Servicer
and its officers, directors and Affiliates regarding certain aspects of the
Certification (the "Trustee Certification") (provided, however, that the Trustee
shall not undertake an analysis of the accountant's report attached as an
exhibit to the Form 10-K). Such certification shall be delivered to the Master
Servicer no later than the 20th day prior to the latest date on which the Form
10-K is permitted to be filed, without regard to extension (or if such day is
not a Business Day, the immediately preceding Business Day) and the Master
Servicer shall deliver the Certification to be filed to the Trustee no later
than the 10th day prior to the latest date on which the Form 10-K is permitted
to be filed, without regard to extension (or if such day is not a Business Day,
the immediately preceding Business Day).
In addition, (i) the Trustee shall, subject to the provisions
of Sections 8.01 and 8.02 hereof, indemnify and hold harmless the Depositor, the
Master Servicer and each of its officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (a) a breach of the Trustee's obligations under
this Section 4.07(c), (b) the Trustee's negligence, bad faith or willful
misconduct in connection therewith or (c) any inaccuracy in the Trustee
Certification and (ii) the Master Servicer shall indemnify and hold harmless the
Depositor, the Trustee and their respective officers, directors and Affiliates
from and against any actual losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon (a) the failure of the Master Servicer
to timely deliver the Certification or (b) any material misstatement in the
Certification. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Depositor, then (i) the Trustee agrees that it
shall contribute to the amount paid or payable by the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such proportion
as is appropriate to reflect the relative fault of the Depositor on the one hand
and the Trustee on the other in connection with a breach of the Trustee's
obligations under this Section 4.07(c) or the Trustee's negligence, bad faith or
willful misconduct in connection therewith and (ii) the Master Servicer agrees
that it shall contribute to the amount paid or payable by the Depositor as a
result of the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the Depositor on
the one hand and the Master Servicer on the other in connection with a breach of
the Master Servicer's obligations under this Section 4.07(c) or the Master
Servicer's negligence, bad faith or willful misconduct in connection therewith.
(d) Upon any filing with the Securities and Exchange
Commission, the Trustee shall promptly deliver to the Depositor and the Master
Servicer a copy of any executed report, statement or information.
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(e) Prior to January 30th of the first year in which the
Trustee is able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust Fund.
(f) To the extent that, following the Closing Date, the
Depositor certifies that reports and certifications differing from those
required under this Section 4.07 comply with the reporting requirements under
the Exchange Act, the Trustee and the Master Servicer hereby agree that they
will reasonably cooperate to amend the provisions of this Section 4.07 in order
to comply with such amended reporting requirements and such amendment of this
Section 4.07. Any such amendment may result in the reduction of the reports
filed by the Depositor under the Exchange Act. Notwithstanding the foregoing,
the parties hereto shall not be obligated to enter into any amendment pursuant
to this Section 4.07 that adversely affects its obligations and immunities under
this Agreement.
SECTION 4.08. Excess Diverted Interest Reserve Account
(a) No later than the Closing Date, the Trustee shall
establish and maintain with itself, a separate, segregated trust account titled,
"Excess Diverted Interest Reserve Account, "U.S. Bank National Association, as
Trustee, in trust for the registered holders of Citigroup Mortgage Loan Trust
Inc., Mortgage Pass-Through Certificates, Series 2004-NCM1."
(b) On each Distribution Date as to which there is an Excess
Diverted Interest Reserve Amount payable to a Class of Class A Certificates, the
Trustee shall deposit into the Excess Diverted Interest Reserve Account the
amount of such Excess Diverted Interest Reserve Amount, rather than distributing
such amounts to the Class R Certificateholders. On each such Distribution Date,
the Trustee shall hold all such amounts for the benefit of the Holders of the
Class A Certificates, and will distribute such amounts to the Holders of the
Class A Certificates, in the amounts and priorities set forth in Section 4.01.
(c) For federal and state income tax purposes, the Excess
Diverted Interest Reserve Account will be a "qualified reserve fund" within the
meaning of Code Section 860(G)(7)(B).
(d) At the written direction of the Holders of a majority in
Percentage Interest in the Class R Certificates, the Trustee shall direct any
depository institution maintaining the Excess Diverted Interest Reserve Account
to invest the funds in such account in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, (i) no
later than the Business Day immediately preceding the date on which such funds
are required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Trustee or an Affiliate manages or advises such
investment, and (ii) no later than the date on which such funds are required to
be withdrawn from such account pursuant to this Agreement, if the Trustee or an
Affiliate manages or advises such investment. Interest earned on such investment
shall be deposited into the Excess Diverted Interest Reserve Account.
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(f) For federal tax return and information reporting, the
right of the Holders of the Class A Certificates to receive payments from the
Excess Diverted Interest Reserve Account in respect of any Excess Diverted
Interest Reserve Amount shall be assigned a value of zero.
(g) On the final Distribution Date, all Excess Diverted
Interest Reserve Amounts remaining in the Excess Diverted Interest Reserve
Account, if any, shall be paid to the Holders of the Class R Certificates.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates in the aggregate will represent the
entire beneficial ownership interest in the Mortgage Loans and all other assets
included in REMIC I. At the Closing Date, the aggregate Certificate Principal
Balance of the Certificates will equal the aggregate Stated Principal Balance of
the Mortgage Loans.
The Certificates will be substantially in the forms annexed
hereto as Exhibits A-1 through A-24. The Certificates of each Class will be
issuable in registered form only, in denominations of authorized Percentage
Interests as described in the definition thereof. Each Certificate will share
ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed,
authenticated and delivered by the Trustee to or upon the order of the
Depositor. The Certificates shall be executed and attested by manual or
facsimile signature on behalf of the Trustee by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement or be valid for any purpose, unless
there appears on such Certificate a certificate of authentication substantially
in the form provided herein executed by the Trustee by manual signature, and
such certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
(b) The Class A Certificates, the Class XS Certificates, the
Class PO Certificates, the Class B-1 Certificates, the Class B-2 Certificates
and the Class B-3 Certificates shall initially be issued as one or more
Certificates held by the Book-Entry Custodian or, if appointed to hold such
Certificates as provided below, the Depository and registered in the name of the
Depository or its nominee and, except as provided below, registration of such
Certificates may not be transferred by the Trustee except to another Depository
that agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. The Certificate Owners shall hold their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided below, shall not be
entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures. The Trustee is hereby initially appointed as the Book-Entry
Custodian and hereby agrees to act as such in accordance herewith and in
accordance with the agreement that it has with the Depository authorizing it to
act
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as such. The Book-Entry Custodian may, and if it is no longer qualified to act
as such, the Book- Entry Custodian shall, appoint, by a written instrument
delivered to the Depositor, the Master Servicer, the Trustee (if the Trustee is
not the Book-Entry Custodian) and any other transfer agent (including the
Depository or any successor Depository) to act as Book-Entry Custodian under
such conditions as the predecessor Book-Entry Custodian and the Depository or
any successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Trustee
resigns or is removed in accordance with the terms hereof, the successor trustee
or, if it so elects, the Depository shall immediately succeed to its
predecessor's duties as Book-Entry Custodian. The Depositor shall have the right
to inspect, and to obtain copies of, any Certificates held as Book- Entry
Certificates by the Book-Entry Custodian.
The Trustee, the Master Servicer and the Depositor may for all
purposes (including the making of payments due on the Book-Entry Certificates)
deal with the Depository as the authorized representative of the Certificate
Owners with respect to the Book-Entry Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Certificateholders
and shall give notice to the Depository of such record date.
If (i)(A) the Depositor advises the Trustee in writing that
the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) after the occurrence of a Master Servicer Event of
Default, Certificate Owners representing in the aggregate not less than 51% of
the Ownership Interests of the Book-Entry Certificates advise the Trustee
through the Depository, in writing, that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners, through the Depository,
of the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Book-Entry Certificates by the Book-Entry Custodian or the
Depository, as applicable, accompanied by registration instructions from the
Depository for registration of transfer, the Trustee shall issue the Definitive
Certificates. Such Definitive Certificates will be issued in minimum
denominations of $100,000, except that any beneficial ownership that was
represented by a Book-Entry Certificate in an amount less than $100,000
immediately prior to the issuance of a Definitive Certificate shall be issued in
a minimum denomination equal to the amount represented by such Book-Entry
Certificate. None of the Depositor, the Master Servicer nor the Trustee shall be
liable for any delay in the delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates, and the Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder.
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SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at one of the offices
or agencies to be appointed by the Trustee in accordance with the provisions of
Section 8.12 a Certificate Register for the Certificates in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided.
(b) The provisions of this Section 5.02(b), the provisions of
Section 5.02(c) and the provisions of Section 5.02(d) shall apply to (i) all
Transfers of Ownership Interests in Definitive Certificates and (ii) all
Transfers of Ownership Interests in the Book-Entry Certificates.
No transfer, sale, pledge or other disposition of any
Certificate or any Ownership Interest therein shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws.
In the event of any such transfer of any Ownership Interest in
any Definitive Certificate, except with respect to the initial transfer of any
Definitive Certificate by the Depositor (i) unless such transfer is made in
reliance upon Rule 144A under the 1933 Act (as evidenced by the investment
letter delivered to the Trustee, in substantially the form of the Form of Rule
144A Investment Letter included as part of Exhibit F hereto), the Trustee and
the Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall not be an expense of the Trustee or the Depositor or (ii) the Trustee
shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit G) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit F) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which transferor certificate and investment
letter shall not be an expense of the Trustee or the Depositor. The Holder of a
Definitive Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor and the Trust Fund 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.
In the event of any such transfer of any Ownership Interest in
any Book-Entry Certificate, except with respect to the initial transfer of any
such Certificate by the Depositor, such transfer shall be required to be made in
reliance upon Rule 144A under the 1933 Act, and the transferor will be deemed to
have made each of the representations and warranties set forth on Exhibit G
hereto in respect of such interest as if it was evidenced by a Definitive
Certificate and the transferee will be deemed to have made each of the
representations and warranties set forth in the Form of Rule 144A Investment
Letter included as part of Exhibit F hereto in respect of such interest as if it
was evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Book-Entry Certificate desiring to effect such
transfer shall, and does hereby
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agree to, indemnify the Trustee, the Depositor and the Trust Fund against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(c) No transfer of any Residual Certificate (an "ERISA
Restricted Certificate") or any interest therein shall be made to any Plan
subject to ERISA or Section 4975 of the Code, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring such Certificates
with "Plan Assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets") unless the
Depositor, the Trustee and the Master Servicer are provided with an Opinion of
Counsel which establishes to the satisfaction of the Depositor, the Trustee and
the Master Servicer that the purchase of such Certificates is permissible under
applicable law, will not constitute or result in any prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Depositor, the
Master Servicer, the Trustee or the Trust Fund to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Master Servicer, the Trustee or
the Trust Fund. An Opinion of Counsel shall not 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) and the Trustee shall be entitled to conclusively rely
upon a representation (which, upon the request of the Trustee, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor. Each transferee of an ERISA Restricted
Certificate, except with respect to an initial transfer of any such Certificate
by the Depositor to an affiliate of the Depositor, not providing the Opinion of
Counsel required above shall sign and deliver to the Trustee a letter to the
Depositor, the Trustee and the Master Servicer representing that it is not a
Plan or a Person investing Plan Assets.
Each beneficial owner of a Class B-1 Certificate, Class B-2
Certificate or Class B-3 Certificate or any interest therein will be deemed to
have represented, by virtue of its acquisition or holding of that Certificate or
interest therein, that either (i) it is not a Plan or investing with "Plan
Assets", (ii) it has acquired and is holding such certificate in reliance on
Prohibited Transaction Exemption, as amended ("Exemption"), and that it
understands that there are certain conditions to the availability of the
Exemption, including that the certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by S&P, Fitch or Xxxxx'x and
the certificate is so rated or (iii) (1) it is an insurance company, (2) the
source of funds used to acquire or hold the certificate or interest therein is
an "insurance company general account," as such term is defined in Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I
and III of PTCE 95-60 have been satisfied.
Each beneficial owner of a Class B-4, Class B-5 or Class B-6
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of that certificate or interest therein,
that either (i) it is not a Plan or investing with Plan Assets or (ii)(1) it is
an insurance company, (2) the source of funds used to acquire or hold the
certificate or interest therein is an "insurance company general account" as
such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III
of PTCE 95-60 have been satisfied.
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If any ERISA Restricted Certificate or Subordinate Certificate
subject to the restrictions set forth in the preceding two paragraphs or any
interest therein is acquired or held in violation of the provisions of the
preceding two paragraphs, the next preceding permitted beneficial owner will be
treated as the beneficial owner of that Certificate retroactive to the date of
transfer to the purported beneficial owner. Any purported beneficial owner whose
acquisition or holding of any such Certificate or interest therein was effected
in violation of the provisions of the preceding two paragraphs shall indemnify
and hold harmless the Depositor, the Master Servicer, the Trustee and the Trust
Fund from and against any and all liabilities, claims, costs or expenses
incurred by those parties as a result of that acquisition or holding.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee or its designee under
clause (iii)(A) below to deliver payments to a Person other
than such Person and to negotiate the terms of any mandatory
sale under clause (iii)(B) below and to execute all
instruments of Transfer and to do all other things necessary
in connection with any such sale. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be
a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer
of any Ownership Interest in a Residual Certificate,
the Trustee shall require delivery to it and shall
not register the Transfer of any Residual Certificate
until its receipt of an affidavit and agreement (a
"Transfer Affidavit and Agreement"), in the form
attached hereto as Exhibit H, from the proposed
Transferee, in form and substance satisfactory to the
Trustee, representing and warranting, among other
things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains
its Ownership Interest in a Residual Certificate, it
will endeavor to remain a Permitted Transferee, and
that it has reviewed the provisions of this Section
5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed
Transferee under clause (B) above, if a Responsible
Officer of the Trustee who is assigned to this
transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer
of an Ownership Interest in a Residual Certificate to
such proposed Transferee shall be effected.
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(D) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall
agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person
attempts to transfer its Ownership Interest in a
Residual Certificate and (y) not to transfer its
Ownership Interest unless it provides a transferor
affidavit (a "Transferor Affidavit"), in the form
attached hereto as Exhibit H, to the Trustee stating
that, among other things, it has no actual knowledge
that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an
Ownership Interest in a Residual Certificate, by
purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning
of temporary Treasury regulation Section 1.67-
3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it
is, or is holding an Ownership Interest in a Residual
Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee will register the Transfer of any
Residual Certificate only if it shall have received the
Transfer Affidavit and Agreement and all of such other
documents as shall have been reasonably required by the
Trustee as a condition to such registration. In addition, no
Transfer of a Residual Certificate shall be made unless the
Trustee shall have received a representation letter from the
Transferee of such Certificate to the effect that such
Transferee is a Permitted Transferee.
(iii) (A) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(d), then the last
preceding Permitted Transferee shall be restored, to
the extent permitted by law, to all rights as holder
thereof retroactive to the date of registration of
such Transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for
any registration of Transfer of a Residual
Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on
such Certificate to the holder thereof or for taking
any other action with respect to such holder under
the provisions of this Agreement.
(B) If any purported Transferee shall become
a holder of a Residual Certificate in violation of
the restrictions in this Section 5.02(d) and to the
extent that the retroactive restoration of the rights
of the holder of such Residual Certificate as
described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Trustee shall have
the right, without notice to the holder or any prior
holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the
Trustee on such terms as the Trustee may choose. Such
purported Transferee shall promptly endorse and
deliver each Residual Certificate in accordance with
the instructions of the Trustee. Such purchaser may
be the Trustee itself or any Affiliate of the
Trustee. The proceeds of such sale, net of the
commissions (which may
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include commissions payable to the Trustee or its
Affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to such purported Transferee.
The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole
discretion of the Trustee, and the Trustee shall not
be liable to any Person having an Ownership Interest
in a Residual Certificate as a result of its exercise
of such discretion.
(iv) The Trustee shall make available to the Internal
Revenue Service and those Persons specified by the REMIC
Provisions all information necessary to compute any tax
imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a
Disqualified Organization, including the information described
in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such
Residual Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any
time any Person which is a Disqualified Organization.
Reasonable compensation for providing such information may be
accepted by the Trustee.
(v) The provisions of this Section 5.02(d) set forth
prior to this subsection (v) may be modified, added to or
eliminated, provided that there shall have been delivered to
the Trustee at the expense of the party seeking to modify, add
to or eliminate any such provision the following:
(A) written notification from each Rating
Agency to the effect that the modification, addition
to or elimination of such provisions will not cause
such Rating Agency to downgrade its then-current
ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and
substance satisfactory to the Trustee, to the effect
that such modification of, addition to or elimination
of such provisions will not cause any Trust REMIC to
cease to qualify as a REMIC and will not cause (x)
any Trust REMIC, as the case may be, to be subject to
an entity-level tax caused by the Transfer of any
Residual Certificate to a Person that is not a
Permitted Transferee or (y) a Person other than the
prospective transferee to be subject to a REMIC-tax
caused by the Transfer of a Residual Certificate to a
Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose pursuant to Section 8.12, the Trustee shall
execute, authenticate and deliver, in the name of the designated Transferee or
Transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest.
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(f) At the option of the Holder thereof, any Certificate may
be exchanged for other Certificates of the same Class with authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any office or agency of the Trustee maintained
for such purpose pursuant to Section 8.12. Whenever any Certificates are so
surrendered for exchange the Trustee shall execute, authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Trustee) be duly endorsed by, or be accompanied by
a written instrument of transfer in the form satisfactory to the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing.
(g) No service charge to the Certificateholders shall be made
for any transfer or exchange of Certificates, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange
shall be canceled and destroyed by the Trustee in accordance with its customary
procedures.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Trustee, or the Trustee receive evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (ii) there is delivered to the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of actual knowledge by the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like denomination and Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
REMIC I, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Depositor, the Master Servicer, the Trustee and any agent
of any of them may treat the Person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, and none of the
Depositor, the Master Servicer, the Trustee or any agent of any of them shall be
affected by notice to the contrary.
SECTION 5.05. Certain Available Information.
On or prior to the date of the first sale of any Private
Certificate to an Independent third party, the Depositor shall provide to the
Trustee ten copies of any private placement memorandum or other disclosure
document used by the Depositor in connection with the offer and
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sale of the Private Certificates. In addition, if any such private placement
memorandum or disclosure document is revised, amended or supplemented at any
time following the delivery thereof to the Trustee, the Depositor promptly shall
inform the Trustee of such event and shall deliver to the Trustee ten copies of
the private placement memorandum or disclosure document, as revised, amended or
supplemented. The Trustee shall maintain at its Corporate Trust Office and shall
make available free of charge during normal business hours for review by any
Holder of a Certificate or any Person identified to the Trustee as a prospective
transferee of a Certificate, originals or copies of the following items: (i) in
the case of a Holder or prospective transferee of a Private Certificate, the
private placement memorandum or other disclosure document relating to such
Certificates in the form most recently provided to the Trustee; and (ii) in all
cases, (A) this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all monthly statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trustee since the Closing Date
pursuant to Section 10.01(h), (D) any and all Officers' Certificates delivered
to the Trustee by the Master Servicer since the Closing Date to evidence the
Master Servicer's determination that any P&I Advance was, or if made, would be a
Nonrecoverable P&I Advance and (E) any and all Officers' Certificates delivered
to the Trustee by the Master Servicer since the Closing Date pursuant to Section
4.04(a). Copies and mailing of any and all of the foregoing items will be
available from the Trustee upon request at the expense of the person requesting
the same.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Liability of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement and undertaken hereunder by the Depositor and the Master
Servicer herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the
Master Servicer.
Subject to the following paragraph, the Depositor will keep in
full effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation. Subject to the following paragraph,
the Master Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and its qualification as an approved conventional seller/servicer
for Xxxxxx Xxx or Xxxxxxx Mac in good standing. The Depositor and the Master
Servicer each will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
The Depositor or the Master Servicer may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; PROVIDED, HOWEVER, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Mae or Xxxxxxx Mac; and provided further that the Rating Agency's ratings
of the Class A Certificates in effect immediately prior to such merger or
consolidation will not be qualified, reduced or withdrawn as a result thereof
(as evidenced by a letter to such effect from the Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer and Others.
None of the Depositor, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor or the Master Servicer
shall be under any liability to the Trust Fund or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; PROVIDED, HOWEVER, that
this provision shall not protect the Depositor, the Master Servicer or any such
person against any breach of warranties, representations or covenants made
herein, or against any specific liability imposed on the Master Servicer
pursuant hereto, or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless
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disregard of obligations and duties hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer shall be indemnified
and held harmless by the Trust Fund against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense to any specific Mortgage
Loan or Mortgage Loans (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) or any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. Neither the Depositor nor the Master Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and,
in its opinion, does not involve it in any expense or liability; PROVIDED,
HOWEVER, that each of the Depositor and the Master Servicer may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, unless the
Depositor or the Master Servicer acts without the consent of Holders of
Certificates entitled to at least 51% of the Voting Rights (which consent shall
not be necessary in the case of litigation or other legal action by either to
enforce their respective rights or defend themselves hereunder), the legal
expenses and costs of such action and any liability resulting therefrom (except
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder) shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor (subject to the limitations
set forth above) and the Master Servicer shall be entitled to be reimbursed
therefor from the Collection Account as and to the extent provided in Section
3.11, any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Collection Account.
SECTION 6.04. Limitation on Resignation of the Master
Servicer.
The Master Servicer shall not resign from the obligations and
duties hereby imposed on it except (i) upon determination that its duties
hereunder are no longer permissible under applicable law or (ii) with the
written consent of the Trustee, which consent may not be unreasonably withheld,
with written confirmation from the Rating Agency (which confirmation shall be
furnished to the Depositor and the Trustee) that such resignation will not cause
the Rating Agency to reduce the then current rating of the Class A Certificates
and provided that a qualified successor has agreed to assume the duties and
obligations of the Master Servicer hereunder. Any such determination pursuant to
clause (i) of the preceding sentence permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect obtained at
the expense of the Master Servicer and delivered to the Trustee. No resignation
of the Master Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities, duties,
liabilities (other than those liabilities arising prior to the appointment of
such successor) and obligations under this Agreement.
Except as expressly provided herein, the Master Servicer shall
not assign nor transfer any of its rights, benefits or privileges hereunder to
any other Person, nor delegate to or subcontract
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with, nor authorize or appoint any other Person to perform any of the duties,
covenants or obligations to be performed by the Master Servicer hereunder. If,
pursuant to any provision hereof, the duties of the Master Servicer are
transferred to a successor master servicer, the entire amount of the Servicing
Fee and other compensation payable to the Master Servicer pursuant hereto shall
thereafter be payable to such successor master servicer.
SECTION 6.05. Rights of the Depositor in Respect of the Master
Servicer.
The Master Servicer shall afford (and any Sub-Servicing
Agreement shall provide that each Sub-Servicer shall afford) the Depositor and
the Trustee, upon reasonable notice, during normal business hours, access to all
records maintained by the Master Servicer (and any such Sub-Servicer) in respect
of the Master Servicer's rights and obligations hereunder and access to officers
of the Master Servicer (and those of any such Sub-Servicer) responsible for such
obligations. Upon request, the Master Servicer shall furnish to the Depositor
and the Trustee its (and any such Sub-Servicer's) most recent financial
statements of the parent company of the Master Servicer and such other
information relating to the Master Servicer's capacity to perform its
obligations under this Agreement that it possesses. To the extent such
information is not otherwise available to the public, the Depositor and the
Trustee shall not disseminate any information obtained pursuant to the preceding
two sentences without the Master Servicer's written consent, except as required
pursuant to this Agreement or to the extent that it is appropriate to do so (i)
in working with legal counsel, auditors, taxing authorities or other
governmental agencies, rating agencies or reinsurers or (ii) pursuant to any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Depositor, the Trustee or
the Trust Fund, and in either case, the Depositor or the Trustee, as the case
may be, shall use its best efforts to assure the confidentiality of any such
disseminated non-public information. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer under this Agreement and may, but
is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer under this Agreement or exercise the rights of
the Master Servicer under this Agreement; provided that the Master Servicer
shall not be relieved of any of its obligations under this Agreement by virtue
of such performance by the Depositor or its designee. The Depositor shall not
have any responsibility or liability for any action or failure to act by the
Master Servicer and is not obligated to supervise the performance of the Master
Servicer under this Agreement or otherwise.
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ARTICLE VII
DEFAULT
SECTION 7.01. Master Servicer Events of Default.
"Master Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Master Servicer to remit to the Trustee
for distribution to the Certificateholders any payment (other than a
P&I Advance required to be made from its own funds on any Master
Servicer Remittance Date pursuant to Section 4.03) required to be made
under the terms of the Certificates and this Agreement which continues
unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Depositor or the
Trustee (in which case notice shall be provided by telecopy), or to the
Master Servicer, the Depositor and the Trustee by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any of the covenants or
agreements on the part of the Master Servicer contained in the
Certificates or in this Agreement which continues unremedied for a
period of 30 days after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Depositor or the Trustee, or
to the Master Servicer, the Depositor and the Trustee by the Holders of
Certificates entitled to at least 25% of the Voting Rights and (ii)
actual knowledge of such failure by a Servicing Officer of the Master
Servicer; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and if such proceeding is being contested by the Master
Servicer in good faith such decree or order shall have remained in
force undischarged or unstayed for a period of 60 consecutive days or
results in the entry of an order for relief or any such adjudication or
appointment; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Master Servicer or of or relating to all or
substantially all of its property; or
(v) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency
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or reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) any failure of the Master Servicer to make any P&I
Advance on any Master Servicer Remittance Date required to be made from
its own funds pursuant to Section 4.03 which continues unremedied for a
period of one Business Day after the date upon which written notice of
such failure (which notice the Trustee must provide by 3:00 p.m. New
York time on the Business Day following the Master Servicer Remittance
Date), requiring the same to be remedied, shall have been given to the
Master Servicer by the Trustee.
If a Master Servicer Event of Default described in clauses (i)
through (v) of this Section shall occur, then, and in each and every such case,
so long as such Master Servicer Event of Default shall not have been remedied,
the Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of Voting Rights, the Trustee shall, by
notice in writing to the Master Servicer and the Special Servicer (and to the
Depositor if given by the Trustee or to the Trustee if given by the Depositor),
terminate all of the rights and obligations of the Master Servicer in its
capacity as a Master Servicer under this Agreement, to the extent permitted by
law, and in and to the Mortgage Loans and the proceeds thereof. If a Master
Servicer Event of Default described in clause (vi) hereof shall occur, the
Trustee shall, by notice in writing to the Master Servicer and the Depositor,
terminate all of the rights and obligations of the Master Servicer in its
capacity as Master Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof. On or after the receipt by the Master Servicer
of such written notice, all authority and power of the Master Servicer under
this Agreement, whether with respect to the Certificates (other than as a Holder
of any Certificate) or the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section and, without
limitation, the Trustee is hereby authorized and empowered, as attorney-in-fact
or otherwise, to execute and deliver on behalf of and at the expense of the
Master Servicer, any and all documents and other instruments and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer agrees, at its sole cost and expense, promptly
(and in any event no later than ten Business Days subsequent to such notice) to
provide the Trustee with all documents and records requested by it to enable it
to assume the Master Servicer's functions under this Agreement, and to cooperate
with the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights under this Agreement, including, without limitation,
the transfer within one Business Day to the Trustee for administration by it of
all cash amounts which at the time shall be or should have been credited by the
Master Servicer to the Collection Account held by or on behalf of the Master
Servicer, the Distribution Account or any REO Account or Servicing Account held
by or on behalf of the Master Servicer or thereafter be received with respect to
the Mortgage Loans or any REO Property serviced by the Master Servicer
(PROVIDED, HOWEVER, that the Master Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of P&I Advances or otherwise,
and shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination, with respect to events occurring prior to
such termination). For purposes of this Section 7.01, the Trustee shall not be
deemed to have knowledge of a Master Servicer Event of Default unless a
Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless written
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notice of any event which is in fact such a Master Servicer Event of Default is
received by the Trustee and such notice references the Certificates, the Trust
Fund or this Agreement.
The Trustee shall be entitled to be reimbursed by the Master
Servicer (or by the Trust Fund if the Master Servicer is unable to fulfill its
obligations hereunder) for all costs associated with the transfer of servicing
from the predecessor master servicer, including without limitation, any costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to service the Mortgage Loans properly and
effectively.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination, the Trustee shall be the successor in all respects to the Master
Servicer in its capacity as Master Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto and arising thereafter
placed on the Master Servicer (except for any representations or warranties of
the Master Servicer under this Agreement, the responsibilities, duties and
liabilities contained in Section 2.03(c) and its obligation to deposit amounts
in respect of losses pursuant to Section 3.12) by the terms and provisions
hereof including, without limitation, the Master Servicer's obligations to make
P&I Advances pursuant to Section 4.03; PROVIDED, HOWEVER, that if the Trustee is
prohibited by law or regulation from obligating itself to make advances
regarding delinquent mortgage loans, then the Trustee shall not be obligated to
make P&I Advances pursuant to Section 4.03; and provided further, that any
failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by Section 7.01 shall not be
considered a default by the Trustee as successor to the Master Servicer
hereunder. As compensation therefor, the Trustee shall be entitled to the
Servicing Fees and all funds relating to the Mortgage Loans to which the Master
Servicer would have been entitled if it had continued to act hereunder (other
than amounts which were due or would become due to the Master Servicer prior to
its termination or resignation). Notwithstanding the above and subject to the
next paragraph, the Trustee may, if it shall be unwilling to so act, or shall,
if it is unable to so act or if it is prohibited by law from making advances
regarding delinquent mortgage loans, or if the Holders of Certificates entitled
to at least 51% of the Voting Rights so request in writing to the Trustee,
promptly appoint or petition a court of competent jurisdiction to appoint, an
established mortgage loan servicing institution acceptable to the Rating Agency
and having a net worth of not less than $15,000,000 as the successor to the
Master Servicer under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer under this
Agreement. No appointment of a successor to the Master Servicer under this
Agreement shall be effective until the assumption by the successor of all of the
Master Servicer's responsibilities, duties and liabilities hereunder. In
connection with such appointment and assumption described herein, the Trustee
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; PROVIDED,
HOWEVER, that no such compensation shall be in excess of that permitted the
Master Servicer as such hereunder. The Depositor, the Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Pending appointment of a successor to the Master
Servicer under this Agreement, the Trustee shall act in such capacity as
hereinabove provided.
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Upon removal or resignation of the Master Servicer, the
Trustee, with the cooperation of the Depositor, (x) shall solicit bids for a
successor Master Servicer as described below and (y) pending the appointment of
a successor Master Servicer as a result of soliciting such bids, shall serve as
Master Servicer of the Mortgage Loans serviced by such predecessor Master
Servicer. The Trustee shall solicit, by public announcement, bids from housing
and home finance institutions, banks and mortgage servicing institutions meeting
the qualifications set forth above (including the Trustee or any affiliate
thereof). Such public announcement shall specify that the successor Master
Servicer shall be entitled to the servicing compensation agreed upon between the
Trustee, the successor Master Servicer and the Depositor; PROVIDED, HOWEVER,
that no such fee shall exceed the related Servicing Fee. Within thirty days
after any such public announcement, the Trustee, with the cooperation of the
Depositor, shall negotiate in good faith and effect the sale, transfer and
assignment of the servicing rights and responsibilities hereunder to the
qualified party submitting the highest satisfactory bid as to the price they
will pay to obtain such servicing. The Trustee upon receipt of the purchase
price shall pay such purchase price to the Master Servicer being so removed,
after deducting from any sum received by the Trustee from the successor to the
Master Servicer in respect of such sale, transfer and assignment all costs and
expenses of any public announcement and of any sale, transfer and assignment of
the servicing rights and responsibilities reasonably incurred hereunder. After
such deductions, the remainder of such sum shall be paid by the Trustee to the
Master Servicer at the time of such sale.
(b) In connection with the termination or resignation of the
Master Servicer hereunder, either (i) the successor Master Servicer, including
the Trustee if the Trustee is acting as successor Master Servicer, shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the Mortgage Loans that are registered with
MERS, in which case the predecessor Master Servicer shall cooperate with the
successor Master Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor Master Servicer as necessary under MERS'
rules and regulations, or (ii) the predecessor Master Servicer shall cooperate
with the successor Master Servicer in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
successor Master Servicer. The predecessor Master Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Master Servicer (if a Person other than the Trustee is acting as
successor Master Servicer) shall bear any and all fees of MERS, costs of
preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this Section 7.02(b).
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of the Master Servicer pursuant to
Section 7.01 above or any appointment of a successor to the Master Servicer
pursuant to Section 7.02 above, the Trustee shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register.
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(b) Not later than the later of 60 days after the occurrence
of any event, which constitutes or which, with notice or lapse of time or both,
would constitute a Master Servicer Event of Default or five days after a
Responsible Officer of the Trustee becomes aware of the occurrence of such an
event, the Trustee shall transmit by mail to all Holders of Certificates notice
of each such occurrence, unless such default or Master Servicer Event of Default
shall have been cured or waived.
SECTION 7.04. Waiver of Master Servicer Events of Default.
Subject to Section 11.09(d), the Holders representing at least
66% of the Voting Rights evidenced by all Classes of Certificates affected by
any default or Master Servicer Event of Default hereunder may waive such default
or Master Servicer Event of Default; PROVIDED, HOWEVER, that a default or Master
Servicer Event of Default under clause (i) or (vi) of Section 7.01 may be waived
only by all of the Holders of the Regular Certificates. Upon any such waiver of
a default or Master Servicer Event of Default, such default or Master Servicer
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Master Servicer Event of Default or impair any right consequent
thereon except to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Master Servicer
Event of Default and after the curing of all Master Servicer Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. During a Master Servicer Event
of Default, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs. Any permissive right of the Trustee
enumerated in this Agreement shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to it, which are specifically required to be furnished pursuant to any provision
of this Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, it shall take such
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to its satisfaction, it will provide notice thereof
to the Certificateholders.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct; PROVIDED, HOWEVER, that:
(i) Prior to the occurrence of a Master Servicer Event of
Default, and after the curing of all such Master Servicer Events of
Default which may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee
that conform to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for any error
of judgment made in good faith by a Responsible Officer or Responsible
Officers unless it shall be proved that it was negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy available
to the it or exercising any trust or power conferred upon it, under
this Agreement; and
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(iv) The Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default unless a Responsible
Officer of the Trustee shall have received written notice thereof or a
Responsible Officer of the Trustee shall have actual knowledge thereof.
In the absence of receipt of such notice or actual knowledge, the
Trustee may conclusively assume there is no default.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee and any director, officer, employee or agent
of the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; provided that,
subject to Section 8.02(a)(ix), nothing contained in this clause (iii)
shall relieve the Trustee of the obligation, upon the occurrence of a
Master Servicer Event of Default (which has not been cured or waived),
to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) Prior to the occurrence of a Master Servicer Event of
Default hereunder and after the curing of all Master Servicer Events of
Default which may have occurred, the Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Holders of Certificates entitled
to at least 25% of the Voting Rights; PROVIDED, HOWEVER, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee not reasonably assured
to the Trustee by such Certificateholders, the Trustee may require
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reasonable indemnity against such cost, expense, or liability from such
Certificateholders as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, affiliates, accountants or attorneys, and the Trustee
shall not be responsible for any negligence or willful misconduct on
the part of such agents, affiliates, accountants or attorneys appointed
by it with due care;
(vii) The Trustee shall not be personally liable for any loss
resulting from the investment of funds held in the Collection Account
at the direction of the Master Servicer pursuant to Section 3.12;
(viii) Any request or direction of the Depositor, the Master
Servicer or the Certificateholders mentioned herein shall be
sufficiently evidenced in writing;
(ix) the Trustee shall not be required to risk or expend its
own funds or otherwise incur any financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers
hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it;
(x) the rights of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act;
(xi) anything to the contrary in this Agreement
notwithstanding, in no event shall the Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits) even if the Trustee has
been advised of the likelihood of such loss or damage and regardless of
the form of action; and
(xii) the Trustee shall have no duty to see to any recording,
filing or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing
a security interest, or to see to the maintenance of any such recording
or filing or depositing of any thereof.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it
without the possession of any of the Certificates, or the production
thereof at the trial or other proceeding relating thereto, and any such
suit, action or proceeding instituted by the Trustee shall be brought
in its name for the benefit of all the Holders of such Certificates,
subject to the provisions of this Agreement.
SECTION 8.03. Trustee not Liable for Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates (other
than the signature of the Trustee, the authentication of the Trustee on the
Certificates, the acknowledgments of the Trustee contained in Article II and the
representations and warranties of the Trustee in Section 8.13) shall
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be taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement (other than as
specifically set forth with respect to such party in Section 8.13) or of the
Certificates (other than the signature of the Trustee and authentication of the
Certificate Registrar on the Certificates) or of any Mortgage Loan or related
document or of MERS or the MERS(R) System. The Trustee shall not be accountable
for the use or application by the Depositor of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor, the Master Servicer or the Special Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account by the
Master Servicer or the Special Servicer, other than any funds held by or on
behalf of the Trustee in accordance with Section 3.10.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual capacity or any other capacity
may become the owner or pledgee of Certificates with the same rights it would
have if it were not Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
(a) The Trustee shall withdraw from the Distribution Account
on each Distribution Date and pay to itself the Trustee Fee and any income and
gain realized from the investment of funds deposited in the Distribution
Account.
The Trustee and any director, officer, employee or agent of
the Trustee shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense (not including expenses, disbursements and advances
incurred or made by the Trustee, including the compensation and the expenses and
disbursements of its agents and counsel, in the ordinary course of the Trustee's
performance in accordance with the provisions of this Agreement) incurred by the
Trustee in connection with any claim or legal action or any pending or
threatened claim or legal action arising out of or in connection with the
acceptance or administration of its obligations and duties under this Agreement,
other than any loss, liability or expense (i) for which the Trustee is
indemnified by the Master Servicer or the Special Servicer, (ii) that
constitutes a specific liability of the Trustee pursuant to Section 10.01(c) or
(iii) any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder or as a result of a
breach of the Trustee's obligations under Article X hereof. Any amounts payable
to the Trustee, or any director, officer, employee or agent of the Trustee in
respect of the indemnification provided by this paragraph (a), or pursuant to
any other right of reimbursement from the Trust Fund that the Trustee or any
director, officer, employee or agent of the Trustee may have hereunder in its
capacity as such, may be withdrawn by the Trustee from the Distribution Account
at any time.
(b) The Master Servicer agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense resulting from a
breach of the Master Servicer's obligations and duties under this Agreement.
Such indemnity shall survive the termination or discharge of this Agreement and
the resignation or removal of the Trustee. Any payment under this Section
8.05(b) made by the Master Servicer to the Trustee shall be from the Master
Servicer's own funds, without reimbursement from the Trust Fund therefor.
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(c) The Master Servicer shall pay any annual rating agency
fees of the Rating Agencies for ongoing surveillance from its own funds without
right of reimbursement.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
an association (other than the Depositor, the Seller, the Master Servicer or any
Affiliate of the foregoing) organized and doing business under the laws of any
state or the United States of America, and authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or association publishes reports of conditions at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
conditions so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Depositor, the
Master Servicer and the Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders, the Trustee and the Master Servicer by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed, and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders, the Trustee and the Master Servicer by the
Depositor.
The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the Certificateholders and the Master Servicer by the
Depositor.
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Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor and the Trustee, and to
its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements, as well as all
moneys, held by it hereunder and the Depositor and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 and the appointment of such
successor trustee shall not result in a downgrading of any Class of Certificates
by the Rating Agency, as evidenced by a letter from the Rating Agency.
Upon acceptance of appointment by a successor trustee as
provided in this Section, the Depositor shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register. If the Depositor fails to mail such notice
within 10 days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation or association into which the Trustee may be
merged or converted or with which it may be consolidated or any corporation or
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or association succeeding to the
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation or association shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of REMIC I or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as cotrustee or co-trustees, jointly with the Trustee, or
separate trustee or separate
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trustees, of all or any part of REMIC I, and to vest in such Person or Persons,
in such capacity, such title to REMIC I, or any part thereof, and, subject to
the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case a
Master Servicer Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title to
REMIC I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trust conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. [intentionally omitted].
SECTION 8.12. Appointment of Office or Agency.
The Trustee will appoint an office or agency in the City of
St. Xxxx, Minnesota where the Certificates may be surrendered for registration
of transfer or exchange, and presented for final distribution, and where notices
and demands to or upon the Trustee in respect of the Certificates and this
Agreement may be served.
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SECTION 8.13. Representations and Warranties.
The Trustee hereby represents and warrants to the Master
Servicer and the Depositor, as of the Closing Date, that:
(i) It is duly organized, validly existing and in good
standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by it, and
the performance and compliance with the terms of this Agreement by it,
will not violate its articles of association or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) It has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order
or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority,
which violation, in its good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the it to
perform its obligations under this Agreement or the financial condition
of it.
(vi) No litigation is pending or, to the best of its
knowledge, threatened against it which would prohibit it from entering
into this Agreement or, in its good faith reasonable judgment, is
likely to materially and adversely affect either the ability of it to
perform its obligations under this Agreement or the financial condition
of it.
SECTION 8.14. Special Servicing Agreement.
The Trustee is hereby directed to enter into the Special
Servicing Agreement and to perform the duties and obligations provided for
therein. In entering into the Special Servicing Agreement, and in performing any
duties or obligations or taking any actions thereunder, the Trustee will be
doing so as Trustee under this Agreement, and will be entitled to all of the
rights, protections and indemnities provided in this Agreement in connection
with its serving as Trustee hereunder. In
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furtherance of the foregoing, the Special Servicing Agreement shall be deemed to
constitute a part of this Agreement for purposes of this Article VIII.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
the Trust Fund.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer and
the Trustee with respect to the Mortgage Loans (other than the obligations of
the Master Servicer to the Trustee pursuant to Section 8.05 and of the Master
Servicer to provide for and the Trustee to make payments to the Holders of the
related Class(es) of Certificates as hereinafter set forth) shall terminate upon
payment to the Certificateholders and the deposit of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid or deposited on the
Distribution Date coinciding with or following the earlier to occur of (i) the
purchase by the Master Servicer of all Mortgage Loans and related REO Property
remaining in REMIC I, (ii) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; PROVIDED, HOWEVER, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof. The
purchase by the Master Servicer of all the Mortgage Loans and related REO
Property remaining in REMIC I shall be at a price (the "Termination Price")
equal to the greater of (A) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus the appraised value of each REO Property, if
any, included in REMIC I, such appraisal to be conducted by an appraiser
mutually agreed upon by the Master Servicer and the Trustee in their reasonable
discretion and (B) the aggregate fair market value of all of the assets in REMIC
I (as determined by the Master Servicer, with the consent of the Trustee, as of
the close of business on the third Business Day next preceding the date upon
which notice of any such termination is furnished to Certificateholders pursuant
to the third paragraph of this Section 9.01).
(b) The Master Servicer shall have the right to purchase all
of the Mortgage Loans and each REO Property remaining in REMIC I pursuant to
clause (i) of the preceding paragraph no later than the Determination Date in
the month immediately preceding the Distribution Date on which the Certificates
will be retired; provided, however, that the Master Servicer, as provided above,
may elect to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I pursuant to clause (i) above only if the aggregate Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and each REO Property remaining in REMIC I at the time of such election
is reduced to less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut- off Date. For federal income tax purposes, the
purchase by the Master Servicer of all Mortgage Loans and all REO Properties in
REMIC I is intended to facilitate a redemption of the Certificates pursuant to a
"cleanup call" within the meaning of Treasury regulation section 1.860G-2(j).
Notwithstanding the foregoing, the Master Servicer shall have the right to
transfer, sell or assign its rights to purchase all of the Mortgage Loans and
each REO Property remaining in REMIC I.
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(c) Notice of the liquidation of the Certificates shall be
given promptly by the Trustee by letter to Certificateholders mailed (a) in the
event such notice is given in connection with the purchase of the Mortgage Loans
and each REO Property remaining in REMIC I by the Master Servicer, not earlier
than the 15th day and not later than the 25th day of the month next preceding
the month of the final distribution on the Certificates or (b) otherwise during
the month of such final distribution on or before the Determination Date in such
month, in each case specifying (i) the Distribution Date upon which REMIC I will
terminate and final payment of the Certificates will be made upon presentation
and surrender of the Certificates at the office of the Trustee therein
designated, (ii) the amount of any such final payment, (iii) that no interest
shall accrue in respect of the Certificates from and after the Interest Accrual
Period relating to the final Distribution Date therefor and (iv) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office of the Trustee. In the event such notice is given in connection with the
purchase of all of the Mortgage Loans and each REO Property remaining in REMIC I
by the Master Servicer, the Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account not later than the related Master Servicer
Remittance Date of the month in which such distribution will be made an amount
in immediately available funds equal to the Termination Price. Upon
certification to the Trustee by a Servicing Officer of the making of such final
deposit, the Trustee shall promptly release or cause to be released to the
Master Servicer the Mortgage Files for the remaining Mortgage Loans in REMIC I,
and the Trustee shall execute all assignments, endorsements and other
instruments necessary to effectuate such transfer.
(d) Upon presentation of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates the
amount otherwise distributable on such Distribution Date in accordance with
Section 4.01 in respect of the Certificates so presented and surrendered. Any
funds not distributed to any Holder or Holders of Certificates being retired on
such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held in trust by
the Trustee and credited to the account of the appropriate non-tendering Holder
or Holders. If any Certificates as to which notice has been given pursuant to
this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee
shall, directly or through an agent, mail a final notice to remaining related
non-tendering Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in the trust funds.
If within one year after the final notice any such Certificates shall not have
been surrendered for cancellation, the Trustee shall pay to Citigroup Global
Markets Inc. all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section 9.01.
Immediately following the deposit of funds in trust hereunder
in respect of the Certificates, the Trust Fund shall terminate.
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SECTION 9.02. Additional Termination Requirements.
(a) In the event that the Master Servicer purchases all the
Mortgage Loans and each REO Property, the Trust Fund shall be
terminated in accordance with the following additional requirements (or
in connection with the final payment on or other liquidation of the
last Mortgage Loan or REO Property remaining in REMIC I, the additional
requirement specified in clause (i) below):
(i) The Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to REMIC I's final Tax
Return pursuant to Treasury regulation Section 1.860F-1, and such
termination shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder, as
evidenced by an Opinion of Counsel obtained at the expense of the
Master Servicer;
(ii) During such 90-day liquidation period, and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Master Servicer
for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Residual Certificates
all cash on hand in REMIC I (other than cash retained to meet claims),
and the Trust Fund shall terminate at that time.
(b) At the expense of the Master Servicer (or in the event of
termination under Section 9.01(a)(ii), at the expense of the Trustee),
the Trustee shall prepare or cause to be prepared the documentation
required in connection with the adoption of a plan of liquidation for
each Trust REMIC pursuant to this Section 9.02.
(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation
period for each Trust REMIC, which authorization shall be binding upon
all successor Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall elect to treat each Trust REMIC as a
REMIC under the Code and, if necessary, under applicable state law. Such
election shall be made by the Trustee on Form 1066 or other appropriate federal
tax or information return or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. For the purposes of the REMIC elections in respect of each Trust REMIC,
the REMIC I Regular Interests shall be designated as the Regular Interests in
REMIC I and the Class R-I Interest shall be designated as the sole class of
Residual Interests in REMIC I, the REMIC II Regular Interests shall be
designated as the Regular Interests in REMIC II and the Class R-II Interest
shall be designated as the sole class of Residual Interests in REMIC II and the
Certificates (other than the Class R Certificates) shall be designated as the
Regular Interests in REMIC III and the Class R-III Interest shall be designated
as the sole class of Residual Interests in REMIC III. The Trustee shall not
permit the creation of any "interests" (within the meaning of Section 860G of
the Code) in any Trust REMIC other than the interests represented by the
Certificates.
(b) The Closing Date is hereby designated as the "Startup Day"
within the meaning of Section 860G(a)(9) of the Code of each Trust REMIC.
(c) The Trustee shall pay out of its own funds, without any
right of reimbursement, any and all expenses relating to any tax audit of the
Trust Fund (including, but not limited to, any professional fees or any
administrative or judicial proceedings with respect to any Trust REMIC that
involve the Internal Revenue Service or state tax authorities), other than the
expense of obtaining any tax related Opinion of Counsel as specified herein. The
Trustee, as agent for each Trust REMIC's tax matters person, shall (i) act on
behalf of the Trust Fund in relation to any tax matter or controversy involving
any Trust REMIC and (ii) represent the Trust Fund in any administrative or
judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The holder of the largest Percentage
Interest of Residual Certificates shall be designated, in the manner provided
under Treasury regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of each Trust REMIC. By their
acceptance thereof, the holder of the largest Percentage Interest of the
Residual Certificates hereby agrees to irrevocably appoint the Trustee or an
Affiliate as its agent to perform all of the duties of the tax matters person
for the Trust Fund.
(d) The Trustee shall prepare, sign and file all of the Tax
Returns in respect of each Trust REMIC. The expenses of preparing and filing
such returns shall be borne by the Trustee without any right of reimbursement
therefor. The Master Servicer shall provide on a timely basis to the Trustee or
its designee such information with respect to the assets of the Trust Fund as is
in its possession and reasonably required by the Trustee to enable it to perform
its obligations under this Article.
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(e) The Trustee shall perform on behalf of each Trust REMIC
all reporting and other tax compliance duties that are the responsibility of
such Trust REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, as required by the Code, the REMIC Provisions
or other such compliance guidance, the Trustee shall provide (i) to any
Transferor of a Residual Certificate such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to any
Person who is not a Permitted Transferee, (ii) to the Certificateholders such
information or reports as are required by the Code or the REMIC Provisions
including reports relating to interest, original issue discount and market
discount or premium (using the Prepayment Assumption as required) and (iii) to
the Internal Revenue Service the name, title, address and telephone number of
the person who will serve as the representative of each Trust REMIC. The Master
Servicer shall provide on a timely basis to the Trustee such information with
respect to the assets of the Trust Fund, including, without limitation, the
Mortgage Loans, as is in its possession and reasonably required by the Trustee
to enable it to perform its obligations under this subsection. In addition, the
Depositor shall provide or cause to be provided to the Trustee, within ten (10)
days after the Closing Date, all information or data that the Trustee reasonably
determines to be relevant for tax purposes as to the valuations and issue prices
of the Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The Master Servicer and the Trustee shall take such action
and shall cause each Trust REMIC to take such action as shall be necessary to
create or maintain the status thereof as a REMIC under the REMIC Provisions. The
Master Servicer and the Trustee shall not take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of any Trust REMIC as a REMIC or (ii) result in
the imposition of a tax upon the Trust Fund (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code)
(either such event, an "Adverse REMIC Event") unless the Trustee has received an
Opinion of Counsel, addressed to the Trustee (at the expense of the party
seeking to take such action but in no event at the expense of the Trustee, to
the extent the Trustee is taking such action on behalf of the
Certificateholders) to the effect that the contemplated action will not, with
respect to any Trust REMIC, endanger such status or result in the imposition of
such a tax, nor shall the Master Servicer take or fail to take any action
(whether or not authorized hereunder) as to which the Trustee has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to any Trust REMIC or the respective assets of
each, or causing any Trust REMIC to take any action, which is not contemplated
under the terms of this Agreement, the Master Servicer will consult with the
Trustee or its designee, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to any Trust REMIC, and the
Master Servicer shall not take any such action or cause any Trust REMIC to take
any such action as to which the Trustee has advised it in writing that an
Adverse REMIC Event could occur. The Trustee may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking to
take the action not permitted by this Agreement, but in no event shall such cost
be an expense of the Trustee (to the extent the Trustee is taking such action on
behalf of the Certificateholders). At all times as may be required by the Code,
the Trustee will ensure that substantially all of the assets of each Trust REMIC
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will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the
Code and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of any Trust REMIC as defined in Section 860F(a)(2) of the Code,
on the "net income from foreclosure property" of REMIC I as defined in Section
860G(c) of the Code, on any contributions to any Trust REMIC after the Startup
Day therefor pursuant to Section 860G(d) of the Code, or any other tax is
imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Trustee pursuant to Section 10.03 hereof,
if such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article X, (ii) to the Master Servicer pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Article X,
or otherwise (iii) against amounts on deposit in the Distribution Account and
shall be paid by withdrawal therefrom.
(h) On or before April 15th of each calendar year, commencing
April 15, 2005, the Trustee shall deliver to the Master Servicer and each Rating
Agency a certificate from a Responsible Officer of the Trustee stating the
Trustee's compliance with this Article X (without regard to the actions of any
Person other than the Trustee).
(i) The Trustee shall, for federal income tax purposes,
maintain books and records with respect to each Trust REMIC on a calendar year
and on an accrual basis.
(j) Following the Startup Day, the Trustee shall not accept
any contributions of assets to any Trust REMIC other than in connection with any
Qualified Substitute Mortgage Loan delivered in accordance with Section 2.03
unless it shall have received an Opinion of Counsel to the effect that the
inclusion of such assets in such Trust REMIC will not cause any Trust REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding or
subject any Trust REMIC to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) Neither the Trustee nor the Master Servicer shall enter
into any arrangement by which any Trust REMIC will receive a fee or other
compensation for services nor permit any Trust REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Prohibited Transactions and Activities.
None of the Depositor, the Master Servicer or the Trustee
shall sell, dispose of or substitute for any of the Mortgage Loans (except in
connection with (i) the foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of any Trust REMIC, (iii) the
termination of any Trust REMIC pursuant to Article IX of this Agreement, (iv) a
substitution pursuant to Article II of this Agreement or (v) a purchase of
Mortgage Loans pursuant to Article II or III of this Agreement), nor acquire any
assets for any Trust REMIC (other than REO Property acquired in respect of a
defaulted Mortgage Loan), nor sell or dispose of any investments in the
Collection Account or the Distribution
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Account for gain, nor accept any contributions to any Trust REMIC after the
Closing Date (other than a Qualified Substitute Mortgage Loan delivered in
accordance with Section 2.03), unless it has received an Opinion of Counsel,
addressed to the Trustee (at the expense of the party seeking to cause such
sale, disposition, substitution, acquisition or contribution but in no event at
the expense of the Trustee, to the extent the Trustee is taking such action on
behalf of the Certificateholders) that such sale, disposition, substitution,
acquisition or contribution will not (a) affect adversely the status of any
Trust REMIC as a REMIC or (b) cause any Trust REMIC to be subject to a tax on
"prohibited transactions" or "contributions" pursuant to the REMIC Provisions.
SECTION 10.03. Master Servicer and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the
Depositor and the Master Servicer for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Master Servicer as a result of a breach of the
Trustee's covenants set forth in this Article X.
(b) The Master Servicer agrees to indemnify the Trust Fund,
the Depositor and the Trustee for any taxes and costs including, without
limitation, any reasonable attorneys' fees imposed on or incurred by the Trust
Fund, the Depositor or the Trustee, as a result of a breach of the Master
Servicer's covenants set forth in this Article X.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
This Agreement may be amended from time to time by the
Depositor, the Master Servicer and the Trustee without the consent of any of the
Certificateholders, (i) to cure any ambiguity or defect, (ii) to correct, modify
or supplement any provisions herein (including to give effect to the
expectations of Certificateholders), (iii) to amend the provisions of Section
4.07 or (iv) to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with the provisions
of this Agreement, provided that such action shall not adversely affect in any
material respect the interests of any Certificateholder, as evidenced by either
(a) an Opinion of Counsel delivered to the Trustee or (b) written notice from
the Rating Agencies that such action will not result in the reduction or
withdrawal of the rating of any outstanding Class of Certificates with respect
to which it is a Rating Agency. No amendment shall be deemed to adversely affect
in any material respect the interests of any Certificateholder who shall have
consented thereto, and no Opinion of Counsel shall be required to address the
effect of any such amendment on any such consenting Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates entitled to at least 66% of the Voting Rights for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates in a
manner, other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing at least 66% of the Voting Rights
allocated to such Class, or (iii) modify the consents required by the
immediately preceding clauses (i) and (ii) without the consent of the Holders of
all Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor or the
Master Servicer or any Affiliate thereof shall be entitled to Voting Rights with
respect to matters affecting such Certificates.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel to the effect that such amendment will
not result in the imposition of any tax on any Trust REMIC pursuant to the REMIC
Provisions or cause any Trust REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding.
Promptly after the execution of any such amendment the Trustee
shall furnish a copy of such amendment to each Certificateholder.
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It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund) satisfactory to the Trustee that such
amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with.
The cost of any Opinion of Counsel to be delivered pursuant to this
Section 11.01 shall be borne by the Person seeking the related amendment, but in
no event shall such Opinion of Counsel be an expense of the Trustee, to the
extent the Trustee is taking such action on behalf of the Certificateholders.
Notwithstanding the foregoing, the Trustee may, but shall not
be obligated to, enter into any amendment pursuant to this Section that affects
its rights, duties and immunities under this Agreement or otherwise.
SECTION 11.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Certificateholders, but
only upon direction of the Trustee accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of any
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of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless (i)
such Holder previously shall have given to the Trustee a written notice of
default and of the continuance thereof, as hereinbefore provided, and (ii) the
Holders of Certificates entitled to at least 25% of the Voting Rights shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 15 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 11.04. Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 11.05. Notices.
All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when received if personally
delivered at or mailed by first class mail, postage prepaid, or by express
delivery service or delivered in any other manner specified herein, to (a) in
the case of the Depositor, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Mortgage Finance Group (telecopy number (000) 000-0000), or such
other address or telecopy number as may hereafter be furnished to the Master
Servicer and the Trustee in writing by the Depositor, (b) in the case of the
Master Servicer, National City Mortgage Co., 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000, Attention: Xxxx Xxxx Xxxxxxxx (telecopy number 937-910-3725), or such
other address or telecopy number as may hereafter be furnished to the Trustee
and the Depositor in writing by the Master Servicer, and (c) in the case of the
Trustee, U.S. Bank National Association, 00 Xxxxxxxxxx Xxxxxx, XX-XX-XX0X, Xx.
Xxxx, Xxxxxxxxx, 00000-0000, Attention: Structured Finance/CMLTI 2004-NCM1
(telecopy number (000) 000-0000), or such other address or telecopy number as
may hereafter be furnished to the Master Servicer and the Depositor in writing
by the Trustee. Any notice required or permitted to be given to a
Certificateholder shall be given by first
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class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given when mailed,
whether or not the Certificateholder receives such notice. A copy of any notice
required to be telecopied hereunder also shall be mailed to the appropriate
party in the manner set forth above.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Notice to Rating Agency.
The Trustee shall use its best efforts promptly to provide
notice to the Rating Agency with respect to each of the following of which it
has actual knowledge:
(a) Any material change or amendment to this Agreement;
(b) The occurrence of any Master Servicer Event of Default
that has not been cured or waived;
(c) The resignation or termination of the Master Servicer or
the Trustee;
(d) The repurchase or substitution of Mortgage Loans pursuant
to or as contemplated by Section 2.03;
(e) The final payment to the Holders of any Class of
Certificates;
(f) Any change in the location of the Collection Account or
the Distribution Account;
(g) Any event that would result in the inability of the
Trustee, were it to succeed as Master Servicer, to make advances
regarding delinquent Mortgage Loans; and
(h) The filing of any claim under the Master Servicer's
blanket bond and errors and omissions insurance policy required by
Section 3.14 or the cancellation or material modification of coverage
under any such instrument.
In addition, the Trustee shall promptly furnish to the Rating
Agency copies of each report to Certificateholders described in Section 4.02 and
the Master Servicer, as required pursuant to Section 3.20 and Section 3.21,
shall promptly furnish to the Rating Agency copies of the following:
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1. Each annual statement as to compliance described in Section
3.20; and
2. Each annual independent public accountants' servicing
report described in Section 3.21.
Any such notice pursuant to this Section 11.07 shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
to Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Surveillance Group, and Fitch Ratings, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other addresses as each such
Rating Agency may designate in writing to the parties hereto.
SECTION 11.08. Article and Section References.
All article and section references used in this Agreement,
unless otherwise provided, are to articles and sections in this Agreement.
SECTION 11.09. Grant of Security Interest.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Depositor to the Trustee be, and be
construed as, a sale of the Mortgage Loans by the Depositor and not a pledge of
the Mortgage Loans by the Depositor to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Depositor,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt
or other obligation of the Depositor and (b)(1) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
Uniform Commercial Code as in effect from time to time in the State of New York;
(2) the conveyance provided for in Section 2.01 hereof shall be deemed to be a
grant by the Depositor to the Trustee of a security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account and the Distribution Account,
whether in the form of cash, instruments, securities or other property; (3) the
obligations secured by such security agreement shall be deemed to be all of the
Depositor's obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to the
Mortgage Loans and the Trust Fund; and (4) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee a
security interest in the Mortgage Loans and all other property described in
clause (2) of the preceding sentence, for the purpose of securing to the Trustee
the performance by the Depositor of the obligations described in clause (3) of
the preceding sentence. Notwithstanding the foregoing, the parties hereto intend
the conveyance pursuant to Section 2.01 to be a true, absolute
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and unconditional sale of the Mortgage Loans and assets constituting the Trust
Fund by the Depositor to the Trustee.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized, in each case as of the day and year first above
written.
CITIGROUP MORTGAGE LOAN TRUST INC.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
NATIONAL CITY MORTGAGE CO.,
as Master Servicer
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
U.S. BANK NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of June 2004, before me, a notary public in
and for said State, personally appeared Xxxxxxx X. Xxxxx, known to me to be a(n)
A.V.P. of Citigroup Mortgage Loan Trust Inc., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxx
-------------------
Notary Public
[Notarial Seal]
STATE OF OHIO )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 28th day of June 2004, before me, a notary public in
and for said State, personally appeared Xxxxx X. Xxxxxxx, known to me to be a
Senior Vice President of National City Mortgage Co., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxx
------------------------
Notary Public
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF XXXXXX )
On the 29th day of June 2004, before me, a notary public in
and for said State, personally appeared Xxxxxxx X. Xxxxx, known to me to be a
Vice President of U.S. Bank National Association, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxxx
-----------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
-----------
FORM OF CLASS IA-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IA-1 Certificates as of the Issue Date:
Pass-Through Rate: 5.50% per annum $79,594,000.00
Cut-off Date and date of Pooling and Denomination: $79,594,000.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G FP 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-1-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IA-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IA-1 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IA-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-1-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-1-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Bbalance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-1-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IA-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IA-2 Certificates as of the Issue Date:
Pass-Through Rate: 6.50% per annum $ 62,176,000.00
Cut-off Date and date of Pooling and Denomination: $ 62,176,000.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: July 26, 2004
CUSIP:17307G FQ 6
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-2-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IA-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IA-2 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IA-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-2-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-2-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-2-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-2-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IA-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IA-3 Certificates as of the Issue Date:
Pass-Through Rate: 6.75% per annum $11,105,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $11,105,000.00
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G FR 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-3-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IA-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IA-3 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortage Loan Trust, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IA-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-3-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-3-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-3-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-3-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IIA-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IIA-1 Certificates as of the Issue Date:
Pass-Through Rate: 5.50% per annum $126,231,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $126,231,000.00
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G FS 2
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-4-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IIA-1 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IIA-1 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortage Loan Trust, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IIA-1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-4-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-4-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-4-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-4-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IIA-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IIA-2 Certificates as of the Issue Date:
Pass-Through Rate: 6.00% per annum $63,671,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $63,671,000.00
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G FT 0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-5-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IIA-2 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IIA-2 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortage Loan Trust, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IIA-2 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-5-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-5-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-5-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-5-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IIA-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IIA-3 Certificates as of the Issue Date:
Pass-Through Rate: 6.75% per annum $38,164,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $38,164,000.00
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G FU 7
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-6-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IIA-3 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IIA-3 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortage Loan Trust, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IIA-3 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-6-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-6-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-6-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-6-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-6-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IIIA-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IIIA-1 Certificates as of the Issue Date:
Pass-Through Rate: 5.00% per annum $43,432,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $43,432,000.00
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G XX 0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-7-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IIIA-1 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IIIA-1 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortage Loan Trust, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IIIA-1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-7-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-7-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-7-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-7-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-7-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IIIA-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IIIA-2 Certificates as of the Issue Date:
Pass-Through Rate: 5.75% per annum $14,138,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $14,138,000.00
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G FW 3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-8-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IIIA-2 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IIIA-2 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortage Loan Trust, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IIIA-2 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-8-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-8-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-8-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-8-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-8-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS IVA-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class IVA-1 Certificates as of the Issue Date:
Pass-Through Rate: 6.75% per annum $13,656,000.00
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $13,656,000.00
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G FX 1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-9-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class IVA-1 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class IVA-1 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortage Loan Trust, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class IVA-1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-9-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-9-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-9-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-9-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-9-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-9-7
EXHIBIT A-10
------------
FORM OF CLASS XS-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 2004-NCM1 Initial Notional Amount of the Class XS-1
Certificates as of the Issue Date:
Pass-Through Rate: 6.75% per annum $159,179.30
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Denomination: $159,179.30
First Distribution Date: July 26, 2004 Master Servicer: National City Mortgage Co.
No. 1 Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G FY 9
A-10-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Notional Amount of the Class XS-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
XS-1 Certificates in REMIC I created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Citigroup Mortgage
Loan Trust Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement), the Master Servicer and the Trustee, a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class XS-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
A-10-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates equal to the denomination
specified on the face hereof divided by the aggregate Notional Amount of the
Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-10-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-10-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-10-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-10-7
EXHIBIT A-11
------------
FORM OF CLASS XS-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 2004-NCM1 Initial Notional Amount of the Class XS-2
Certificates as of the Issue Date:
Pass-Through Rate: 6.75% per annum $571,138.32
Cut-off Date and date of Pooling and Denomination: $571,138.32
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G FZ 6
A-11-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
Citigroup Mortgage Loan Trust Inc.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Notional Amount of the Class XS-2 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
XS-2 Certificates in REMIC I created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Citigroup Mortgage
Loan Trust Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement), the Master Servicer and the Trustee, a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class XS-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-11-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Notional Amount of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-11-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-11-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-11-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-11-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-11-7
EXHIBIT A-12
------------
FORM OF CLASS XS-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 2004-NCM1 Initial Notional Amount of the Class XS-3
Certificates as of the Issue Date: $125,705.23
Pass-Through Rate: 5.75% per annum
Denomination: $125,705.23
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004 Trustee: U.S. Bank National Association
No. 1 Issue Date: June 29, 2004
CUSIP: 17307G GA 0
A-12-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Notional Amount of the Class XS-3 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
XS-3 Certificates in REMIC I created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Citigroup Mortgage
Loan Trust Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement), the Master Servicer and the Trustee, a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class XS-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-12-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Notional Amount of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-12-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-12-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-12-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-12-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-12-7
EXHIBIT A-13
------------
FORM OF CLASS XS-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 2004-NCM1 Initial Notional Amount of the Class XS-4
Certificates as of the Issue Date: $240,856.81
Pass-Through Rate: 6.75% per annum
Denomination: $240,856.81
Cut-off Date and date of Pooling and
Servicing Agreement: June 1, 2004 Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004 Trustee: U.S. Bank National Association
No. 1 Issue Date: June 29, 2004
CUSIP: 17307G GB 8
A-13-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Notional Amount of the Class XS-4 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
XS-4 Certificates in REMIC I created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Citigroup Mortgage
Loan Trust Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement), the Master Servicer and the Trustee, a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class XS-4 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-13-2
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Notional Amount of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to
A-13-3
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from REMIC I of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from REMIC I all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-13-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-13-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-13-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-13-7
EXHIBIT A-14
------------
FORM OF CLASS PO-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class PO-1 Certificates as of the Issue Date:
Cut-off Date and date of Pooling and $820,853.09
Servicing Agreement: June 1, 2004
Denomination: $820,853.09
First Distribution Date: July 26, 2004
Master Servicer: National City Mortgage Co.
No. 1
Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G GC 6
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-14-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class PO-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class PO-1 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class PO-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate does not have a Pass-Through Rate and is not
entitled to any distributions of interest.
A-14-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-14-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-14-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. Bank National Association,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. Bank National Association,
as Trustee
By:______________________________
Authorized Signatory
A-14-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-14-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-14-7
EXHIBIT A-15
------------
FORM OF CLASS PO-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 2004-NCM1 Certificate Principal Balance of the Class
PO-2 Certificates as of the Issue Date:
Cut-off Date and date of Pooling and $3,338,891.59
Servicing Agreement: June 1, 2004
Denomination: $3,338,891.59
First Distribution Date: July 26, 2004
Master Servicer: National City Mortgage Co.
No. 1
Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G GD 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-15-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede &Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class PO-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class PO-2 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class PO-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate does not have a Pass-Through Rate and is not
entitled to any distributions of interest.
A-15-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-15-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-15-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-15-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-15-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-15-7
EXHIBIT A-16
------------
FORM OF CLASS PO-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class PO-3 Certificates as of the Issue Date:
Cut-off Date and date of Pooling and $1,880,290.67
Servicing Agreement: June 1, 2004
Denomination: $1,880,290.67
First Distribution Date: July 26, 2004
Master Servicer: National City Mortgage Co.
No. 1
Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G GE 2
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-16-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class PO-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class PO-3 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class PO-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate does not have a Pass-Through Rate and is not
entitled to any distributions of interest.
A-16-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-16-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-16-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-16-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-16-7
EXHIBIT A-17
------------
FORM OF CLASS PO-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class PO-4 Certificates as of the Issue Date:
Cut-off Date and date of Pooling and $1,098,536.87
Servicing Agreement: June 1, 2004
Denomination: $1,098,536.87
First Distribution Date: July 26, 2004
Master Servicer: National City Mortgage Co.
No. 1
Trustee: U.S. Bank National Association
Issue Date: June 29, 2004
CUSIP: 17307G GF 9
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-17-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class PO-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class PO-4 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class PO-4 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate does not have a Pass-Through Rate and is not
entitled to any distributions of interest.
A-17-2
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-17-3
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-17-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-17-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-17-7
EXHIBIT A-18
------------
FORM OF CLASS B-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ANY PURCHASER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATION SET FORTH IN SECTION 5.02(c) OF THE POOLING AND
SERVICING AGREEMENT.
A-18-1
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class B-1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $8,926,000.00
Cut-off Date and date of Pooling and Denomination: $8,926,000.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G GG 7
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-18-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-1Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-1 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-1 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-18-3
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
Any purchaser of this Certificate shall be deemed to have made
the representation set forth in section 5.02 (c) of the Agreement.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-18-4
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-18-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-18-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-18-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-18-8
EXHIBIT A-19
------------
FORM OF CLASS B-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE
CLASS B-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
ANY PURCHASER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATION SET FORTH IN SECTION 5.02(c) OF THE POOLING AND
SERVICING AGREEMENT.
A-19-1
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class B-2 Certificates as of the Issue Date:
Pass-Through Rate: Variable $5,066,000.00
Cut-off Date and date of Pooling and Denomination: $5,066,000.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G GH 5
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-19-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-2 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-2 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-19-3
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
Any purchaser of this Certificate shall be deemed to have made
the representation set forth in section 5.02(c) of the Agreement.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-19-4
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-19-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-19-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-19-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-19-8
EXHIBIT A-20
------------
FORM OF CLASS B-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS
B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES TO THE EXTENT DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY PURCHASER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATION SET FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
A-20-1
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class B-3 Certificates as of the Issue Date:
Pass-Through Rate: Variable $3,136,000.00
Cut-off Date and date of Pooling and Denomination: $3,136,000.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G GJ 1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-20-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-3 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-3 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-20-3
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
Any purchaser of this Certificate shall be deemed to have made
the representation set forth in section 5.02(c) of the Agreement.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
A-20-4
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-20-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
By:______________________________
Authorized Signatory
A-20-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-20-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-20-8
EXHIBIT A-21
------------
FORM OF CLASS B-4 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS
B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE CLASS B-3
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT
TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-21-1
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class B-4 Certificates as of the Issue Date:
Pass-Through Rate: Variable $ 1,688,000.00
Cut-off Date and date of Pooling and Denomination: $ 1,688,000.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G GK 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-21-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-4 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-4 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-21-3
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Master Servicer in their respective capacities as such), together with
copies of the written certification(s) of the Holder of the Certificate desiring
to effect the transfer and/or such Holder's prospective transferee upon which
such Opinion of Counsel is based. None of the Depositor or the Trustee is
obligated to register or qualify the Class of Certificates specified on the face
hereof under the 1933 Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of such
Certificates without
A-21-4
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Master Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-21-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-21-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-21-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-21-8
EXHIBIT A-22
------------
FORM OF CLASS B-5 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS
B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3
CERTIFICATES AND THE CLASS B-4 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT
TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-22-1
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class B-5 Certificates as of the Issue Date:
Pass-Through Rate: Variable $1,448,000.00
Cut-off Date and date of Pooling and Denomination: $1,448,000.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G GL 6
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-22-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-5 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-5 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-5 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-22-3
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Master Servicer in their respective capacities as such), together with
copies of the written certification(s) of the Holder of the Certificate desiring
to effect the transfer and/or such Holder's prospective transferee upon which
such Opinion of Counsel is based. None of the Depositor or the Trustee is
obligated to register or qualify the Class of Certificates specified on the face
hereof under the 1933 Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of such
Certificates without
A-22-4
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Master Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-22-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-22-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-22-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-22-8
EXHIBIT A-23
------------
FORM OF CLASS B-6 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS
B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3
CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE CLASS B-5 CERTIFICATES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT
TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-23-1
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class B-6 Certificates as of the Issue Date:
Pass-Through Rate: Variable $2,894,858.00
Cut-off Date and date of Pooling and Denomination: $2,894,858.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
CUSIP: 17307G GM 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
A-23-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-6 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-6 Certificates in REMIC I created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Citigroup
Mortgage Loan Trust Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Master Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-5 Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-23-3
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Master Servicer in their respective capacities as such), together with
copies of the written certification(s) of the Holder of the Certificate desiring
to effect the transfer and/or such Holder's prospective transferee upon which
such Opinion of Counsel is based. None of the Depositor or the Trustee is
obligated to register or qualify the Class of Certificates specified on the face
hereof under the 1933 Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of such
Certificates without
A-23-4
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Master Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-23-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: Junee __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:______________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-23-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-23-8
EXHIBIT A-24
------------
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED
STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE
TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY
POSSESSION THEREOF, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER
THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS EXEMPT
FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE, (3) ANY
ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY SUCH
PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL
HEREINAFTER BE REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN
AGENT OF A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH
TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND (II)
SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN
AGENT OF A
A-24-1
DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED
TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH
HOLDER OF THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF
SECTION 5.02(d) OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION IS PROHIBITED
FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS CERTIFICATE.
Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the
Class R Certificates as of the Issue Date:
Pass-Through Rate: 5.50% $100.00
Cut-off Date and date of Pooling and Denomination: $100.00
Servicing Agreement: June 1, 2004
Master Servicer: National City Mortgage Co.
First Distribution Date: July 26, 2004
Trustee: U.S. Bank National Association
No. 1
Issue Date: June 29, 2004
A-24-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed
and sold by
CITIGROUP MORTGAGE LOAN TRUST INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
CITIGROUP MORTGAGE LOAN TRUST INC., THE MASTER SERVICER, THE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Citigroup Global Markets Inc. is the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
R Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class R Certificates in REMIC I created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the
A-24-3
"Certificates") and representing a Percentage Interest in the Class of
Certificates equal to the denomination specified on the face hereof divided by
the aggregate Percentage Interest of the Class of Certificates specified on the
face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
A-24-4
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall be
deemed to be of no legal force or effect whatsoever and such Person shall not be
deemed to be a Certificateholder for any purpose, including, but not limited to,
the receipt of distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The Depositor, the Master Servicer, the Trustee and any agent
of the Depositor, the Master Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor, and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-24-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: June __, 2004
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
A-24-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if survivorship and not as _____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-24-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
_______________________________________________________________________________
_______________________________________________________________ for the account
of ___________________________, account number ___________________________, or,
if mailed by check, to_________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _________________________________, the assignee
named above, or ________________________________________, as its agent.
A-24-8
EXHIBIT B
---------
[Reserved]
B-1
EXHIBIT C-1
-----------
FORM OF TRUSTEE'S INITIAL CERTIFICATION
____________, 2003
Citigroup Mortgage Loan Trust Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx Criswell215 Xxxxxxx Street
Re: Pooling and Servicing Agreement, dated as of June 1, 2004,
among Citigroup Mortgage Loan Trust Inc., National City
Mortgage Co. and U.S. Bank National Association as Trustee,
Mortgage Pass-Through Certificates, Series 2004-NCM1
----------------------------------------------------
Ladies and Gentlemen:
Attached is the Trustee's preliminary exceptions in accordance
with Section 2.02 of the referenced Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
As to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in the exception report annexed thereto as not being covered by such
certification), (i) all documents required to be delivered to it pursuant
Section 2.01 of the Agreement are in its possession, (ii) such documents have
been reviewed by it and have not been mutilated, damaged or torn and relate to
such Mortgage Loan and (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (i), (iii) and (xiv) of the Mortgage Loan Schedule
accurately reflects information set forth in the Mortgage File.
The Trustee is under no duty or obligation to inspect, review
or examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
U.S. Bank National Association,
as Trustee
By:______________________________
Name:
Title:
C-1-1
EXHIBIT C-2
FORM OF TRUSTEE'S FINAL CERTIFICATION
[Date]
Citigroup Mortgage Loan Trust Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx Criswell215 Xxxxxxx Street
Re: Pooling and Servicing Agreement, dated as of June 1,
2004, among Citigroup Mortgage Loan Trust Inc.,
National City Mortgage Co. and U.S. Bank National
Association as Trustee, Mortgage Pass-Through
Certificates, Series 2004-NCM1
------------------------------
Ladies and Gentlemen:
In accordance with Section 2.01 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto), it or a
custodian on its behalf has received:
(i) the original recorded Mortgage, with evidence of recording
thereon or a copy of the Mortgage certified by the public recording
office in those jurisdictions where the public recording office retains
the original and the original recorded power of attorney, if the
Mortgage was executed pursuant to a power of attorney, with evidence of
recording thereon or a copy of the power of attorney certified by the
public recording office where the public recording office retains the
original;
(ii) an original Assignment of the Mortgage executed by the
Originator or the Originator's successor in interest in blank, together
with any intervening assignments and showing a complete chain of title
from the original mortgagee named under the Mortgage to the Originator
or the Originator's successor in interest in blank or an Affiliate of
the Originator;
(iii) the original lender's title insurance policy, together
with all endorsements or riders which were issued with or subsequent to
the issuance of such policy, insuring the priority of the Mortgage as a
first lien on the Mortgaged Property represented therein as a fee
interest vested in the Mortgagor, or in the event such original title
policy is unavailable, a written commitment or uniform binder or
preliminary report of title issued by the title
C-2-1
insurance or escrow company or an attorney's title opinion, if
customary in the related jurisdiction where the Mortgaged Property is
located.
The Trustee is under no duty or obligation to inspect, review
or examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
U.S. Bank National Association,
as Trustee
By:________________________________
Name:
Title:
C-2-2
EXHIBIT C-3
FORM OF TRUSTEE'S RECEIPT OF MORTGAGE NOTES
[date]
Citigroup Mortgage Loan Trust Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx Criswell215 Xxxxxxx Street
Re: Pooling and Servicing Agreement, dated as of June 1,
2004, among Citigroup Mortgage Loan Trust Inc.,
National City Mortgage Co. and U.S. Bank National
Association as Trustee, Mortgage Pass-Through
Certificates, Series 2004-NCM1
------------------------------
Ladies and Gentlemen:
In accordance with Section 2.01 of the above-captioned Pooling
and Servicing Agreement, we hereby acknowledge the receipt of the original
Mortgage Notes (a copy of which is attached hereto as Exhibit 1) with any
exceptions thereto listed on Exhibit 2.
U.S. Bank National Association,
as Trustee
By:________________________________
Name:
Title:
C-3-1
EXHIBIT D
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
D-1
================================================================================
CITIGROUP MORTGAGE LOAN TRUST INC.
as Purchaser
and
NATIONAL CITY MORTGAGE CO.,
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Fixed Rate Mortgage Loans
Citigroup Mortgage Loan Trust Inc.
Citigroup Mortgage Loan Trust 2004-NCM1
Mortgage Pass-Through Certificates, Series 2004-NCM1
Dated as of June 28, 2004
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................................................-1-
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01 Sale of Mortgage Loans........................................................................-2-
Section 2.02 Obligations of Seller Upon Sale...............................................................-2-
Section 2.03 Payment of Purchase Price for the Mortgage Loans..............................................-5-
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Seller Representations and Warranties Relating to the Mortgage Loans..........................-5-
Section 3.02 Seller Representations and Warranties........................................................-16-
ARTICLE IV
SELLER'S COVENANTS
Section 4.01 Covenants of the Seller......................................................................-19-
ARTICLE V
[RESERVED]
ARTICLE VI
TERMINATION
Section 6.01 Termination..................................................................................-19-
-i-
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment....................................................................................-19-
Section 7.02 Governing Law................................................................................-20-
Section 7.03 Notices......................................................................................-20-
Section 7.04 Severability of Provisions...................................................................-20-
Section 7.05 Counterparts.................................................................................-20-
Section 7.06 Further Agreements...........................................................................-20-
Section 7.07 Intention of the Parties.....................................................................-21-
Section 7.08 Successors and Assigns; Assignment of this Agreement.........................................-21-
Section 7.09 Survival. ..................................................................................-21-
Schedule I Mortgage Loan Schedule
-ii-
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of June 28, 2004,
(the "AGREEMENT"), between NATIONAL CITY MORTGAGE CO. ("National City" or the
"Seller") and CITIGROUP MORTGAGE LOAN TRUST INC. (the "PURCHASER").
W I T N E S S E T H:
--------------------
WHEREAS, the Seller is the owner of either the notes or other
evidence of indebtedness (the "MORTGAGE NOTES") or other evidence of ownership
so indicated on Schedule I hereto and the other documents or instruments
constituting the Mortgage File (collectively, the "MORTGAGE LOANS"); and
WHEREAS, the Seller, as of the date hereof, owns the mortgages
(the "MORTGAGES") on the properties (the "MORTGAGED PROPERTIES") securing such
Mortgage Loans, including rights (a) to any property acquired by foreclosure or
deed in lieu of foreclosure or otherwise and (b) to the proceeds of any
insurance policies covering the Mortgage Loans or the Mortgaged Properties or
the obligors on the Mortgage Loans; and
WHEREAS, the parties hereto desire that the Seller sell the
Mortgage Loans to the Purchaser and the Purchaser purchase the Mortgage Loans
from the Seller pursuant to the terms of this Agreement; and
WHEREAS, pursuant to the terms of a Pooling and Servicing
Agreement, dated as of June 1, 2004 (the "Pooling and Servicing Agreement"),
among the Purchaser as depositor, National City as master servicer (in such
capacity, the "Master Servicer") and U.S. Bank National Association as trustee
(the "Trustee"), the Purchaser will convey the Mortgage Loans to the Trustee.
The Citigroup Mortgage Loan Trust Inc., Citigroup Mortgage Loan Trust 2004-NCM1,
Mortgage Pass-Through Certificates, Series 2004-NCM1 (the "Certificates") will
evidence the entire beneficial ownership interest in the Trust Fund created
pursuant to the Pooling and Servicing Agreement; and
WHEREAS, The Certificates, other than the Class B-4
Certificates, the Class B-5 Certificates and the Class B-6 Certificates which
are referred to collectively as the "Private Certificates," will be offered to
the public pursuant to a prospectus and prospectus supplement (together, the
"Prospectus"), and the Private Certificates will be offered for sale in
transactions exempt from the registration requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT") pursuant to a private placement
memorandum (the "Private Placement Memorandum").
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. All capitalized terms used but not
defined herein and below shall have the meanings assigned thereto in the Pooling
and Servicing Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01 SALE OF MORTGAGE LOANS.
The Seller does hereby agree to and does hereby sell, assign,
set over, and otherwise convey to the Purchaser, without recourse, on the
Closing Date, all its right, title and interest, in and to (i) each Mortgage
Loan and the related Cut-off Date Principal Balance thereof, including any
Related Documents, (ii) all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) security interests securing the
Mortgage Loans and property which secured such Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any
insurance policies in respect of the Mortgage Loans; and (v) all proceeds of any
of the foregoing.
Section 2.02 OBLIGATIONS OF SELLER UPON SALE.
(a) In connection with any transfer pursuant to Section 2.01
hereof, the Seller further agrees, at its own expense, on or prior to the
Closing Date, (x) to indicate in its books and records that the Mortgage Loans
have been sold to the Purchaser pursuant to this Agreement and (y) to deliver to
the Purchaser and the Trustee a computer file containing a true and complete
list of all the Mortgage Loans specifying, among other things, for each Mortgage
Loan, as of the Cut-off Date, its account number and Cut-off Date Principal
Balance. Such file (the "MORTGAGE LOAN SCHEDULE") which is included as Schedule
1 to the Pooling and Servicing Agreement, shall also be marked as Schedule I to
this Agreement and is hereby incorporated into and made a part of this
Agreement.
In connection with such transfer and assignment, the Seller,
on behalf of the Purchaser, does hereby deliver or cause to be delivered to, and
deposit with the Trustee, or its designated agent (the "Custodian"), the
following documents or instruments with respect to each Mortgage Loan (a
"Mortgage File") so transferred and assigned:
(i) the original Mortgage Note, endorsed either (A) in blank
or (B) in the following form: "Pay to the order of U.S. Bank National
Association, as Trustee under the Pooling and Servicing Agreement,
dated as of June 1, 2004, among Citigroup Mortgage Loan Trust Inc.,
National City Mortgage Co. and U.S. Bank National Association, without
recourse," or with respect to any lost Mortgage Note, an original lost
note affidavit, together with a copy of the related Mortgage Note;
(ii) the original Mortgage (noting the presence of the MIN of
the Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan) with evidence of recording
thereon, and the original recorded power of attorney, if the Mortgage
was executed pursuant to a power of attorney, with evidence of
recording thereon or, if such Mortgage or power of attorney has been
submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original submitted for
recording;
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(iii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment of Mortgage, in form and substance
acceptable for recording, either (A) in blank or (B) to " U.S. Bank
National Association, as Trustee under the Pooling and Servicing
Agreement, dated as of June 1, 2004, among Citigroup Mortgage Loan
Trust Inc., National City Mortgage Co. and U.S. Bank National
Association, without recourse,"
(iv) an original or a certified copy of any intervening
assignment of Mortgage showing a complete chain of assignments from the
originator to the Person assigning the Mortgage to the Trustee (or to
MERS, if the Mortgage Loan is registered on the MERS(R) System and
noting the presence of the MIN) as contemplated by the immediately
preceding clause (iii);
(v) the original mortgagee policy of title insurance or
attorney's opinion of title and abstract of title; and
(vi) the original or copies of each assumption, modification,
consolidation or extension agreement, with evidence of recording
thereon.
With respect to a maximum of 1.0% of the Mortgage Loans,
calculated by reference to the outstanding principal balance of the Mortgage
Loans as of the Cut-off Date, if any original Mortgage Note referred to in
clause (i) above cannot be located, the obligations of the Seller to deliver
such documents shall be deemed to be satisfied upon delivery to the Purchaser of
a photocopy of such Mortgage Note, if available, with a lost note affidavit in a
form satisfactory to the Purchaser. If any of the original Mortgage Notes for
which a lost note affidavit was delivered to the Purchaser is subsequently
located, such original Mortgage Note shall be delivered to the Purchaser within
three Business Days.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Seller further agrees that it will cause,
within 30 Business Days after the Closing Date, the MERS(R) System to indicate
that such Mortgage Loans have been assigned to the Trustee in accordance with
this Agreement for the benefit of the Certificateholders by including (or
deleting, in the case of Mortgage Loans which are repurchased in accordance with
this Agreement) in such computer files (a) the code in the field which
identifies the specific Trustee and (b) the code in the field "Pool Field" which
identifies the series of the Certificates issued in connection with such
Mortgage Loans. The Seller further agrees that it will not alter the codes
referenced in this paragraph with respect to any Mortgage Loan during the term
of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
If any of the documents referred to in Section 2.02(ii), (iii)
or (iv) above has as of the Closing Date been submitted for recording but either
(x) has not been returned from the applicable public recording office or (y) has
been lost or such public recording office has retained the original of such
document, the obligations of the Seller to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Trustee or the Custodian, no
later than the Closing Date, of a copy of each such document certified by the
Seller in the case of (x) above or the applicable public recording office in the
case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Seller,
delivery to the Trustee or the
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Custodian, promptly upon receipt thereof, of either the original or a copy of
such document certified by the applicable public recording office to be a true
and complete copy of the original. The Seller shall deliver or cause to be
delivered to the Trustee or the Custodian promptly upon receipt thereof any
other documents constituting a part of a Mortgage File received with respect to
any Mortgage Loan, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
Upon discovery or receipt of notice of any materially
defective document in, or that a document is missing from, a Mortgage File, the
Seller shall have 90 days to cure such defect or to deliver such missing
document to the Trustee or the Custodian. If the Seller does not cure such
defect or deliver such missing document within such time period, the Seller
shall either repurchase or substitute for such Mortgage Loan in accordance with
Section 3.01 hereof.
The Purchaser hereby acknowledges its acceptance of all right,
title and interest to the Mortgage Loans and other property, now existing and
hereafter created, conveyed to it pursuant to Section 2.01.
The parties hereto intend that the transaction set forth
herein be a sale by the Seller to the Purchaser of all the Seller's right, title
and interest in and to the Mortgage Loans and other property described above. In
the event the transaction set forth herein is deemed not to be a sale, the
Seller hereby grants to the Purchaser a security interest in all of the Seller's
right, title and interest in, to and under the Mortgage Loans and other property
described above, whether now existing or hereafter created, to secure all of the
Seller's obligations hereunder; and this Agreement shall constitute a security
agreement under applicable law.
(b) The Seller shall cause the Assignments of Mortgage which
were delivered in blank to be completed and (except with respect to any Mortgage
Loan for which MERS is identified on the Mortgage or on a properly recorded
assignment of the Mortgage as the mortgagee of record) shall cause all
Assignments referred to in Section 2.02(iii) hereof and, to the extent
necessary, in Section 2.02(iv) hereof to be recorded. The Seller shall be
required to deliver or cause to be delivered such assignments for recording
within 30 days of the Closing Date. The Seller shall furnish the Trustee, or its
designated agent, with a copy of each assignment of Mortgage submitted for
recording. In the event that any such Assignment is lost or returned unrecorded
because of a defect therein, the Seller shall promptly have a substitute
Assignment prepared or have such defect cured, as the case may be, and
thereafter cause each such Assignment to be duly recorded.
Notwithstanding the foregoing, the Assignments of Mortgage
shall not be required to be submitted for recording with respect to any Mortgage
Loan in any jurisdiction where the Rating Agencies do not require recordation in
order to receive the ratings on the rated Certificates at the time of their
initial issuance; provided, however, the Assignments of Mortgage shall be
submitted for recording in the manner described above, at no expense to the
Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable
direction by the Holders of Certificates entitled to at least [25]% of the
Voting Rights, (ii) the occurrence of a Master Servicer Event of Termination,
(iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Seller, (iv) the occurrence of a servicing transfer as described in Section 6.04
or in Article VII of the Pooling and Servicing Agreement, (v) with respect to
any particular Mortgage Loan, upon the occurrence of a bankruptcy,
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insolvency or foreclosure relating to the Mortgagor under the related Mortgage
and (vi) with respect to any particular Mortgage Loan that has defaulted, upon
such defaulted Mortgage Loan becoming 90 days or more Delinquent or at such
other time as the recordation of the Assignment of Mortgage relating to such
defaulted Mortgage Loan shall customarily be effected, in connection with the
foreclosure thereupon, by the Master Servicer in accordance with the servicing
standards set forth in the Pooling and Servicing Agreement. In the event of (i)
through (vi) set forth in the immediately preceding sentence, the Seller at its
own expense shall deliver or cause to be delivered such assignments for
recording as provided above, promptly and in any event within 30 days following
such event.
Section 2.03 PAYMENT OF PURCHASE PRICE FOR THE MORTGAGE LOANS.
In consideration of the sale of the Mortgage Loans from the
Seller to the Purchaser on the Closing Date, the Purchaser agrees to pay to the
Seller on the Closing Date by transfer of immediately available funds, as
directed by the Seller, an amount equal to $__________ in respect of the
Mortgage Loans (the "PURCHASE PRICE"), net of an expense reimbursement amount of
$__________ (the "EXPENSE REIMBURSEMENT AMOUNT"). The Expense Reimbursement
Amount shall reimburse the Purchaser for the Purchaser's Securities and Exchange
Commission registration statement fees and the Purchaser's registration
statement administration fees allocable to the Trust. The Seller shall pay, and
be billed directly for, all expenses incurred by the Purchaser in connection
with the issuance of the Certificates, including, without limitation, printing
fees incurred in connection with the Prospectus and the Private Placement
Memorandum, blue sky registration fees and expenses, fees and reasonable
expenses of Purchaser's counsel, fees of the rating agencies requested to rate
the Certificates, accountant's fees and expenses and the fees and expenses of
the Trustee and other out-of-pocket costs, if any. If the Purchaser shall
determine that the Expense Reimbursement Amount is not sufficient to reimburse
the Purchaser for all expenses incurred by it that are subject to reimbursement
by the Seller hereunder as described above, the Seller shall promptly reimburse
the Purchaser for such additional amounts upon written notice by the Purchaser
to the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 SELLER REPRESENTATIONS AND WARRANTIES RELATING TO
THE MORTGAGE LOANS. The Seller hereby represents and warrants to the Purchaser,
with respect to the Mortgage Loans, that as of the Closing Date or as of such
date specifically provided herein:
(a) MORTGAGE LOANS AS DESCRIBED. The information set forth in
the related Mortgage Loan Schedule is complete, true and correct.
(b) PAYMENTS CURRENT. All payments required to be made up to
the Cut-off Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment required under the Mortgage Loan has been 30
or more days delinquent at any time in the past 12 months preceding the Cut-off
Date.
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(c) NO OUTSTANDING CHARGES. There are no defaults in complying
with the terms of the Mortgages, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid, or an escrow
of funds has been established in an amount sufficient to pay for every such item
which remains unpaid and which has been assessed but is not yet due and payable.
The Seller has not advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required under the Mortgage Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is greater, to the day
which precedes by one month the Due Date of the first installment of principal
and interest.
(d) ORIGINAL TERMS UNMODIFIED. The terms of the Mortgage Note
and Mortgage have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary to protect
the interests of the Purchaser and which has been delivered to the Custodian.
The substance of any such waiver, alteration or modification has been approved
by the issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the related Mortgage Loan
Schedule. No instrument of waiver, alteration or modification has been executed,
and no Mortgagor has been released, in whole or in part, except in connection
with an assumption agreement approved by the issuer of any related PMI Policy
and the title insurer, to the extent required by the policy, and which
assumption agreement is part of the Mortgage Loan File delivered to the
Custodian and the terms of which are reflected in the related Mortgage Loan
Schedule.
(e) NO DEFENSES. The Mortgage Loan is not subject to any right
of rescission, set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at the
time the Mortgage Loan was originated.
(f) HAZARD INSURANCE. All buildings or other improvements upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located pursuant to
insurance policies conforming to the requirements of the Pooling and Servicing
Agreement. If the Mortgaged Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available) a flood insurance
policy meeting the requirements of the current guidelines of the Federal Flood
Insurance Administration is in effect which policy conforms to the requirements
of the Pooling and Servicing Agreement. All individual insurance policies
contain a standard mortgagee clause naming the Seller and its successors and
assigns as mortgagee, and all premiums thereon have been paid. The Mortgage
obligates the Mortgagor thereunder to maintain the hazard insurance policy at
the Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance at
such Mortgagor's cost and expense, and to seek reimbursement therefor from the
Mortgagor. Where required by state law
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or regulation, the Mortgagor has been given an opportunity to choose the carrier
of the required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering the common facilities of a planned
unit development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon the consummation
of the transactions contemplated by this Agreement. The Seller has not engaged
in, and has no knowledge of the Mortgagor, any Subservicer or any prior
originator or subservicer having engaged in, any act or omission which would
impair the coverage of any such policy, the benefits of the endorsement provided
for herein, or the validity and binding effect of either, including without
limitation, no unlawful fee, unlawful commission, unlawful kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the Seller.
(g) COMPLIANCE WITH APPLICABLE LAWS. Any and all requirements
of any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws applicable to the origination and
servicing of the Mortgage Loan have been complied with and each Mortgage Loan at
the time it was made complied in all material respects with all applicable
predatory and abusive lending laws. The Seller shall maintain in its possession,
available for the Purchaser's inspection, and shall deliver to the Purchaser
upon demand, evidence of compliance with all such requirements.
(h) NO SATISFACTION OF MORTGAGE. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor.
(i) LOCATION AND TYPE OF MORTGAGED PROPERTY. The Mortgaged
Property is a fee simple property located in the state identified in the related
Mortgage Loan Schedule and consists of a parcel of real property with a detached
single family residence erected thereon, or a two- to four-family dwelling, or
an individual condominium unit in a condominium project, or an individual unit
in a planned unit development, provided, however, that any condominium project
or planned unit development shall conform with the Seller's Underwriting
Guidelines regarding such dwellings, and no residence or dwelling is a mobile
home or a manufactured dwelling that is (A) not considered real property under
applicable state law and (B) not affixed to a permanent foundation. No portion
of the Mortgaged Property is used for commercial purposes other than a home
office that would be acceptable under Xxxxxx Xxx standards.
(j) VALID FIRST LIEN. The Mortgage is a valid, subsisting,
enforceable and perfected first lien on the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property, and all additions,
alterations and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
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(1) the lien of current real property taxes and assessments not yet due
and payable;
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording
acceptable to mortgage lending institutions generally and specifically
referred to in the lender's title insurance policy delivered to the
originator of the Mortgage Loan and (i) referred to or to otherwise
considered in the appraisal made for the originator of the Mortgage
Loan or (ii) which do not adversely affect the Appraised Value of the
Mortgaged Property set forth in such appraisal; and
(3) other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security intended
to be provided by the mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and the Seller has full right to sell and assign
the same to the Purchaser. The Mortgaged Property was not, as of the date of
origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed to
secured debt or other security instrument creating a lien subordinate to the
lien of the Mortgage, except as set forth in the Mortgage Loan Schedule.
(k) VALIDITY OF MORTGAGE DOCUMENTS. The Mortgage Note and the
Mortgage are genuine, and each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other similar laws affecting generally the enforcement
of creditors' rights. All parties to the Mortgage Note and the Mortgage and any
other related agreement had legal capacity to enter into the Mortgage Loan and
to execute and deliver the Mortgage Note and the Mortgage and any other related
agreement, and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties. To the best of the Seller's knowledge, the documents,
instruments and agreements submitted for loan underwriting were not falsified.
To the best of the Seller's knowledge, no fraud was committed in connection with
the origination of the Mortgage Loan. The Seller has reviewed all of the
documents constituting the Servicing File and has made such inquiries as it
deems necessary to make and confirm the accuracy of the representations set
forth herein. To the best of the Seller's knowledge, no misrepresentation,
negligence, fraud or similar occurrence with respect to a Mortgage Loan has
taken place on the part of any person, including without limitation the
Mortgagor, any appraiser, any builder or developer, or any other party involved
in the origination of the Mortgage Loan or in the application of any insurance
in relation to such Mortgage Loan.
(l) FULL DISBURSEMENT OF PROCEEDS. The Mortgage Loan has been
closed and the proceeds of the Mortgage Loan have been fully disbursed to or for
the account of the Mortgagor and there is no requirement for future advances
thereunder. With respect to the Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with (or if such requirements as to
completion have not been met and any Mortgage Loan proceeds or other funds
remain held in escrow, then (i) such funds are held by a party not affiliated
with the Seller, (ii) the Purchaser shall not under any circumstances have any
obligation with respect to such funds and (iii) if the related borrower shall
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not meet the conditions for the release of any such escrow funds, any such funds
shall be applied on behalf of the borrower as a partial prepayment of the
Mortgage Loan). All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor is
not entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage.
(m) OWNERSHIP. The Seller is the sole owner of record and
holder of the Mortgage Loan. The Mortgage Loan is not assigned or pledged, and
the Seller has good and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan therein to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement.
(n) DOING BUSINESS. All parties which have had any interest in
the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such interest, were)
(1) in compliance with any and all applicable doing business' and licensing
requirements of the laws of the state wherein the Mortgaged Property is located,
and (2) (a) organized under the laws of such state, (b) qualified to do business
in such state, (c) federal savings and loan associations or national banks
having principal offices in such state, or (d) not doing business in such state.
(o) LTV, PMI POLICY. No Mortgage Loan has a LTV equal to or
greater than 100%. The original LTV of the Mortgage Loan either was not more
than 80% or (i) the excess over 75% is and will be insured as to payment
defaults by a PMI Policy until the LTV of such Mortgage Loan is reduced to 80%,
or (ii) is subject to an LPMI Policy, which will stay in effect for the life of
the Mortgage Loan. All provisions of such PMI Policy have been and are being
complied with, such policy is in full force and effect, and all premiums due
thereunder have been paid. No action, inaction, or event has occurred and no
state of facts exists that has, or will result in the exclusion from, denial of,
or defense to coverage. Any Mortgage Loan subject to a PMI Policy obligates the
Mortgagor thereunder to maintain the PMI Policy and to pay all premiums and
charges in connection therewith; provided, that, with respect to LPMI Loans, the
Master Servicer is obligated thereunder to maintain the LPMI Policy and to pay
all premiums and charges in connection therewith. The Mortgage Interest Rate for
the Mortgage Loan as set forth on the related Mortgage Loan Schedule is net of
any such insurance premium.
(p) TITLE INSURANCE. The Mortgage Loan is covered by either
(i) an attorney's opinion of title and abstract of title the form and substance
of which is acceptable to mortgage lending institutions making mortgage loans in
the area where the Mortgaged Property is located or (ii) an ALTA lender's title
insurance policy or other generally acceptable form of policy of insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring the Seller, its successors and
assigns, as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan (or to the extent that a Mortgage Note provides for
negative amortization, the maximum amount of negative amortization in accordance
with the Mortgage), subject only to the exceptions contained in clauses (1), (2)
and (3) of paragraph (j) of this Section 3.01. Where required by state law or
regulation, the Mortgagor has been given the
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opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in full force and
effect and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the Mortgage, including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller.
(q) NO DEFAULTS. To the best of the Seller's knowledge, there
is no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration, and neither the Seller nor
its predecessors have waived any default, breach, violation or event of
acceleration.
(r) NO MECHANICS' LIENS. To the best of the Seller's
knowledge, there are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under the
law could give rise to such liens) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of the
related Mortgage.
(s) LOCATION OF IMPROVEMENTS; NO ENCROACHMENTS. To the best of
the Seller's knowledge, all improvements which were considered in determining
the Appraised Value of the Mortgaged Property lay wholly within the boundaries
and building restriction lines of the Mortgaged Property and no improvements on
adjoining properties encroach upon the Mortgaged Property. No improvement
located on or being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation.
(t) ORIGINATION; PAYMENT TERMS. Such Mortgage Loan was
originated by the Seller, a credit union, a savings and loan association, a
savings bank, a commercial bank, a mortgage banking company or a similar banking
institution which is supervised and examined by a federal or state credit union
or banking authority, or is a mortgagee approved by HUD, or is a correspondent
approved by National City and has not been sold to any Person other than the
Seller and the Purchaser, except as evidenced by an Assignment of Mortgage. The
Mortgage Rate is the fixed interest rate set forth in the Mortgage Note. The
Mortgage Note is payable each month in equal monthly installments of principal
and interest, with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over an original
term of not more than thirty years from commencement of amortization. There is
no negative amortization.
(u) CUSTOMARY PROVISIONS. The Mortgage and the related
Mortgage Note contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and
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(ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a
Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged Property
pursuant to the proper procedures, the holder of the Mortgage Loan will be able
to deliver good and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which would interfere with
the right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage.
(v) CONFORMANCE WITH UNDERWRITING GUIDELINES. The Mortgage
Loan was underwritten in accordance with the Seller's underwriting guidelines in
effect at the time the Mortgage Loan was originated. The Mortgage Note and
Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae.
(w) OCCUPANCY OF THE MORTGAGED PROPERTY. As of the Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities. Except as otherwise stated on the Mortgage Loan
Schedule, the Mortgagor represented at the time of origination of the Mortgage
Loan that the Mortgagor would occupy the Mortgaged Property as the Mortgagor's
primary residence.
(x) NO ADDITIONAL COLLATERAL. The Mortgage Note is not and has
not been secured by any collateral except the lien of the corresponding Mortgage
and the security interest of any applicable security agreement or chattel
mortgage referred to in (j) above.
(y) DEEDS OF TRUST. In the event the Mortgage constitutes a
deed of trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor.
(z) ACCEPTABLE INVESTMENT. The Seller has no knowledge of any
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that can reasonably
be expected to cause the Mortgage Loan to become delinquent, or adversely affect
the value or marketability of the Mortgage Loan.
(aa) DELIVERY OF MORTGAGE DOCUMENTS. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered for the Mortgage Loan by the Seller under this Agreement have been
delivered to the Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File, except for such documents the originals of which have
been delivered to the Custodian.
(bb) CONDOMINIUMS/PLANNED UNIT DEVELOPMENTS. If the dwelling
on the Mortgaged Property is a condominium unit or a planned unit development
(other than a de minimus planned unit development) such condominium or planned
unit development project meets Xxxxxx Xxx and Xxxxxxx Mac eligibility
requirements.
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(cc) TRANSFER OF MORTGAGE LOANS. The Assignment of Mortgage is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located.
(dd) DUE ON SALE. The Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the Mortgagor thereunder.
(ee) CONSOLIDATION OF FUTURE ADVANCES. Any future advances
made prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan.
(ff) MORTGAGED PROPERTY UNDAMAGED. There is no proceeding
pending or, to the best of the Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property. The Mortgaged Property is in
good repair and is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty or cause of damage so as to affect
adversely the value of the Mortgaged Property as security for the Mortgage Loan
or the use for which the premises were intended.
(gg) COLLECTION PRACTICES; ESCROW DEPOSITS. The origination
practices used with respect to the Mortgage Loan were consistent with the
Seller's usual and customary origination practices, the Seller's underwriting
guidelines as described in the Prospectus and in all respects in compliance with
all applicable laws and regulations. The servicing and collection practices used
with respect to the Mortgage Loan have been consistent with the servicing
standard set forth in Section 3.01 of the Pooling and Servicing Agreement and in
all respects in compliance with all applicable laws and regulations. The
Mortgage Loan has been serviced by the Seller and any predecessor servicer in
accordance with the terms of the Mortgage Note. With respect to each Mortgage
Loan for which funds are escrowed with the Seller for the payment of taxes
and/or insurance, (A) with respect to escrow deposits and Escrow Payments, all
such payments are in the possession of the Seller and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made, (B) all Escrow Payments have been
collected in full compliance with state and federal law, (C) an escrow of funds
is not prohibited by applicable law and has been established in an amount
sufficient to pay for every item which remains unpaid and which has been
assessed but is not yet due and payable and (D) no escrow deposits or Escrow
Payments or other charges or payments due the Seller have been capitalized under
the Mortgage or the Mortgage Note and no such escrow deposits or Escrow Payments
are being held by the Seller for any work on a Mortgaged Property which has not
been completed.
(hh) APPRAISAL. The Mortgage File contains an appraisal of the
related Mortgage Property signed prior to the approval of the Mortgage Loan
application by a qualified appraiser, duly
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appointed by the Seller, who had no interest, direct or indirect in the
Mortgaged Property or in any loan made on the security thereof; and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Title XI
of the Federal Institutions Reform, Recovery, and Enforcement Act of 1989 and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated. Such appraisal is on Form 1004 or Form 2055 and
included an interior inspection.
(ii) SERVICEMEMBERS CIVIL RELIEF ACT. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act.
(jj) ENVIRONMENTAL MATTERS. The Mortgaged Property is free
from any and all toxic or hazardous substances and there exists no violation of
any local, state or federal environmental law, rule or regulation. To the best
of the Seller's knowledge, there is no pending action or proceeding directly
involving any Mortgaged Property of which the Seller is aware in which
compliance with any environmental law, rule or regulation is an issue; and to
the best of the Seller's knowledge, nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation consisting
a prerequisite to use and enjoyment of said property.
(kk) INSURANCE. The Seller has caused to be performed any and
all acts required to preserve the rights and remedies of the Purchaser in any
insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies or
interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Purchaser; No action, inaction, or event has
occurred and no state of fact exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable pool insurance policy, special hazard insurance policy, PMI Policy or
bankruptcy bond, irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by the Seller or any designee of
the Seller or any corporation in which the Seller or any officer, director, or
employee had a financial interest at the time of placement of such insurance.
(ll) REGARDING THE MORTGAGOR. The Mortgagor is (A) one or more
natural persons and/or (B) one or more trustees for an Illinois land trust or
(C) a trustee under a "living trust" and such "living trust" is in compliance
with Xxxxxx Xxx guidelines for such trusts.
(mm) HIGH COST LOANS. No Mortgage Loan is subject to the
requirements of the Home Ownership and Equity Protection Act of 1994 ("HOEPA")
and no Mortgage Loan is in violation of any state law or ordinance similar to
HOEPA. No mortgage loan in the trust is a "high cost," "high cost home,"
"covered" (excluding home loans defined as "covered home loans" pursuant to
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act of 2002), "high risk home" or "predatory" loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees).
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(nn) SIMPLE INTEREST MORTGAGE LOANS. None of the Mortgage
Loans are simple interest Mortgage Loans.
(oo) TAX SERVICE CONTRACT. The Seller has obtained a life of
loan, transferable real estate Tax Service Contract on each Mortgage Loan with
an Approved Tax Servicer Contract Provider and such contract is assignable
without penalty, premium or cost to the Purchaser.
(pp) FLOOD CERTIFICATION CONTRACT. The Seller has obtained a
life of loan, transferable flood certification contract with a nationally
recognized flood zone service provider acceptable to Purchaser for each Mortgage
Loan and such contract is assignable without penalty, premium or cost to the
Purchaser.
(qq) FICO SCORES. Each Mortgage Loan has a non-zero FICO
score.
(rr) PREPAYMENT PENALTIES ENFORCEABLE. With respect to each
Mortgage Loan that has a prepayment fee feature, each such prepayment fee is
enforceable and will be enforced by the Seller, and each prepayment penalty is
permitted pursuant to federal, state and local law. Except as otherwise set
forth in the Mortgage Loan Schedule, with respect to each Mortgage Loan that
contains a prepayment fee, such prepayment fee is at least equal to the lesser
of (A) the maximum amount permitted under applicable law and (B) six months
interest at the related Mortgage Interest Rate on the amount prepaid in excess
of 20% of the original principal balance of such Mortgage Loan.
(ss) RECORDATION. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
related Mortgagor, or is in the process of being recorded.
(tt) LEASEHOLDS. If the Mortgage Loan is secured by a
long-term residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without the
lessor's consent and the acquisition by the holder of the Mortgage of the rights
of the lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the terms
of such lease do not (a) allow the termination thereof upon the lessee's default
without the holder of the Mortgage being entitled to receive written notice of,
and opportunity to cure, such default, (b) allow the termination of the lease in
the event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice.
(uu) PAYMENT IN FULL. No Mortgage Loan was paid in full on or
prior to June 11, 2004.
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(vv) SERVICER INFORMATION. The information delivered by the
Seller to the Purchaser with respect to the Seller's loan loss, foreclosure and
delinquency experience at the twelve (12) months ended December 31, 2002 and
December 31, 2003 and at March 31, 2004 as presented in the Prospectus is true
and correct in all material respects.
(ww) DOCUMENT DELIVERY. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant hereto have been delivered in compliance
with the specific requirements hereof. With respect to each Mortgage Loan, the
Seller is in possession of a complete Mortgage File, except for such documents
as have been delivered to the Custodian.
(xx) INTEREST RATE. Interest on each Mortgage Loan is
calculated on the basis of a 360-day year consisting of twelve 30-day months.
(yy) ADVANCES; NO BUYDOWNS; NO GRADUATED PAYMENTS. Except for
two Mortgage Loans (Seller's Mortgage Loan Nos. ______ and ______), each of
which Mortgage Loans complies with Xxxxxx Mae requirements, no Mortgage Loan (A)
contains provisions pursuant to which Monthly payments are paid or partially
paid with funds deposited in any separate account established by the Seller, the
Mortgagor or (B) contains any other similar provisions which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature. No Mortgage Loan has a balloon payment feature.
(zz) CONSTRUCTION LOAN. No Mortgage Loan was made in
connection with (a) the construction or rehabilitation of a Mortgaged Property
or (b) facilitating the trade in or exchange of a Mortgaged Property.
(aaa) PREDATORY PRACTICES; BENEFIT TO MORTGAGOR. No predatory,
abusive or deceptive lending practices, including but not limited to, the
extension of credit to a mortgagor without regard for the mortgagor's ability to
repay the Mortgage Loan and the extension of credit to a mortgagor which has no
apparent benefit to the mortgagor, were employed in connection with the
origination of the Mortgage Loan.
(bbb) CONSUMER CREDIT STATUTES AND REGULATIONS. If applicable
to the Seller or any subsequent Owner, the Mortgage Loan complies with all
applicable consumer credit statutes and regulations, has been originated by a
properly licensed entity, and in all other respects, complies with all of the
material requirements of any such applicable laws.
(ccc) PREPAYMENT PENALTIES. Except as set forth on the related
Mortgage Loan Schedule, none of the Mortgage Loans are subject to a prepayment
penalty or charge. The information set forth in the Prepayment Charge Schedule
is complete, true and correct in all material respects and each prepayment
penalty or charge is permissible, enforceable and collectable under applicable
federal and state law.
(ddd) MONEY LAUNDERING. The Seller has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001
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(collectively, the "Anti-Money Laundering Laws"); the Seller has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the legitimacy of the applicable Mortgagor and
the origin of the assets used by the said Mortgagor to purchase the property in
question, and maintains, and will maintain, sufficient information to identify
the applicable Mortgagor for purposes of the Anti-Money Laundering Laws.
(eee) SERVICING. The Mortgage Loan has been serviced according
to the Seller's servicing guidelines.
(fff) QUALIFIED MORTGAGE. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G of the Code and Treas. Reg. Section
1.860G-2.
With respect to the representations and warranties set forth
in this Section 3.01 that are made to the best of the Seller's knowledge or as
to which the Seller has no knowledge, if it is discovered by the Depositor, the
Seller, the Servicer or the Trustee, as set forth in Section 2.03 of the Pooling
and Servicing Agreement, that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value of
the related Mortgage Loan or the interest therein of the Purchaser or the
Purchaser's assignee, transferee or designee for the benefit of the
Certificateholders then, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
Upon discovery by the Depositor, the Seller, the Servicer, the
Purchaser or any assignee, transferee or designee of the Purchaser of a breach
of any of the representations and warranties contained in this Section 3.01 that
materially and adversely affects the value of any Mortgage Loan or the interest
therein of the Purchaser or the Purchaser's assignee, transferee or designee for
the benefit of the Certificateholders, the party discovering the breach shall
give prompt written notice to the others and in no event later than two Business
Days from the date of such discovery. Within 90 days of the earlier of its
discovery or its receipt of notice of any such breach of a representation or
warranty, the Seller shall promptly cure such breach in all material respects,
or in the event such defect or breach cannot be cured, the Seller shall
repurchase the affected Mortgage Loan or cause the removal of such Mortgage Loan
from the Trust Fund and substitute for it one or more Eligible Substitute
Mortgage Loans, in either case, in accordance with Section 2.03 of the Pooling
and Servicing Agreement.
Upon discovery or receipt of written notice by the Seller of
any defective document in, or that a document is missing from, a Mortgage File,
which materially adversely affects the value of such Mortgage Loan or the
interest therein of the Purchaser, the Seller shall have 90 days to cure such
defect, or in the event such defect cannot be cured, the Seller shall repurchase
the affected Mortgage Loan or cause the removal of such Mortgage Loan from the
Trust Fund and substitute for it one or more Qualified Substitute Mortgage
Loans, in either case, within such time periods and in accordance with Section
2.03 of the Pooling and Servicing Agreement.
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It is understood and agreed that the representations and
warranties set forth in this Section 3.01 shall survive delivery of the
respective Mortgage Files to the Trustee or its agent, on behalf of the
Purchaser and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment.
It is understood and agreed that the obligations of the Seller
set forth in this Section 3.01 to cure, repurchase or substitute for a defective
Mortgage Loan constitute the sole remedies of the Purchaser, the
Certificateholders or the Trustee on their behalf respecting a missing or
defective document or a breach of the representations or warranties contained in
this Section 3.01.
Section 3.02 SELLER REPRESENTATIONS AND WARRANTIES. The Seller
hereby represents and warrants to the Purchaser that as of the Closing Date or
as of such date specifically provided herein:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Seller, and in any
event the Seller is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage Loan and the
servicing of such Mortgage Loan in accordance with the terms of the Pooling and
Servicing Agreement; the Seller has the full corporate power and authority to
hold each Mortgage Loan, to sell each Mortgage Loan and to execute and deliver
this Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation of the Seller;
and all requisite corporate action has been taken by the Seller to make this
Agreement valid and binding upon the Seller in accordance with its terms.
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller pursuant to this Agreement are not subject to the bulk transfer or
any similar statutory provisions in effect in any applicable jurisdiction.
(iii) Neither the execution and delivery of this Agreement,
the acquisition of the Mortgage Loans by the Seller, the sale of the Mortgage
Loans to the Purchaser or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Seller's charter or by-laws or any legal restriction or any
agreement or instrument to which the Seller is now a party or by which it is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Seller or its property is subject, or impair the
ability of the Purchaser to realize on the Mortgage Loans, or impair the value
of the Mortgage Loans.
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(iv) The Seller is an approved seller/servicer of conventional
residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities,
procedures, and experienced personnel necessary for the sound servicing of
mortgage loans of the same type as the Mortgage Loans. The Seller is in good
standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae or
Xxxxxxx Mac, and no event has occurred, including but not limited to a change in
insurance coverage, which would make the Seller unable to comply with Xxxxxx Mae
or Xxxxxxx Mac eligibility requirements or which would require notification to
either Xxxxxx Mae or Xxxxxxx Mac.
(v) The Seller does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant contained in
this Agreement. The Seller is solvent and will not be rendered insolvent by the
consummation of the transactions contemplated hereby. The sale of the Mortgage
Loans is not undertaken to hinder, delay or defraud any of the Seller's
creditors. The Seller acquired title to the Mortgage Loans in good faith,
without notice of any adverse claims.
(vi) There is no action, suit, proceeding or investigation
pending or to the best of the Seller's knowledge threatened against the Seller
which, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the right
or ability of the Seller to carry on its business substantially as now
conducted, or in any material liability on the part of the Seller, or which
would draw into question the validity of this Agreement or the Mortgage Loans or
the sale of the Mortgage Loans of any action taken or to be taken in connection
with the obligations of the Seller contemplated herein, or which would be likely
to impair materially the ability of the Seller to perform under the terms of
this Agreement.
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the Closing Date.
(viii) The Mortgage Loans were selected from among the
outstanding fixed rate one- to four-family mortgage loans in the Seller's
portfolio at the Cut-off Date underwritten to the Seller's underwriting
guidelines as described in the Prospectus and as to which the representations
and warranties set forth in Section 3.01 could be made and such selection was
not made in a manner so as to affect adversely the interests of the Purchaser.
(ix) Neither this Agreement nor any statement, report or other
document furnished or to be furnished pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading.
(x) The disposition of the Mortgage Loans shall be treated as
a sale on the books and records of the Seller. The Seller has determined that
the disposition of the Mortgage Loans pursuant to this Agreement will be
afforded sale treatment for accounting and tax purposes. The
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Seller shall maintain a complete set of books and records for the Mortgage
Loans, which shall be clearly marked to reflect the ownership of each Mortgage
Loan.
(xi) The Seller has delivered to the Purchaser financial
statements as to its last three complete fiscal years and any later quarter
ended more than 60 days prior to the execution of this Agreement. All such
financial statements fairly present the pertinent results of operations and
changes in financial position at the end of each such period of the Seller and
its subsidiaries and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto. There has been no change in the
business, operations, financial condition, properties or assets of the Seller
since the date of the Seller's financial statements that would have a material
adverse effect on its ability to perform its obligations under this Agreement.
The Seller has completed any forms requested by the Purchaser in a timely manner
and in accordance with the provided instructions.
(xii) The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans, except for
Citigroup Global Markets Inc. and the other underwriters identified in the
Prospectus.
(xiii) The Seller's decision to originate any mortgage loan or
to deny any mortgage loan application is an independent decision based upon
Seller's underwriting guidelines, and is in no way made as a result of
Purchaser's decision to purchase, or not to purchase, or the price Purchaser may
offer to pay for, any such mortgage loan, if originated.
(xiv) The consideration received by the Seller upon the sale
of the Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
ARTICLE IV
SELLER'S COVENANTS
Section 4.01 COVENANTS OF THE SELLER.
(a) The Seller hereby covenants that except for the transfer
hereunder, the Seller will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any lien on any
Mortgage Loan, or any interest therein; the Seller will notify the Trustee, as
assignee of the Purchaser, of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trustee, as assignee of the Purchaser, in, to and under the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; PROVIDED, HOWEVER, that nothing in this Section 4.01 shall prevent
or be deemed to prohibit the Seller from suffering to exist upon any of the
Mortgage Loans any liens for municipal or other local taxes and other
governmental charges if such taxes or governmental charges shall not at the time
be due and payable or if the Seller shall currently be contesting the validity
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thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
(b) The Seller hereby covenants that neither it nor any
affiliate of the Seller will directly solicit any Mortgagor hereunder to
refinance the related Mortgage Loan. For the purposes of the foregoing, neither
the Seller nor any affiliate of the Seller shall be deemed to directly solicit
any Mortgagor if the Seller responds to a request from a Mortgagor regarding a
refinancing or if the Mortgagor receives marketing materials which are generally
disseminated.
ARTICLE V
[RESERVED]
ARTICLE VI
TERMINATION
Section 6.01 TERMINATION. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate
upon the termination of the Trust Fund as provided in Section 9.01 of the
Pooling and Servicing Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 AMENDMENT. This Agreement may be amended from
time to time by the Seller and the Purchaser, by written agreement signed by the
Seller and the Purchaser.
Section 7.02 GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 7.03 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
if to the Seller:
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxx
or such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
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if to the Purchaser:
Citigroup Mortgage Loan Trust Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage Finance Group
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
Section 7.04 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 7.05 COUNTERPARTS. This Agreement may be executed in
one or more counterparts by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 7.06 FURTHER AGREEMENTS. The Purchaser and the Seller
each agree to execute and deliver to the other such additional documents,
instruments or agreements as may be necessary or reasonable and appropriate to
effectuate the purposes of this Agreement or in connection with the issuance of
any securities representing interests in, or secured by, the Mortgage Loans.
Without limiting the generality of the foregoing, as a further
inducement for the Purchaser to purchase the Mortgage Loans from the Seller, the
Seller will cooperate with the Purchaser in connection with the sale of any of
the securities representing interests in, or secured by, the Mortgage Loans. In
that connection, the Seller will provide to the Purchaser any and all
information and appropriate verification of information, whether through letters
of its auditors and counsel or otherwise, as the Purchaser shall reasonably
request and will provide to the Purchaser such additional representations and
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller as are reasonably
required in connection with such transactions and the offering of investment
grade securities rated by the Rating Agencies.
Section 7.07 INTENTION OF THE PARTIES. It is the intention of
the parties that the Purchaser is purchasing, and the Seller is selling, the
Mortgage Loans rather than the pledging of the Mortgage Loans by the Seller to
secure a loan by the Purchaser to the Seller. Accordingly, the parties hereto
each intend to treat the transaction for Federal income tax purposes and all
other purposes as a sale by the Seller and a purchase by the Purchaser of the
Mortgage Loans. The Purchaser will have the right to review the Mortgage Loans
and the related Mortgage Files to determine the characteristics of the Mortgage
Loans which will affect the Federal income tax consequences of owning the
Mortgage Loans and the Seller will cooperate with all reasonable requests made
by the Purchaser in the course of such review.
-21-
Section 7.08 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF THIS
AGREEMENT. This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller, the Purchaser and the Trustee. The obligations of the
Seller under this Agreement cannot be assigned or delegated to a third party
without the consent of the Purchaser and which consent shall be at the
Purchaser's sole discretion, except that the Purchaser acknowledges and agrees
that the Seller may assign its obligations hereunder to any Person into which
the Seller is merged or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party or any Person succeeding to the
business of the Seller. The parties hereto acknowledge that the Purchaser is
acquiring the Mortgage Loans for the purpose of contributing them to a trust
that will issue a series of certificates representing undivided interests in
such Mortgage Loans. As an inducement to the Purchaser to purchase the Mortgage
Loans, the Seller acknowledges and consents to the assignment by the Purchaser
to the Trustee of all of the Purchaser's rights against the Seller pursuant to
this Agreement insofar as such rights relate to Mortgage Loans transferred to
the Trustee and to the enforcement or exercise of any right or remedy against
the Seller pursuant to this Agreement by the Trustee. Such enforcement of a
right or remedy by the Trustee shall have the same force and effect as if the
right or remedy had been enforced or exercised by the Purchaser directly.
Section 7.09 SURVIVAL. The representations and warranties set
forth in Sections 3.01 and 3.02 hereof shall survive the purchase of the
Mortgage Loans hereunder.
-22-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed to this Mortgage Loan Purchase Agreement by their
respective officers thereunto duly authorized as of the day and year first above
written.
CITIGROUP MORTGAGE LOAN TRUST
INC. ,
as Purchaser
By:__________________________________
Name:
Title:
NATIONAL CITY MORTGAGE CO., as
Seller
By:__________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT F
---------
FORM OF INVESTMENT LETTER
[Date]
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx, 00000-0000
Attention: Structured Finance/CMLTI 2004-NCM1
Re: Citigroup Mortgage Loan Trust, Series 2004-NCM1, Mortgage
Pass-Through Certificates, Class ___, representing a ___%
Percentage Interest
---------------------------------------------------------
Ladies and Gentlemen:
In connection with the purchase from ______________________
(the "Transferor") on the date hereof of the captioned trust certificates (the
"Certificates"), _______________ (the "Transferee") hereby certifies as follows:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"1933 Act") and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement referred to below, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
All capitalized terms used but not otherwise defined herein
have the respective meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of June 1, 2004, among Citigroup Mortgage Loan Trust Inc. as
Depositor, National City Mortgage Co. as Master Servicer and U.S. Bank National
Association as Trustee, pursuant to which the Certificates were issued.
F-1
[TRANSFEREE]
By:__________________________
Name:
Title:
F-2
ANNEX 1 TO EXHIBIT F
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and U.S. Bank National Association, as Trustee,
with respect to the mortgage pass-through certificates (the "Certificates")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because (i) the Transferee
owned and/or invested on a discretionary basis $______________________1 in
securities (except for the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least
--------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities. $25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF WHICH IS ATTACHED HERETO.
F-3
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S. or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii) securities
owned but subject to a repurchase agreement and (viii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee and did not
include any of the securities referred to in the preceding paragraph. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", the
Transferee agrees that, in connection with any purchase of securities sold to
the Transferee for the account of a third party
F-4
(including any separate account) in reliance on Rule 144A, the Transferee will
only purchase for the account of a third party that at the time is a "qualified
institutional buyer" within the meaning of Rule 144A. In addition, the
Transferee agrees that the Transferee will not purchase securities for a third
party unless the Transferee has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
Dated:
____________________________________
Print Name of Transferee
By:_________________________________
Name:
Title:
F-5
ANNEX 2 TO EXHIBIT F
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and U.S. Bank National Association, as Trustee,
with respect to the mortgage pass- through certificates (the "Certificates")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the entity purchasing the
Certificates (the "Transferee") or, if the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is such an officer of the investment
adviser (the "Adviser").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as defined in Rule 144A because
(i) the Transferee is an investment company registered under the Investment
Company Act of 1940, and (ii) as marked below, the Transferee alone, or the
Transferee's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used.
____ The Transferee owned $___________________ in securities (other
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
F-6
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Dated:
___________________________________
Print Name of Transferee or Advisor
By:________________________________
Name:
Title:
IF AN ADVISER:
___________________________________
Print Name of Transferee
F-7
FORM OF TRANSFEREE REPRESENTATION LETTER
----------------------------------------
The undersigned hereby certifies on behalf of the purchaser
named below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as
defined in Rule 144A, ("Rule 144A") under the Securities Act of 1933, as
amended.
3. As of the date specified below (which is not earlier than
the last day of the Purchaser's most recent fiscal year), the amount of
"securities", computed for purposes of Rule 144A, owned and invested on a
discretionary basis by the Purchaser was in excess of $100,000,000.
Name of Purchaser
_______________________________
By:____________________________
Name:
Title:
Date of this certificate:
Date of information provided in paragraph 3
F-8
EXHIBIT G
---------
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx, 00000-0000
Attention: Structured Finance/CMLTI 2004-NCM1
Re: Citigroup Mortgage Loan Trust, Series 2004-NCM1, Mortgage
Pass-Through Certificates, Class ___, representing a ___%
Class ___ Percentage Interest
-----------------------------
Ladies and Gentlemen:
In connection with the transfer by ________________ (the
"Transferor") to ________________ (the "Transferee") of the captioned mortgage
pass-through certificates (the "Certificates"), the Transferor hereby certifies
as follows:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, (e) has taken any other action, that (in the case of each of
subclauses (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or
would render the disposition of any Certificate a violation of Section 5 of the
1933 Act or any state securities law or would require registration or
qualification pursuant thereto. The Transferor will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate. The Transferor will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of June
1, 2004, among Citigroup Mortgage Loan Trust Inc. as Depositor, National City
Mortgage Co. as Master Servicer and U.S. Bank National Association as Trustee
(the "Pooling and Servicing Agreement"), pursuant to which Pooling and Servicing
Agreement the Certificates were issued.
G-1
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By:___________________________
Name:
Title:
G-2
EXHIBIT H
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT
STATE OF ___________ )
COUNTY OF _________ )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ______________________ of
____________________________ (the "Owner") a corporation duly organized and
existing under the laws of ______________, the record owner of Citigroup
Mortgage Loan Trust, Series 2004-NCM1, Mortgage Pass-Through Certificates, Class
R Certificates, (the "Class R Certificates"), on behalf of whom I make this
affidavit and agreement. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Class R Certificates were issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of
____________, 20__ and (ii) is acquiring the Class R Certificates for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. For this purpose, a "disqualified organization"
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
or, if such transfer is through an agent (which person includes a broker,
nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that
the person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the transferee
is a Permitted Transferee and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that each of the
Class R Certificates may be a "noneconomic residual interest" within the meaning
of proposed Treasury regulations promulgated under the Code and that the
transferor of a "noneconomic residual interest" will remain liable for any taxes
due with respect to the income on such residual
H-1
interest, unless no significant purpose of the transfer is to impede the
assessment or collection of tax.
4. The Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificates if, at any time during the taxable year
of the pass-through entity, a non-Permitted Transferee is the record holder of
an interest in such entity. (For this purpose, a "pass-through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is aware that the Trustee will not register the
transfer of any Class R Certificate unless the transferee, or the transferee's
agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. The Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is
_________________.
8. The Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(in particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) which authorize
the Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02(d)); and that the Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. The Owner is not acquiring and will not transfer the Class
R Certificates in order to impede the assessment or collection of any tax.
10. The Owner anticipates that it will, so long as it holds
the Class R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class R Certificates that the
Owner intends to pay taxes associated with holding such Class R Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class R Certificates.
11. The Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class R Certificates.
12. The Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
H-2
13. The Owner is not acquiring the Class R Certificates with
the intent to transfer the Class R Certificates to any person or entity that
will not have sufficient assets to pay any taxes owed by the holder of such
Class R Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain outstanding.
14. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class R Certificate were issued and will not
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class R Certificates to
impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of the Class R Certificates; (ii) may
become insolvent or subject to a bankruptcy proceeding for so long as the Class
R Certificates remains outstanding; and (iii) is not a "Permitted Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States may be included in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
H-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
__________, 20__.
[OWNER]
By:__________________________
Name:
Title: [Vice] President
ATTEST:
By:_________________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
____________________________
Notary Public
County of __________________
State of ___________________
My Commission expires:
H-4
FORM OF TRANSFEROR AFFIDAVIT
----------------------------
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ____________________ of ____________________________
(the "Owner"), a corporation duly organized and existing under the laws of
______________, on behalf of whom I make this affidavit.
2. The Owner is not transferring the Class R Certificates (the
"Residual Certificates") to impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is
the proposed transferee (the "Purchaser") of the Residual Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as holder
of the Residual Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Residual Certificates remain
outstanding and (iii) is not a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to
the Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit F-2. The Owner does not know or
believe that any representation contained therein is false.
5. At the time of transfer, the Owner has conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Owner has determined that the Purchaser has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Owner understands that the transfer of a
Residual Certificate may not be respected for United States income tax purposes
(and the Owner may continue to be liable for United States income taxes
associated therewith) unless the Owner has conducted such an investigation.
6. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
H-5
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
___________, 20__.
[OWNER]
By:_____________________________
Name:
Title: [Vice] President
ATTEST:
By:______________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
____________________________
Notary Public
County of __________________
State of ___________________
My Commission expires:
H-6
EXHIBIT I
FORM OF STATEMENT AS TO COMPLIANCE
Citigroup Mortgage Loan Trust Inc.,
Mortgage Pass-Through Certificates, Series 2004-NCM1
I, _____________________, hereby certify that I am a duly
appointed __________________________ of National City Mortgage Co. (the "Master
Servicer"), and further certify as follows:
1. This certification is being made pursuant to the terms of
the Pooling and Servicing Agreement, dated as of June 1, 2004, (the
"Agreement"), among Citigroup Mortgage Loan Trust Inc., as depositor, the Master
Servicer, as master servicer and U.S. Bank National Association, as trustee.
2. I have reviewed the activities of the Master Servicer
during the preceding year and the Master Servicer's performance under the
Agreement and to the best of my knowledge, based on such review, the Master
Servicer has fulfilled all of its obligations under the Agreement throughout the
year.
Capitalized terms not otherwise defined herein have the
meanings set forth in the Agreement.
Dated: _____________
I-1
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of _____________.
By: _____________________________
Name:
Title:
I, _________________________, a (an) __________________ of the
Master Servicer, hereby certify that _________________ is a duly elected,
qualified, and acting _______________________ of the Master Servicer and that
the signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ______________.
By: _____________________________
Name:
Title:
I-2
EXHIBIT J-1
FORM OF CERTIFICATION
TO BE PROVIDED BY THE MASTER SERVICER WITH FORM 10-K
Certification
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of
Citigroup Mortgage Loan Trust Inc., Mortgage Pass-Through Certificates, Series
2004-NCM1;
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the servicer under the
pooling and servicing, or similar, agreement, for inclusion in these reports is
included in these reports;
4. I am responsible for reviewing the activities performed by
the servicer under the pooling and servicing, or similar, agreement and based on
my knowledge and upon the annual compliance review included in the report and
required to be delivered to the trustee in accordance with the terms of the
pooling and servicing, or similar, agreement, and except as disclosed in the
reports, the servicer has fulfilled its obligations under the servicing
agreement; and
5. The reports disclose all significant deficiencies relating
to the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the pooling and servicing, or similar,
agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: U.S. Bank
National Association, as Trustee and Xxxxxx Loan Servicing LP, as special
servicer.
By:____________________________________
Name:
Title:[_________], National City Mortgage Co.
Date:
X-0-0
XXXXXXX X-0
FORM CERTIFICATION TO BE
PROVIDED TO THE MASTER SERVICER BY THE TRUSTEE
Re: Citigroup Mortgage Loan Trust Inc.,
Mortgage Pass-Through Certificates, Series 2004-NCM1
I, [identify the certifying individual], a [title] of U.S.
Bank National Association, as Trustee of the Trust Fund, hereby certify to
National City Mortgage Co. (the "Master Servicer"), and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year [___], and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that annual report,
of the Master Servicer relating to the above-referenced trust;
2. Based on my knowledge, the information in these
distribution reports prepared by the Trustee, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution information
required to be provided by the Trustee under the Pooling and Servicing Agreement
is included in these reports.
In compiling the distribution information and making the
foregoing certifications, the Trustee has relied upon information furnished to
it by the Master Servicer and the Special Servicer under the Pooling and
Servicing Agreement. The Trustee shall have no responsibility or liability for
any inaccuracy in such reports resulting from information so provided to it by
the Master Servicer or the Special Servicer.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement, dated June 1,
2004 (the "Pooling and Servicing Agreement"), among Citigroup Mortgage Loan
Trust Inc. as depositor, National City Mortgage Co. as master servicer and U.S.
Bank National Association as trustee.
U.S. Bank National Association,
as Trustee
By:________________________________
Name:
J-2-1
Title:
Date:
J-2-2
EXHIBIT K
FORM OF SPECIAL SERVICING AGREEMENT
K-1
SPECIAL SERVICING AGREEMENT
---------------------------
This SPECIAL SERVICING AGREEMENT (the "AGREEMENT") is made and entered
into as of June 29, 2004, among National City Mortgage Co., as master servicer
(the "COMPANY"), Xxxxxx Loan Servicing LP, as special servicer (the "SPECIAL
SERVICER"), and U.S. Bank National Association, as trustee under the Pooling and
Servicing Agreement as defined herein (the "Trustee").
PRELIMINARY STATEMENT
---------------------
WHEREAS, the Company is the Master Servicer of the Mortgage Loans and
the Mortgage Loans are serviced in accordance with the Pooling and Servicing
Agreement, dated as of June 1, 2004, among Citigroup Mortgage Loan Trust Inc. as
depositor, the Company as Master Servicer, and U.S. Bank National Association as
Trustee (the "Pooling and Servicing Agreement").
WHEREAS, the Special Servicer and the Company have agreed that (i) with
respect to Mortgage Loans that become 60 or more days contractually past due in
accordance with the MBA reporting methodology (each such Mortgage Loan, a
"DELINQUENT MORTGAGE LOAN"), the Company will provide to the Special Servicer
certain information with respect to such Delinquent Mortgage Loan, and (ii)
subject to the exceptions set forth herein, those Delinquent Mortgage Loans
which become ninety (90) or more days contractually past due in accordance with
the MBA reporting methodology or any REO Property (each such Delinquent Mortgage
Loan or REO Property, a "SPECIALLY SERVICED MORTGAGE LOAN") shall be serviced by
the Special Servicer.
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, the Company, the Special Servicer and the Trustee hereby
agree as follows:
ARTICLE I
---------
DEFINITIONS
-----------
Section 1.01 DEFINITIONS INCORPORATED BY REFERENCE.
Capitalized terms used but not otherwise defined in this Agreement
shall have the respective meaning ascribed thereto as set forth in the Pooling
and Servicing Agreement.
ARTICLE II
----------
DESIGNATION OF SPECIALLY SERVICED MORTGAGE LOANS AND SPECIAL
------------------------------------------------------------
SERVICING PROCEDURES
--------------------
Section 2.01 DETERMINATION OF SPECIALLY SERVICED MORTGAGE LOANS.
The Special Servicer agrees to service all Delinquent Mortgage Loans
that are more than ninety (90) days past due, except those Delinquent Mortgage
Loans that shall not be transferred to the Special Servicer hereunder if the
Company determines that such Delinquent Mortgage Loan is the subject of an
active or completed workout negotiation which the Company reasonably expects to
result in the cure of the payment delinquency associated therewith. The Special
Servicer shall have no obligation to service any Mortgage Loans that were more
than ninety (90) days past due and
continued to be serviced by the Company; provided, however, the Company shall
transfer to the Special Servicer any Mortgage Loan that was the subject of a
workout by the Company and (i) the Mortgagor is in breach of such workout plan
and (ii) the Mortgage Loan is more than ninety (90) days past due. The Company
shall provide written notice to the Special Servicer with respect to each
Delinquent Mortgage Loan that should be designated as a Specially Serviced
Mortgage Loan as set forth in Section 2.02.
Section 2.02 SPECIALLY SERVICED MORTGAGE LOANS.
(a) On or before the fourth (4th) business day of each calendar month, the
Company shall provide the Special Servicer with a list of Delinquent Mortgage
Loans, which list shall include the following information as to each such
Delinquent Mortgage Loan: delinquency status, workout status, foreclosure
status, bankruptcy or other pending litigation relating to such Mortgage Loan,
and any material related customer complaints.
On or before the twelfth (12th) calendar day of each month, the Company
shall provide written notice to the Special Servicer of each such Mortgage Loan
and REO Property which has been designated a Specially Serviced Mortgage Loan.
The servicing of each Specially Serviced Mortgage Loan shall be transferred by
the Company to the Special Servicer for servicing effective on the first (1st)
day of the calendar month immediately following the month of such designation
(the "TRANSFER DATE") substantially in the manner set forth herein and in
SCHEDULE I hereto.
(b) As of the Transfer Date of each Specially Serviced Mortgage Loan,
the Special Servicer shall succeed to and undertake all rights, duties and
obligations of the prior servicer (including, without limitation, the making of
advances and the right to receive the Servicing Fee and retain additional
servicing compensation with respect to such Specially Serviced Mortgage Loan)
pursuant to and in accordance with the terms of the Pooling and Servicing
Agreement. The Special Servicer shall remit collections and provide all loan
level information as required in the Pooling and Servicing Agreement to the
Trustee, with a copy to the Company, at least one Business Day prior to the date
such collections and/or information is required to be delivered by the Company
to the Trustee.
The Special Servicer shall service the Specially Serviced Mortgage
Loans in accordance with the terms hereof and the Pooling and Servicing
Agreement as if it were the Master Servicer under the Pooling and Servicing
Agreement in respect of such Mortgage Loans, except as set forth herein. The
Special Servicer agrees to comply with Section 3.09 and Section 3.10 of the
Pooling and Servicing Agreement in connection with the establishment of a
separate Servicing Account, clearing account and Collection Account (with
amounts credited thereto to be held in trust for the benefit of the Trustee and
Certificateholders), to deposit funds into such accounts in accordance with
Section 3.09 and Section 3.10(a) of the Pooling and Servicing Agreement, to
deliver funds to the Trustee or withdraw funds in accordance with Sections 3.09,
3.10(d) and 3.11 of the Pooling and Servicing Agreement, and direct the
investment of funds in accordance with Section 3.12 of the Pooling and Servicing
Agreement. The Special Servicer agrees to comply, with respect to Specially
Serviced Mortgage Loans and related REO Property, with the provisions of
Sections 3.13, 3.14, 3.15, 3.16, 3.17, 3.23, 3.25, 4.03 and 4.04(a) of the
Pooling and Servicing Agreement, as if it were the Master Servicer.
2
Notwithstanding Section 3.24 of the Pooling and Servicing Agreement,
with respect to the Specially Serviced Mortgage Loans, the Special Servicer
shall deliver to the Trustee for deposit into the Distribution Account on or
before 12:00 p.m. New York time on the Business Day immediately preceding the
Master Servicer Remittance Date from its own funds an amount equal to the lesser
of (i) the aggregate of the Prepayment Interest Shortfalls for the related
Distribution Date resulting from full or partial Principal Prepayments during
the related Prepayment Period and (ii) the amount of Servicing Fee owed to the
Special Servicer for the most recently ended calendar month.
(c) The Company and the Trustee acknowledge that the Special Servicer
or an affiliate may receive usual and customary real estate referral fees from
real estate brokers in connection with the listing and disposition of REO
Property.
(d) Once a Mortgage Loan becomes a Specially Serviced Mortgage Loan,
such Mortgage Loan shall remain a Specially Serviced Mortgage Loan, and shall
continue to be serviced by the Special Servicer, regardless of delinquency
status, whether the related Mortgaged Property becomes an REO Property or
otherwise, until the earlier of the liquidation or other disposition of such
Specially Serviced Mortgage Loan or the termination of this Agreement; provided,
however, that if the Company exercises its right as Master Servicer to purchase
all of the Mortgage Loans in the Trust Fund pursuant to an optional termination
provision under the Pooling and Servicing Agreement, the servicing of any
related Specially Serviced Mortgage Loans with respect to which foreclosure
proceedings have not been commenced shall be transferred promptly by the Special
Servicer in accordance with written instructions from the Company; provided
however, in the event the Specially Serviced Mortgage Loans have not been
transferred to a successor servicer within thirty (30) calendar days, the
Special Servicer shall continue to be entitled to the Servicing Fee, and shall
continue to remit and report in accordance with the terms of this Agreement and
the Pooling and Servicing Agreement.
(e) Notwithstanding any provision herein to the contrary, the Special
Servicer shall (i) in no event be obligated to effect any cure or remedy in
connection with a deficiency in the documentation for any Specially Serviced
Mortgage Loan to the extent such deficiency existed at the time such Mortgage
Loan became a Specially Serviced Mortgage Loan or (ii) have any responsibility
for any obligations, duties, or liabilities of the Company with respect to the
servicing of a Specially Serviced Mortgage Loan that arose prior to the Transfer
Date for such Specially Serviced Mortgage Loan, other than those which would
customarily be assumed after the Transfer Date.
Section 2.03 TERMINATION OF SPECIAL SERVICER.
(a) The Trustee may, or at the direction of the Company or holders of
the Certificates representing 50% or more of the Voting Rights shall,
immediately upon written notice, terminate the Special Servicer's right and
obligation to service all of the Specially Serviced Mortgage Loans hereunder in
the event (each such event, an "EVENT OF DEFAULT") of:
(i) any failure by the Special Servicer to remit to the Trustee for
distribution to the Certificateholders any payment (including without
limitation, any failure to make any required P&I Advance) required to
be made under the terms of this Agreement or the Pooling and Servicing
Agreement which continues unremedied for a period of one day after the
date
3
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Special Servicer by the Trustee;
or
(ii) any failure on the part of the Special Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Special Servicer contained in this
Agreement (including any breach of the Special Servicer's
representations and warranties contained in Section 4.02 hereof) which
materially and adversely affects the interests of the
Certificateholders which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Special Servicer by
the Trustee; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such
decree or order shall have remained in force undischarged or unstayed
for a period of sixty (60) consecutive days; or
(iv) the Special Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Special Servicer or of or relating to all or
substantially all of its property; or
(v) the Special Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of or otherwise voluntarily commence a case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations.
(b) The Special Servicer may be terminated by the Company, without any
fee or expense being payable to the Special Servicer (other than costs and
expenses related to the transfer of the Specially Serviced Mortgage Loans), if
the majority of the Subordinate Certificates, based upon the aggregate unpaid
principal balance, are no longer held by any affiliates of the Special Servicer.
The Special Servicer shall notify the Company of such event.
(c) If an Event of Default or servicing termination shall occur, then,
and in each and every such case, upon receipt of written notice from the
Trustee, the Special Servicer shall immediately remit to the Company all amounts
in the Collection Account and the escrow accounts and all rights of the Special
Servicer to service the Specially Serviced Mortgage Loans shall terminate.
Following the receipt of written notice from the Trustee as provided above, all
authority and power of the Special Servicer to service all the Specially
Serviced Mortgage Loans shall pass to and be vested in the Company pursuant to
and under this Section 2.03, and the Special Servicer shall do all things
necessary to effect a transfer of the servicing rights back to the Company. In
this regard, the Company is hereby authorized and empowered to execute and
deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such
4
notice of termination, whether to complete the transfer and endorsement or
assignment of the affected Specially Serviced Mortgage Loans and related
documents, or otherwise. The Special Servicer agrees to cooperate with the
Company in implementing the termination of the Special Servicer's
responsibilities and rights hereunder to the extent required by this Section
2.03, including, without limitation, the transfer to the Company or its
appointed agent for administration by it of all amounts in the possession of the
Special Servicer or thereafter be received with respect to all of the Specially
Serviced Mortgage Loans serviced hereunder, and the transfer of the related
servicing rights back to the Company.
Section 2.04 APPOINTMENT OF SUCCESSOR SPECIAL SERVICER.
In the event that an Event of Default or servicing termination set
forth in Section 2.03 occurs, the Company (subject to the designation of the
Trustee or its designee as successor to the Company hereunder in accordance with
Section 2.05) shall succeed to the rights and obligations of the Special
Servicer hereunder. If the Company does not become the successor special
servicer, the Trustee shall have the right to appoint a successor special
servicer meeting the requirements set forth in clauses (i), (ii) and (iii)
below. Any such successor special servicer shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Special
Servicer under this Agreement simultaneously with the termination of the Special
Servicer's responsibilities, duties and liabilities under this Agreement. In the
event that the Special Servicer's duties, responsibilities and liabilities under
this Agreement should be terminated pursuant to the foregoing, the Special
Servicer shall discharge such duties and responsibilities during the period from
the date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor. The
removal of the Special Servicer shall not become effective until a successor
shall be appointed pursuant to this Section and shall in no event relieve the
Special Servicer of the representations and warranties made pursuant to Section
4.02 and the remedies available to the Company under Sections 4.03 and 5.01, it
being understood and agreed that the provisions of such Sections 4.03 and 5.01
shall be applicable to the Special Servicer notwithstanding any such termination
of it, or the termination of this Agreement.
Any successor special servicer shall (i) be an institution having a net
worth of not less than $1,000,000, (ii) the appointment of such successor
servicer will not result in the downgrading in any rating by any applicable
rating agency of any security issued in connection with the Pooling and
Servicing Agreement, (iii) satisfy the representations and warranties applicable
to the Special Servicer, and (iv) have and keep in full effect its existence,
rights and franchises as a corporation (or such other corporate form), and shall
obtain its qualification to do business as a foreign corporation (or such other
corporate form) in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement or any of
the Specially Serviced Mortgage Loans and to perform its duties under this
Agreement. Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Company an instrument accepting such appointment, wherein the
successor shall make the representations and warranties set forth in Section
4.02, whereupon such successor shall become fully vested with all the rights,
powers, duties, responsibilities, obligations and liabilities of the Special
Servicer, with like effect as if originally named as a party to this Agreement.
5
Within thirty (30) days of the appointment of a successor special
servicer by the Trustee, the Special Servicer shall prepare, execute and deliver
to the successor entity any and all documents and other instruments, place in
such successor's possession all servicing files related to the Specially
Serviced Mortgage Loans, and do or cause to be done all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
including but not limited to the transfer and endorsement of the related
Mortgage Notes and other documents, and shall do or cause to be done the
preparation and recordation of Assignments of Mortgage and Deeds at the Special
Servicer's sole expense if the Special Servicer is terminated pursuant to
Section 2.03(a) herein, and otherwise at the Company's sole expense.
The Special Servicer shall cooperate with such successor in effecting
the termination of the Special Servicer's responsibilities and rights hereunder
and the transfer of servicing responsibilities to the successor special
servicer, including without limitation, the transfer to such successor of all
amounts received by it with respect to the Specially Serviced Mortgage Loans.
Further, the Special Servicer shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and definitively
vest in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Special Servicer.
Section 2.05 ASSUMPTION BY TRUSTEE OF COMPANY'S RIGHTS HEREUNDER.
In the event the Company shall for any reason no longer be the master
servicer (including by reason of the occurrence of a Master Servicer Event of
Default under the Pooling and Servicing Agreement), the Trustee or its designee
shall thereupon assume all of the rights and obligations of the Company under
this Agreement. Upon such assumption, the Trustee, its designee or the successor
servicer for the Trustee appointed pursuant to Section 7.02 of the Pooling and
Servicing Agreement shall be deemed, subject to Section 3.03 of the Pooling and
Servicing Agreement, to have assumed all of the Company's interest herein and to
have replaced the Company as a party to this Agreement to the same extent as if
this Agreement had been assigned to the assuming party, except that (i) the
Company shall not thereby be relieved of any liability or obligations under this
Agreement in respect of events occurring prior to such termination of the
Company's role as Master Servicer and (ii) none of the Trustee, its designee or
any successor master servicer shall be deemed to have assumed any liability or
obligation of the Company that arose before it ceased to be the Master Servicer.
ARTICLE III
-----------
REPORTING
---------
Section 3.01 REPORTING OF DELINQUENT MORTGAGE LOANS OTHER THAN
SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Company, as Master Servicer of the Mortgage Loans other than
the Specially Serviced Mortgage Loans, hereby agrees to provide to the Special
Servicer a report, in mutually acceptable electronic format, containing the
following information on or before the fifteenth (15th) day of the month in
which the Distribution Date occurs:
6
(1) The number and aggregate Principal Balance of the Mortgage
Loans (other than the Specially Serviced Mortgage Loans)
delinquent one, two and three months or more, together with
the Principal Balance of each Mortgage Loan (other than the
Specially Serviced Mortgage Loans) delinquent, one, two and
three months or more;
(2) The (i) number and aggregate Principal Balance of Mortgage
Loans (other than the Specially Serviced Mortgage Loans) with
respect to which foreclosure proceedings have been initiated,
and (ii) the number and aggregate book value of Mortgaged
Properties acquired through foreclosure, deed in lieu of
foreclosure or other exercise of rights respecting the
Trustee's security interest in the Mortgage Loans, and with
respect to each Mortgage Loan, the (i) Principal Balance of
each such Mortgage Loan with respect to which foreclosure
proceedings have been initiated, and (ii) the book value of
each Mortgaged Property acquired through foreclosure, deed in
lieu of foreclosure or other exercise of rights respecting the
Trustee's security interest in the related Mortgage Loan; and
(3) Except with respect to the Specially Serviced Mortgage Loans,
the amount of Realized Losses allocable to the Certificates on
the Distribution Date and the cumulative amount of Realized
Losses allocated to such Certificates since the Cut-off Date,
and with respect to each Mortgage Loan, the amount of Realized
Losses attributable to such Mortgage Loan on the Distribution
Date and the cumulative amount of Realized Losses attributable
to such Mortgage Loan since the Cut-off Date.
To the extent such information is included in or with the monthly remittance
reports provided by the Company to the Trustee pursuant to the Pooling and
Servicing Agreement, the Company may forward such monthly statement to the
Special Servicer in satisfaction of the foregoing obligations. In addition, the
Company, as Master Servicer of the Mortgage Loans, shall send, or shall cause
the related servicer to send, to the Special Servicer all other written reports,
documentation, instruments, certificates and correspondences provided by a
servicer with respect to any Delinquent Mortgage Loan or REO Property.
(b) If requested by the Special Servicer, the Company shall make its
servicing personnel available to respond to reasonable inquiries, by phone or in
writing by facsimile, electronic, or overnight mail transmission, in connection
with any Mortgage Loan identified in any report or document provided pursuant to
clause (a) above; provided, that the Company shall only be required to provide
information that is reasonably accessible to its servicing personnel (or its
subservicers).
(c) In addition to the information described above, the Company shall
provide to the Special Servicer such information as the Special Servicer may
reasonably request; provided, however, that the Mortgage Loans are Delinquent
Mortgage Loans or the Mortgaged Property has been foreclosed upon. The Special
Servicer will reimburse the Company for any reasonable out-of-pocket expenses
incurred by it in providing such information.
7
Section 3.02 SERVICING OF DELINQUENT MORTGAGE LOANS.
(a) The Special Servicer and the Company shall consult with each other
with respect to any Mortgage Loan for which the Company commences, or expects to
commence, a foreclosure action.
(b) To the extent not prohibited by the Pooling and Servicing
Agreement, the Company and the Special Servicer agree to the Operational
Requirements listed on Exhibit A attached hereto and made a part hereof.
Section 3.03 REVIEW OF THE COMPANY'S PROCEDURES.
(a) The Company hereby agrees that the Special Servicer shall have the
right, at its own expense and during normal business hours, to review any and
all of the books, records, or other information of the Company which may be
relevant to the Company's direct collection, loss mitigation foreclosure and REO
management procedures currently in place in order to confirm that the procedures
used by the Company and its subservicers are in accordance with the customary
servicing practices of prudent mortgage loan servicers. In order to discuss such
books, records or other information, the Company shall make personnel available
who are knowledgeable about such matters.
Section 3.04 REPORTING OF SPECIALLY SERVICED MORTGAGE LOANS.
(a) With respect to the Specially Serviced Mortgage Loans, the Special
Servicer agrees to prepare and deliver the reports and statements required under
Sections 3.19, 3.20, 4.03 and 4.04(a) of the Pooling and Servicing Agreement, to
cause the delivery of an Independent Public Accountants' report pursuant to
Section 3.21 of the Pooling and Servicing Agreement, and to permit the access
required under Section 3.22 of the Pooling and Servicing Agreement.
(b) With respect to the Specially Serviced Mortgage Loans, the Special
Servicer shall reasonably cooperate with the Company and the Depositor in
connection with satisfying the reporting requirements under the Securities
Exchange Act of 1934, as amended. The Special Servicer shall also prepare and
deliver an annual certification in the form attached hereto as Exhibit B, which
shall be signed by a senior officer of the Special Servicer in charge of
servicing, and upon which the Company may rely in preparing its annual
certification. The Special Servicer shall have no obligations to provide such
certification under this Section 3.04(b) for any calendar year if the Special
Servicer has not serviced any Specially Serviced Mortgage Loans during such
calendar year. The Special Servicer's obligations pursuant to this Section
3.04(b) shall be in lieu of any obligations pursuant to Section 4.07 of the
Pooling and Servicing Agreement.
(c) The Special Servicer shall afford the Company, the Depositor and
the Trustee, upon reasonable notice, during normal business hours, access to all
records maintained by the Special Servicer in respect of the Special Servicer's
rights and obligations hereunder and access to officers of the Special Servicer
responsible for such obligations. To the extent such information is not
otherwise available to the public, the Company, the Depositor and the Trustee
shall comply with Section 5.10 of this Agreement with respect to the receipt and
disclosure of such information. In no
8
event shall the Special Servicer be required to furnish to any person any
financial statements of the Special Servicer or of any affiliates of the Special
Servicer.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.01 ORGANIZATIONAL AND OTHER RELATED WARRANTIES OF THE
COMPANY. The Company hereby makes the following representations and warranties
to the Trustee and the Special Servicer:
(i) ORGANIZATION AND GOOD STANDING. The Company is an entity duly
organized, validly existing, and in good standing under the laws of its state of
incorporation or formation or the laws of the United States, and is in
compliance with the laws of each state in which any property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations hereunder and the Pooling and Servicing Agreement.
(ii) NO VIOLATION. Neither the execution and delivery by Company of
this Agreement, nor the consummation by it of the transactions contemplated
hereby, nor the performance of and compliance by the Company with the provisions
hereof or of the Pooling and Servicing Agreement, will conflict with or result
in a breach or violation of, or constitute a default (or an event which, with
notice or the lapse of time, or both, would constitute a default) under, the
organizational documents (its articles of incorporation or charter or by-laws)
of the Company, or any of the provisions of any law, rule, regulation, judgment,
decree, demand, or order (of any federal, state, or local governmental or
regulatory authority or court) binding on the Company, or any of its properties,
or any of the provisions of any indenture, mortgage, contract, instrument, or
other document (including, without limitation, the Pooling and Servicing
Agreement) to which the Company is a party or by which it is bound, or result in
the creation or imposition of any lien, charge, or encumbrance upon any of their
respective properties pursuant to the terms of any indenture, mortgage,
contract, instrument, or other document. The Company is not otherwise in
violation of any law, rule, regulation, judgment, decree, demand, or order (of
any federal, state or local governmental or regulatory authority or court),
which violation, in the Company's good faith and reasonable judgment, is likely
to affect materially and adversely either its ability to perform its obligations
hereunder or under the Pooling and Servicing Agreement, or the financial
condition of the Company.
(iii) AUTHORIZATION AND ENFORCEABILITY. The execution and delivery by
the Company of this Agreement, the consummation of the transactions contemplated
hereby, and the performance and compliance by the Company with the terms hereof
and of the Pooling and Servicing Agreement are within the powers of the Company,
and have been duly authorized by all necessary action on the part of the
Company. All organizational resolutions and consents necessary for the Company
to enter into and consummate all transactions contemplated hereby have been
obtained. This Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
creditors' rights generally, and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law. The
Company has not failed to obtain any consent, approval, authorization, or order
of, or failed to cause any registration or qualification with, any court or
regulatory authority or other governmental body having jurisdiction over the
Company, which
9
consent, approval, authorization, order, registration, or qualification is
required for, and the absence of which would materially adversely affect, the
legal and valid execution, delivery, and performance of this Agreement by the
Company.
(iv) APPROVALS AND PERMITS. The Company possesses such certificates,
authorizations, licenses, and permits issued by the appropriate state, federal,
and foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization, or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would materially and adversely affect
the conduct of the business, operations, financial condition, or income of the
Company.
(v) NO LITIGATION OR ADVERSE CONDITIONS. No litigation is pending or,
to the best of the Company's knowledge, threatened against it, which, if
determined adversely to the Company would prohibit the Company from entering
into this Agreement or, in the good faith and reasonable judgment of the
Company, is likely to materially and adversely affect either its ability to
perform its obligations hereunder or under the Pooling and Servicing Agreement
or the financial condition of the Company. The Company has no knowledge of any
recent adverse financial condition or event with respect to itself that, in its
good faith and reasonable judgment, is likely to materially and adversely affect
its ability to perform its obligations hereunder or under the Pooling and
Servicing Agreement.
(vi) FIDELITY BOND; ERRORS AND OMISSION INSURANCE. Each officer,
director, employee, consultant and advisor of the Company with responsibilities
concerning the servicing and administration of the Mortgage Loans is covered by
errors and omissions insurance and fidelity bond insurance in the amounts and
with the coverage required under the Pooling and Servicing Agreement for it to
maintain. Neither the Company nor any of its officers, directors, employees,
consultants, or advisors involved in the servicing or administration of the
Mortgage Loans has been refused such coverage or insurance.
Section 4.02 ORGANIZATIONAL AND OTHER RELATED WARRANTIES OF THE SPECIAL
SERVICER. The Special Servicer hereby makes the following representations and
warranties to the Company and the Trustee:
(i) ORGANIZATION AND GOOD STANDING. The Special Servicer is an entity
duly organized, validly existing, and in good standing under the laws of its
state of incorporation or formation or the laws of the United States, and is in
compliance with the laws of each state in which any property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations hereunder.
(ii) NO VIOLATION. Neither the execution and delivery by Special
Servicer of this Agreement, nor the consummation by it of the transactions
contemplated hereby, nor the performance of and compliance by the Special
Servicer with the provisions hereof , will conflict with or result in a breach
or violation of, or constitute a default (or an event which, with notice or the
lapse of time, or both, would constitute a default) under, the organizational
documents (its articles of incorporation or charter or by-laws) of the Special
Servicer, or any of the provisions of any law, rule, regulation, judgment,
decree, demand, or order (of any federal, state, or local governmental or
regulatory authority or court) binding on the Special Servicer, or any of its
properties, or any of the
10
provisions of any indenture, mortgage, contract, instrument, or other document
to which the Special Servicer is a party or by which it is bound, or result in
the creation or imposition of any lien, charge, or encumbrance upon any of their
respective properties pursuant to the terms of any indenture, mortgage,
contract, instrument, or other document. The Special Servicer is not otherwise
in violation of any law, rule, regulation, judgment, decree, demand, or order
(of any federal, state or local governmental or regulatory authority or court),
which violation, in the Special Servicer's good faith and reasonable judgment,
is likely to affect materially and adversely either its ability to perform its
obligations hereunder, or the financial condition of the Special Servicer.
(iii) AUTHORIZATION AND ENFORCEABILITY. The execution and delivery by
the Special Servicer of this Agreement, the consummation of the transactions
contemplated hereby, and the performance and compliance by the Special Servicer
with the terms hereof are within the powers of the Special Servicer, and have
been duly authorized by all necessary action on the part of the Special
Servicer. All organizational resolutions and consents necessary for the Special
Servicer to enter into and consummate all transactions contemplated hereby have
been obtained. This Agreement has been duly executed and delivered by the
Special Servicer and constitutes the legal, valid and binding obligation of the
Special Servicer, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting creditors' rights generally, and to general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law. The Special Servicer has not failed to obtain any consent,
approval, authorization, or order of, or failed to cause any registration or
qualification with, any court or regulatory authority or other governmental body
having jurisdiction over the Special Servicer, which consent, approval,
authorization, order, registration, or qualification is required for, and the
absence of which would materially adversely affect, the legal and valid
execution, delivery, and performance of this Agreement by the Special Servicer.
(iv) APPROVALS AND PERMITS. The Special Servicer possesses such
certificates, authorizations, licenses, and permits issued by the appropriate
state, federal, and foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and its has not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization, or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would materially and adversely affect
the ability of the Special Servicer to service a Mortgage Loan or the interests
of the Certificateholders therein. The Special Servicer is authorized to
transact business in the state or states in which the related Mortgaged
Properties it is to service are situated, if and to the extent required by
applicable law to enable the Special Servicer to perform its obligations
hereunder and under the Pooling and Servicing Agreement.
(v) NO LITIGATION OR ADVERSE CONDITIONS. No litigation is pending or,
to the best of the Special Servicer's knowledge, threatened against it, which,
if determined adversely to the Special Servicer would prohibit the Special
Servicer from entering into this Agreement or, in the good faith and reasonable
judgment of the Special Servicer, is likely to materially and adversely affect
either its ability to perform its obligations hereunder or the financial
condition of the Special Servicer. The Special Servicer has no knowledge of any
recent adverse financial condition or event with respect to itself that, in its
good faith and reasonable judgment, is likely to materially and adversely affect
its ability to perform its obligations hereunder.
(vi) FIDELITY BOND; ERRORS AND OMISSION INSURANCE. Each officer,
director, employee,
11
consultant and advisor of the Special Servicer with responsibilities concerning
the servicing and administration of the Mortgage Loans is covered by errors and
omissions insurance and fidelity bond insurance in the amounts and with the
coverage required under the Pooling and Servicing Agreement to be maintained by
the Company as master servicer. Neither the Special Servicer nor any of its
officers, directors, employees, consultants, or advisors involved in the
servicing or administration of the Mortgage Loans has been refused such coverage
or insurance.
(vii) APPROVED SELLER/SERVICER. The Special Servicer is an approved
seller/servicer of conventional mortgage loans for Xxxxxx Xxx and is an approved
mortgagee for the Federal Housing Administration in good standing to service
mortgages.
(viii) MERS. The Special Servicer is a member of MERS in good standing,
and will comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the Specially Serviced Mortgage Loans that
are registered with MERS.
Section 4.03 REMEDIES FOR BREACH OF REPRESENTATION AND WARRANTY.
Upon discovery by any of the Company, the Trustee or the Special
Servicer of a breach of any of the representations and warranties contained in
Article IV which materially and adversely affects the value of the Specially
Serviced Mortgage Loans or Delinquent Mortgage Loans, the party discovering such
breach shall give prompt written notice to the others.
Each of the Company and the Special Servicer shall indemnify the other
and the Trustee and hold each of them harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
such party's representations and warranties contained in Article IV. It is
understood and agreed that the obligations to indemnify as provided in this
Section 4.03 constitute the sole remedies of each of the Company and Special
Servicer respecting a breach of any other party's representations and
warranties.
ARTICLE V
---------
MISCELLANEOUS PROVISIONS
------------------------
Section 5.01 INDEMNIFICATION.
Each of the Company and the Special Servicer (each as such, an
"INDEMNIFYING PARTY") shall indemnify the other and the Trustee (on behalf of
itself and the Trust Fund) (each as such, an "INDEMNIFIED PARTY") and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses (individually and collectively, the
"CLAIMS") that such Indemnified Party may sustain in any way related to the
failure of the Indemnifying Party to perform its duties in compliance with the
terms of this Agreement; PROVIDED, that the Company and the Trustee acknowledge
and agree that the obligation of the Special Servicer to indemnify for losses
arising from or incurred in connection with the servicing of Specially Serviced
Mortgage Loans (including REO Property) shall be determined in accordance with
the indemnification standards applicable to
12
the Company, as Master Servicer under the Pooling and Servicing Agreement; and
PROVIDED FURTHER, that neither the Company nor the Special Servicer or any of
the directors, officers, employees or agents of the Company or the Special
Servicer shall be liable for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; it being understood that this provision shall not protect the Company
or the Special Servicer against any material breach of warranties,
representations or covenants made herein, or against any specific liability
imposed on such party pursuant hereto, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Special Servicer is entitled to
indemnification from the Trustee as set forth in Section 10.03(a) of the Pooling
and Servicing Agreement.
Section 5.02 AMENDMENT.
This Agreement may be amended from time to time by written agreement
signed by each of the parties hereto.
Section 5.03 COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original and
such counterparts shall constitute but one and the same instrument.
Section 5.04 GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 5.05 NOTICES.
All demands, notices and direction hereunder shall be in writing or by
telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company,
National City Mortgage Co.
0000 Xxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
or such other address as may hereafter be furnished to the
Special Servicer and the Trustee in writing.
(b) in the case of the Special Servicer,
13
Xxxxxx Loan Servicing LP
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as may hereafter be furnished to the
Company and the Trustee in writing.
(c) in the case of the Trustee,
U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance/CMLTI 2004-NCM1
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as may hereafter be furnished to the
Company and the Special Servicer in writing.
Section 5.06 TERMINATION.
This Agreement shall terminate (x) on the date as of which no
Delinquent Mortgage Loan may be transferred to the Special Servicer and no
Specially Serviced Mortgage Loan is outstanding; (y) if an Event of Default or
service termination occurs as set forth in Section 2.03; or (z) if mutually
agreed to by the parties hereto; provided that the indemnification provisions of
Section 5.01 of this Agreement shall survive such termination..
Section 5.07 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 5.08 SUCCESSORS AND ASSIGNS.
Except as otherwise set forth herein, this Agreement may not be
assigned by any party hereto without the prior written consent of each of the
other parties hereto, and the provisions of this
14
Agreement shall be binding upon and inure to the benefit of the respective
permitted successors and assigns of the parties hereto.
Section 5.09 ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 5.10 CONFIDENTIALITY.
(a) In connection with the rights and obligations of each of the
parties hereunder, each of the Company, the Trustee and the Special Servicer
(for the purposes of this Section 5.10(a), a "Disclosing Party") may find it
necessary to disclose to the other parties (including its subsidiaries) or its
representatives (collectively, a "Receiving Party") certain confidential,
non-public or proprietary information relating to the Disclosing Party or its
affiliates. "Confidential Information" means any nonpublic information whatever
its nature or form, whether obtained orally, by observation, from written
materials or otherwise, from any third party or from the Disclosing Party or its
directors, officers, employees, affiliates, representatives (including, without
limitation, financial advisors, attorneys and accountants) or agents
(collectively, a party's "Representatives;") that is obtained by the Receiving
Party as a result of or in connection with the performance of its rights or
obligations under this Agreement, whether before or after the date hereof,
together with all analyses, compilations, forecasts, studies or other documents
prepared by a Receiving Party or its Representatives in connection with the
performance of its rights or obligations hereunder which contain or reflect any
such information. Confidential Information includes, but is not limited to, any
non-public information regarding any business or operations plans, strategies,
processes, know-how, portfolios, prospects or objectives of the Disclosing
Party; structure, products, product development, technology, inventions,
discoveries, improvements, specifications, source codes, object code,
programming and other documentation, designs, methods, devices, systems,
computer software, including due diligence system, loss mitigation software
included within RADAR, foreclosure attorney web site, distribution, sales,
services, support and marketing plans, practices, or operations of the
Disclosing Party; the prices, costs and details of the services of the
Disclosing Party; the financial condition, results of operations, financial
records and related information of the Disclosing Party; the position of the
Disclosing Party and its clients in any portfolio; the performance of any
accounts or assets of the Disclosing Party; research and development, operations
or plans of the Disclosing Party; clients and client lists (including, without
limitation, the identity of clients, names, addresses, contact persons, and the
client's business or investment status or needs) of the Disclosing Party;
information received from third parties under confidential conditions; any trade
secrets, confidential or secret designs, processes, formulae, plans, devices or
material (whether or not patented or patentable) directly or indirectly useful
in any aspect of the business of the Disclosing Party (including, without
limitation, financial, investment and trading plans, designs, products and
computer aided financial investment and trading systems, software, strategies,
programs, formulae, patterns, methods, techniques, processes and system
analyses), management organization and related information (including, without
limitation, data and other information concerning the compensation and benefits
paid to officers, directors and employees of the Disclosing Party); personnel
and compensation policies; operation policies and manuals; means of gaining
access to the Disclosing Party's computer data systems and related information;
or any other non-public financial, commercial, business, technical or other
information relating to the Disclosing Party, its clients,
15
subsidiaries or affiliates. The term Confidential Information will not, however,
include Confidential Information which (i) is or becomes publicly available
other than as a result of a disclosure by a Receiving Party or its
Representatives in violation of this Agreement, (ii) becomes available to a
Receiving Party on a non-confidential basis after the date hereof from a source
(other than a Disclosing Party or its Representatives ), which, to the best
knowledge of a Receiving Party after due inquiry, is not prohibited from
disclosing such information to the Receiving Party by any obligation of
confidentiality to another party hereto, or (iii) is developed or derived by a
party hereto without the aid, application or use of Confidential Information.
(b) The Special Servicer agrees that all information supplied by or on
behalf of the Company pursuant to Section 2.02 or Section 3.02, including
individual account information, is the property of the Company and each such
party agrees to use such information only for the purposes contemplated by this
Agreement and otherwise hold such information confidential and not to disclose
such information, except as contemplated hereby or to the extent such
information is made publicly available by or on behalf of the Company or the
Trustee. In addition, each of the parties acknowledge that the Federal "Privacy
of Consumer Financial Information" Regulation (16 CFR Parts 313 and 314), as
amended from time to time (the "Privacy Regulation"), issued pursuant to Section
504 of the Xxxxx-Xxxxx-Xxxxxx Act (15 U.S.C. 6801 et seq.) governs disclosures
of nonpublic personal information about consumers. The Special Servicer hereby
agrees that it shall comply with the terms and provisions of the Privacy
Regulation, including, without limitation, the provisions regarding the sharing
of Nonpublic Personal Information (as defined in the Privacy Regulation) and the
safeguarding of such information in so far as such terms and provisions relate
to Confidential Information.
Section 5.11 NO PARTNERSHIP.
Nothing herein shall be deemed or construed to create a partnership or
joint venture between the parties hereto and the services of the Company shall
be rendered as an independent contractor and not as an agent for the Company.
16
IN WITNESS WHEREOF, each of the parties hereto have caused its name to
be signed hereto by its respective officer thereunto duly authorized, all as of
the day and year first above written.
NATIONAL CITY MORTGAGE CO.
By:
Name: ______________________
Title: _______________________
XXXXXX LOAN SERVICING LP
By:
Name: ______________________
Title: _______________________
U.S. BANK NATIONAL
ASSOCIATION, not in its
individual capacity but solely
as Trustee
By:
Name: ______________________
Title: _______________________
Acknowledged:
CITIGROUP MORTGAGE LOAN TRUST INC.,
as Depositor
By:
Name: ______________________
Title: _______________________
SCHEDULE I
SERVICING TRANSFER INSTRUCTIONS
SERVICING TRANSFER INSTRUCTIONS
DATE: JUNE 29, 2004 SUBJECT: NATIONAL CITY MORTGAGE CO.
TO: [COMPANY'S SERVICER CONTACT FROM: XXX XXXXXX
This memo confirms the following list of items required to complete the
servicing transfer on each transfer date pursuant to the Special Servicing
Agreement, dated as of June 29, 2004 among National City Mortgage Co., Xxxxxx
Loan Servicing LP and U.S. Bank National Association.
I. CONVERSION DATA
Conversion data can be supplied in 3 formats:
A. Manual conversion
1. Provide a "master file data record" for each loan
(accompanied by a listing of all your code
definitions).
2. Provide a trial balance containing all the loans.
Provide final data.
3. Final data should be provided within 5 business days
after each servicing transfer date.
B. Electronic conversion
1. If it is determined that this type of conversion is
advantageous to both parties a mutually agreeable
electronic format (e.g. Microsoft Excel) will be
furnished.
2. Final data should be provided within 5 business days
after servicing transfer date.
3. A trial balance must be provided for final data.
C. Tape to Tape conversion
1. If it is determined that this type of conversion is
advantageous to both parties the details will be
furnished.
2. Final data tape should be provided within 5 business
days after transfer date.
3. A trial balance must be provided for final data.
II. HOMEOWNER NOTIFICATION
A. The mortgagor notification (good-bye letter) must be mailed at
least 15 days prior to the transfer date. A copy of your
good-bye letter must be faxed to Xxx Xxxxxx (fax number
713-561-8248) for approval prior to mailing.
B. Electronic file or hard copies of your mortgagor notification
letters should be provided to LLS within 5 days after
servicing transfer date.
C. INFORMATION FOR NOTIFICATION LETTERS
Hours of operation: 8:00 am to 7:00 pm (CST)
Customer Service Toll Free Number: (000) 000-0000
Correspondence Address: Xxxxxx Loan Servicing LP
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Payment Address: Xxxxxx Loan Servicing LP
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
III. HAZARD / FLOOD INSURANCE
A. The Hazard / Flood insurance policies should be in separate
files identified with your loan number.
B. Please request a change to the mortgagee clause as follows:
XXXXXX LOAN SERVICING LP
ITS SUCCESSORS OR ASSIGNS
X.X. XXX 0000
XXXXXXX, XX 00000-0000
C. Copies of the mortgagee clause change requests should be
provided to LLS.
D. Any unpaid policies, expiration notices, cancellation notices,
loans with expired policies should be properly identified,
sorted and marked for special handling.
E. Individual loan insurance records showing payee (name and
address), due dates, frequency of payment, next due date, last
paid date and last paid amount should be provided in
electronic format.
F. Provide a list of loans under your "force place coverage"
program. Will the coverage on individual loans remain in
effect until expiration or be canceled at time of the
transfer?
G. Insurance loss drafts should provide all documentation on the
current status.
IV. Reserved.
V. CONVENTIONAL LOANS
A. Provide the individual loan PMI certificates
B. Provide copies of the notification to the PMI companies
requesting a change of servicer to LLS.
2
C. Listing of all loans with PMI to include:
1. Loan number
2. PMI company
3. PMI certificate number
4. Next due date
5. Last amount paid
6. Percentage of Coverage
D. Homeowner Protection Act of 1998.
1. Loans originated after July 29, 1999: Provide copies
of original disclosure notice produced at origination
of loan.
2. Loans originated prior to July 29, 1999: Provide the
annual disclosure notices supplied to borrowers.
E. Listing of loans that have Pool Insurance. If loan has Pool
Insurance supply name, address and phone number of insurance
agency.
F. Listing of loans that have Pool Insurance and private mortgage
insurance.
VI. REAL ESTATE TAXES
A. Individual loan tax records showing payee (name and address),
due dates, frequency of payment, next due date, last paid date
and last paid amount along with tax contract numbers and
vendor information should be provided in electronic format.
B. Provide copies of any tax service contracts along with the
request for a change of servicer to LLS under the following
vendor numbers (Transamerica-2489, First American-56353,
Lereta-65000, Fidelity-2059). We also have tax contracts with
other tax services, which you can contact us for more
information.
C. All property taxes due and payable should be paid prior to the
transfer date.
D. Provide a listing of any loans with delinquent taxes
containing the pertinent information as of the transfer date.
VII. OPTIONAL INSURANCE
A. Only prepaid optional insurance should be provided to LLS.
B. All prepaid optional insurance should include the following
information.
1. Loan number
2. Insurance company
3. Type of coverage
4. Policy Number
5. Coverage Amount
3
6. Policy Effective Date
7. Premium Amount
8. Expiration Date
C. Copies of the master and/or individual policies for the
insurance coverage.
D. Copies of the notification sent to the insurance companies.
VIII. INVESTOR REPORTS
A. Copy of the final remittance report to the investor including
a trial balance as of cut-off date.
B. Provide a list of all simple interest loans.
C. Provide a list of all loans currently on ACH Draft. The
borrower to be notified that their ACH Draft will be
discontinued in your good bye letter.
IX. CORPORATE ADVANCES
A. Provide list of all loans with corporate advances.
B. Back-up documentation must be supplied for any loan with a
corporate advance. The documentation must balance to the
advance amount.
C. Back-up documentation must be received at the time of
transfer.
X. MERS DATA
A. All MERS loans must be moved to correct ORG ID to coincide
with transfer.
B. The batch number must be supplied to Xxxxxx.
C. The MIN number must be supplied for each loan transferred on
MERS.
XI. PAYOFFS
A. Provide a list of loans that have prepayment penalty
provisions in the mortgage.
B. Loan level prepayment penalty information must be provided on
any loan with a prepayment penalty. This information should be
provided in an electronic file or hard copy.
C. Unprocessed payoff funds should be accompanied by a copy of
the payoff quotation.
D. Information should be furnished on any pending payoff or
assumption.
E. Information on any incomplete partial release should be
provided.
4
XII. ADJUSTABLE RATE MORTGAGES / GPM / BUYDOWNS / BALLOONS
A. Provide individual loan historical rate and P&I changes.
B. ARM provisions for each loan within the portfolio
C. Provide list of ARM Plans and definitions.
D. Provide a list of loans that are step rate and/or GPM
mortgages with status of account.
E. Provide a list of loans that are buydowns with status of
account.
F. Provide a list of balloon loans, their maturity dates,
amortization term and if they have a convertible option. If a
loan has reached its maturity date prior to conversion furnish
the current status.
G. Provide a list of loans that are Servicemember's Civil Relief
Act, as amended and copies of their orders.
XIII. FORECLOSURES
A. A list of contact people for the Foreclosure, Claims and
Bankruptcy area needs to be provided to Xxxxxx.
B. A listing of loans in foreclosure, sorted by state, including
status report on each loan showing the current stages of the
foreclosure, the foreclosure referral date and who is holding
the original documents. Alltel users please provide For1, For
2 and For3 screens or Foreclosure (Service Release report).
Preliminary report should be provided within 3 days after each
date a Mortgage Loan is designated a Specially Serviced
Mortgage Loan and a final report at the time of the transfer.
C. Name and address listing of foreclosure attorneys/ Preliminary
report should be provided within 3 days after each date a
Mortgage Loan is designated a Specially Serviced Mortgage
Loan.
D. Listing of any loans pending a Refunding to the Va., HUD
Assignment, approved Dil, Presale or Partial Claim/
Preliminary report should be provided within 3 days after each
date a Mortgage Loan is designated a Specially Serviced
Mortgage Loan and a final report at the time of the transfer.
E. Listing of any loan currently in litigation and a report to be
provided at time of transfer.
F. Listing of loans with escrow advances due to delinquency,
include breakdown with bills and ledgers attached and
reconciled (90, 60, 30) / Report to be provided at time of
transfer.
5
G. Report of delinquent loans 90 days or older that are not
active in foreclosure and or bankruptcy; list date of breach
letter and provide copies of breach letter for our file.
H. Vendor invoices to be paid up to the transfer date.
I. Report of any loans on a stipulation or payment agreement and
a copy of the agreement to be included in the file.
J. The name of the beneficiary they are using for foreclosures.
K. Files for foreclosures, bankruptcies, claims, breached loans,
repayment plans and active loss mitigation accounts must be
sorted and identified separately by marking the front of the
file or boxing separately.
L. Trailing correspondence should be sent weekly with the
exception of checks or money orders which should be forwarded
daily.
M. Foreclosure files should be sent to the following address:
XXXXXX LOAN SERVICING LP
ATTN: XXXXXXXX XXXX
0000 XXXX XXXXXXX XXXXX
XXXXXXX, XX 00000
XIV. BANKRUPTCY
Listing of loans active in bankruptcy, sorted by state, including the
following information. (a) Type of Chapter filed (b) Date Bankruptcy
filed (c) Case Number. Alltel users please provide BNK1 or Bankruptcy
Service Release report. Final report provided within 5 business days of
transfer.
A. Listing showing names and address of the debtor's attorney,
Seller's attorney and Bankruptcy Trustee. A preliminary report
should be provided within 3 days after each date a Mortgage
Loan is designated a Specially Serviced Mortgage Loan and a
final provided on the date of the transfer.
B. Listing of pending relief of stays.
C. Loan level listing of all loans with agreed orders or
stipulation agreements with the current status on each of the
cases.
D. Listing of loans with escrow advances due to bankruptcy.
Include breakdown with xxxx and ledgers attached and
reconciled (90, 60, 30 days).
E. Copies of letters to bankruptcy attorney advising of the
transfer.
F. List of any cramdowns.
G. Files should be sorted and clearly marked for special
handling.
6
H. Files should have the status shown on the front of each file
and status screen prints included in each file.
I. Provide a status report that includes attorney's name and
phone number, chapter, case number, pre-petition due date,
post petition due date and motion status if filed as of the
transfer date.
J. Bankruptcy files should be sent to the following address:
XXXXXX LOAN SERVICING LP
ATTN: XXXXXXXX XXXX
0000 XXXX XXXXXXX XXXXX
XXXXXXX, XX 00000
XV. LOSS MITIGATION
A. Short Sale
1. Recent Property Valuation
2. Sales Contract
3. HUD-1 Settlement Statement, estimated
4. Realtor/Broker contact information
5. Borrower financials
6. Borrower hardship letter
7. Approval letter (if approved and not closed prior to
servicing transfer)
B. Modification: A final report should be provided within 5
business days of servicing transfer date.
1. Recent Property Valuation
2. Title Search
3. Modification Agreement or terms of Modification
4. Document/Title co. contact information
5. Borrower financials
6. Borrower hardship letter
7. Identification of any funds collected in conjunction
with modification.
C. Deed-in-Lieu of `Foreclosure
1. Recent Property Valuation
2. Title Search
3. D-I-L Agreement
4. Document/Title co. contact information
5. Borrower financials
6. Borrower hardship letter
D. Partial-Claims
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1. Borrower financials
2. Borrower hardship letter
3. HUD Insurance Certificate
4. Identify prior partial claim filings if applicable
XVI. OTHER
A. Provide current year's loan history to the transfer date plus
the four prior calendar year's loan histories accompanied by
an explanation of your transaction codes. History should be
provided in an electronic file or hard copy. A preliminary
report should be forwarded within 3 days after each date a
Mortgage Loan is designated a Specially Serviced Mortgage Loan
and the final within 2 days after servicing transfer date.
B. Provide copies of the last two-escrow analysis with an
explanation of your analysis method (cushion, etc.).
C. Provide the currently active collection records and pertinent
information on delinquent loans along with FICO scores, BPO
values, extension data and payment plan data. A preliminary
report should be forwarded within 3 days after each date a
Mortgage Loan is designated a Specially Serviced Mortgage Loan
and the final at servicing transfer date. This information
should be provided in an electronic file or hard copy.
D. Your check for the escrow balances matching the cut-off trial
balance.
E. Your check for any unapplied funds and an indication as to how
each unapplied payment should be applied.
F. Loan payments and/or payoff funds received after the cut-off
should be endorsed to Xxxxxx Loan Servicing LP and forwarded
by overnight service to the following address within
twenty-four hours, properly identified with your loan number.
XXXXXX LOAN SERVICING LP
ATTN: CASHIERING DEPARTMENT
0000 XXXX XXXXXXX XXXXX
XXXXXXX, XX 00000
G. Please ship the entire loan file (hard, microfiche or imaged)
and all documents to LLS to be received by the transfer date.
Provide electronic inventory ledger with servicing files to
identify loans within each box. Any information such as
preliminary trial balances, master file data records, default
information, previous year's ledger histories, etc. should be
furnished as early as possible prior to the transfer date. Any
file sent to LLS that we will not be servicing will be
returned via uninsured regular mail unless LLS is supplied
with shipping instructions and method of payment.
All servicing files should be sent to:
8
Xxxxxx Loan Servicing LP
Attn: Records Management Department
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
H. All reports such as trial balances, master file data records,
default information, histories, etc. should be sent to :
Xxxxxx Loan Servicing LP
Attn: Xxx Xxxxxx
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Remember it is your responsibility to furnish all required IRS reporting
statements on these loans for the current year up to the transfer date both to
the mortgagors and to the appropriate government agencies.
Your cooperation in expediting this transfer is appreciated. Should you or any
member of your staff have any questions concerning this transfer, please feel
free to call me or the appropriate individual listed below at 0-000-000-0000.
CONTACT DEPARTMENT EXTENSION
Xxxxx Xxxxxxx
XXXXXXXX@XXXXXX.X-XXXX.XXX ARM's 8967
Xxxx Xxxxxxx
xxxx.xxxxxxx@xxxxxx.x-xxxx.xxx ARM's 8921
Xxx Xxxxxx
XXXXXXX@XXXXXX.X-XXXX.XXX Conversion Manager 8928
Carletta Lott
XXXXX@XXXXXX.X-XXXX.XXX Foreclosure/Bankruptcy 8723
Xxxxxx Xxxxxxx
XXXXXXXX@XXXXXX.X-XXXX.XXX Insurance 8868
Xxxxxxx Xxxxxx
XXXXXXX@XXXXXX.X-XXXX.XXX Investor Accounting 8929
Xxxxxx Xxxxxx
Xxxxxx.xxxxxx@xxxxxx.x-xxxx.xxx Payoffs 8880
Xxxxxx XxXxxxx Senior Vice President, Loan
XXXXXXXX@XXXXXX.X-XXXX.XXX Administration 8801
Xxx Xxxxxxxx
9
XXXXXXXX@XXXXXX.X-XXXX.XXX Servicing Manager 8959
Xxxxx Xxxxxx 8881
XXXXXXX@XXXXXX.X-XXXX.XXX Tax
10
Exhibit A
OPERATIONAL REQUIREMENTS
1.) REPORT DATE/REPORT REQUIREMENT. Special Servicer report date (the "Report
Date") to the Trustee, as required by this Agreement and the Pooling and
Servicing Agreement, shall be on or before the second Business Day
following each Determination Date. The Special Servicer shall report to
the Trustee, as required by this Agreement and the Pooling and Servicing
Agreement, on Mortgage Loans that are on the Special Servicer's system as
of the calendar month end prior to such Report Date. Reports from Special
Servicer to Trustee shall be in a complete data file that can be
customized to meet the Pooling and Servicing Agreement reporting
requirements and shall be transmitted electronically to the Trustee.
2.) REMITTANCE DATE. The Special Servicer remittance date to the Trustee, as
required by this Agreement, shall be on or before the Business Day prior
to the Master Servicer Remittance Date of the related reporting month.
3.) LOAN TRANSFER/PRIOR MONTH REPORT TO TRUST. The Company shall provide the
Special Servicer a copy of the previous month's report to the Trustee.
4.) SERVICING FEE. The Special Servicer shall net its servicing fee on all
collections remitted to the Trustee.
5.) LOAN TRANSFER WIRE AND ADVANCE RECONCILIATION. Within five (5) Business
Days of the Special Servicer's receipt of the computer records required
pursuant to Section 2.01, the Special Servicer shall remit to the Company,
by wire transfer of immediately available funds, an amount equal to the
sum of the P&I Advances outstanding as of the Transfer Date, and the
aggregate amount of Servicing Advances and escrow advances, net of any
positive escrows. The Special Servicer and Company shall, within fifteen
(15) Business Days following the Transfer Date, make such further monetary
adjustments between them as shall be necessary to ensure the proper
payment of the advance amount by the Special Servicer to the Company.
6.) SERVICING ADVANCE RECONCILIATION. The Company shall provide the Special
Servicer customary documentation (electronic format or invoice with
amount, type, and reason for advance) on all such Servicing Advances as
described in item 5 above. The Special Servicer shall then reimburse any
such reimbursable advances to the Company within five (5) business days of
the Company's presentation of such supporting documentation to the Special
Servicer; provided that, the Special Servicer shall not reimburse the
Company for items such as demand letter fees, interest on advances, and
any other similar fees.
7.) LIFE OF LOAN TAX CONTRACT. The Company agrees to transfer life of loan tax
contracts to the Special Servicer; provided that, the tax service
contracts are transferred to the Special Servicer at no cost. For Mortgage
Loans without tax service contracts, the Special Servicer may deduct from
its remittance to the Company $50 per Mortgage Loan to purchase such tax
service contracts.
8.) FLOOD CERTIFICATES. The Company agrees to transfer flood certificates to
the Special Servicer, provided that the flood certificates are transferred
to the Special Servicer at no cost. For Mortgage Loans without a flood
certificate, the Special Servicer may deduct from its remittance to the
Company $35 per Mortgage Loan to purchase such flood certificate.
9.) REBATABLE POINTS AND FEES. In the event a loan pays in full and rebatable
points and fees are due the Mortgagor, the Company shall reimburse the
Special Servicer within thirty (30) days of receipt of the notice provided
to the Company.
Exhibit B
FORM OF BACK UP CERTIFICATION TO COMPANY BY THE SPECIAL SERVICER
RE: CITIGROUP MORTGAGE LOAN TRUST INC., MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2004-NCM1: SPECIAL SERVICING AGREEMENT DATED AS OF JUNE 29, 2004 AMONG
NATIONAL CITY MORTGAGE CO., XXXXXX LOAN SERVICING LP AND U.S. BANK NATIONAL
ASSOCIATION (THE "SPECIAL SERVICING AGREEMENT")
I, [__________], [Senior Vice President] of Xxxxxx Loan Servicing LP,
certify to National City Mortgage Co. (the "Company") and its respective
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the information provided to the Trustee by the Special
Servicer pursuant to the Special Servicing Agreement for the calendar year
[___] relating to the Specially Serviced Mortgage Loans (the "Servicing
Information");
2. Based on my knowledge, the Servicing Information, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period related to the Servicing Information;
3. Based on my knowledge, the Servicing Information is correct;
4. I am responsible for reviewing the activities performed by the Special
Servicer under the Special Servicing Agreement and based upon the review
required under the Special Servicing Agreement, and except as disclosed to
the Trustee and the Company, the Special Servicer has fulfilled its
obligations under the Special Servicing Agreement; and
5. I have disclosed to the Special Servicer's certified public accountants
and the Company all significant deficiencies relating to the Special
Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Special Servicing Agreement.
Date: ____________________________ XXXXXX LOAN SERVICING LP
By: ______________________________
Name:
Title:
EXHIBIT L
FORM OF POWER OF ATTORNEY
L-1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
XXXXXX LOAN SERVICING LP
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that _______________________________, having its
principal place of business at _______________________________ , as Trustee (the
"Trustee") pursuant to that Pooling and Servicing Agreement among
_______________________________(the "Depositor"), Xxxxxx Loan Servicing LP (the
"Servicer"), and the Trustee, dated as of ____________________1, 200__ (the
"Pooling and Servicing Agreement"), hereby constitutes and appoints the
Servicer, by and through the Servicer's officers, the Trustee's true and lawful
Attorney-in-Fact, in the Trustee's name, place and stead and for the Trustee's
benefit, in connection with all mortgage loans serviced by the Servicer pursuant
to the Pooling and Servicing Agreement for the purpose of performing all acts
and executing all documents in the name of the Trustee as may be customarily and
reasonably necessary and appropriate to effectuate the following enumerated
transactions in respect of any of the mortgages or deeds of trust (the
"Mortgages" and the "Deeds of Trust", respectively) and promissory notes secured
thereby (the "Mortgage Notes") for which the undersigned is acting as Trustee
for various certificateholders (whether the undersigned is named therein as
mortgagee or beneficiary or has become mortgagee by virtue of endorsement of the
Mortgage Note secured by any such Mortgage or Deed of Trust) and for which the
Servicer is acting as servicer, all subject to the terms of the Pooling and
Servicing Agreement.
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage or Deed of Trust, where
said modification or re-recordings is for the purpose of correcting the
Mortgage or Deed of Trust to conform same to the original intent of the
parties thereto or to correct title errors discovered after such title
insurance was issued and said modification or re-recording, in either
instance, does not adversely affect the lien of the Mortgage or Deed of
Trust as insured.
2. The subordination of the lien of a Mortgage or Deed of Trust to an
easement in favor of a public utility company of a government agency or
unit with powers of eminent domain; this section shall include, without
limitation, the execution of partial satisfactions/releases, partial
reconveyances or the execution or requests to trustees to accomplish
same.
3. The conveyance of the properties to the mortgage insurer, or the
closing of the title to the property to be acquired as real estate
owned, or conveyance of title to real estate owned.
4. The completion of loan assumption agreements.
5. The full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage
Note.
6. The assignment of any Mortgage or Deed of Trust and the related
Mortgage Note, in connection with the repurchase of the mortgage loan
secured and evidenced thereby.
7. The full assignment of a Mortgage or Deed of Trust upon payment and
discharge of all sums secured thereby in conjunction with the
refinancing thereof, including, without limitation, the assignment of
the related Mortgage Note.
8. With respect to a Mortgage or Deed of Trust, the foreclosure, the
taking of a deed in lieu of foreclosure, or the completion of judicial
or non-judicial foreclosure or termination, cancellation or rescission
of any such foreclosure, including, without limitation, any and all of
the following acts:
a. the substitution of trustee(s) serving under a Deed of Trust,
in accordance with state law and the Deed of Trust;
b. the preparation and issuance of statements of breach or
non-performance;
c. the preparation and filing of notices of default and/or
notices of sale;
d. the cancellation/rescission of notices of default and/or
notices of sale;
e. the taking of a deed in lieu of foreclosure; and
f. the preparation and execution of such other documents and
performance of such other actions as may be necessary under
the terms of the Mortgage, Deed of Trust or state law to
expeditiously complete said transactions in paragraphs 8.a.
through 8.e., above.
The undersigned gives said Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby does
ratify and confirm to all that said Attorney-in-Fact shall lawfully do or cause
to be done by authority hereof.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect and has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
IN WITNESS WHEREOF, ________________________________ as Trustee pursuant to that
Pooling and Servicing Agreement among the Depositor, the Servicer, and the
Trustee, dated as of _______________ 1, 200__ (____________________________
Mortgage Loan Asset Backed Certificates, Series 200__-___), has caused its
corporate seal to be hereto affixed and these presents to be signed and
acknowledged in its name and behalf by its duly elected and authorized Vice
President this day of , 200__.
________________________________________
as Trustee for _____ Mortgage Loan Asset
Backed Certificates, Series 200__-___
By _____________________________________
STATE OF __________
COUNTY OF _________
On ______________ _______, 200__, before me, the undersigned, a Notary Public in
and for said state, personally appeared _________________________, Vice
President of ____________________________ as Trustee for _______________
Mortgage Loan Asset Backed Certificates, Series 200__-___, personally known to
me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed that same in his/her authorized
capacity, and that by his/her signature on the instrument the entity upon behalf
of which the person acted and executed the instrument.
WITESS my hand and official seal.
(SEAL)
____________________________________
Notary Public
My Commission Expires ________________________
Schedule 1
MORTGAGE LOAN SCHEDULE
[FILED BY PAPER]
Schedule 1-1
Schedule 2
MORTGAGE LOANS COVERED BY A PRIMARY MORTGAGE INSURANCE POLICY
Available Upon Request
Schedule 2-1
