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Exhibit 4.1
NATIONAL CITY MORTGAGE CAPITAL LLC
Depositor
NATIONAL CITY MORTGAGE CO.
Servicer
and
[NAME OF TRUSTEE]
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of ____ 1, 20__
[National City Mortgage Capital LLC [Mortgage] Loan Trust],
Series 20__-____
Mortgage Backed Pass-Through Certificates
Series 20__-____
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
SECTION 1.02. Allocation of Certain Interest Shortfalls
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans
SECTION 2.02. Acceptance of REMIC I by Trustee
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by
the Originator
SECTION 2.04. Reserved
SECTION 2.05. Representations, Warranties and Covenants of the
Servicer
SECTION 2.06. Issuance of the REMIC I Regular Interests and the
Class R-I
Interest
SECTION 2.07. Conveyance of the REMIC I Regular Interests;
Acceptance of REMIC
II by the Trustee
SECTION 2.08. Issuance of Class R Certificates
SECTION 2.09. Conveyance of the Class M-3 Interest; Acceptance
of REMIC III by
the Trustee
SECTION 2.10. Conveyance of the Class M-4 Interest; Acceptance
of REMIC IV by
the Trustee
SECTION 2.11. Conveyance of the Class M-5 Interest; Acceptance
of REMIC V by
the Trustee
SECTION 2.12. Conveyance of the Class CE Interest; Acceptance of
REMIC VI by
the Trustee
SECTION 2.13. Conveyance of the Class P Interest; Acceptance of
REMIC VII by
the Trustee
SECTION 2.14. Issuance of Class R-X Certificates
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer
SECTION 3.02. Sub-Servicing Agreements Between Servicer and
Sub-Servicers
SECTION 3.03. Successor Sub-Servicers
SECTION 3.04. No Contractual Relationship Between Sub-Servicer,
Trustee or the
Certificateholders
SECTION 3.05. Assumption or Termination of Sub-Servicing
Agreement by Trustee
SECTION 3.06. [Reserved]
SECTION 3.07. Collection of Certain Mortgage Loan Payments
SECTION 3.08. Sub-Servicing Accounts
SECTION 3.09. Collection of Taxes, Assessments and Similar
Items; Servicing
Accounts
SECTION 3.10. Collection Account, Distribution Account and
Initial Deposit
Accounts
SECTION 3.11. Withdrawals from the Collection Account and
Distribution Account
SECTION 3.12. Investment of Funds in the Investment Accounts
SECTION 3.13. [Reserved]
SECTION 3.14. Maintenance of Hazard Insurance and Errors and
Omissions and
Fidelity Coverage
SECTION 3.15. Enforcement of Due-on-Sale Clauses; Assumption
Agreements
SECTION 3.16. Realization Upon Defaulted Mortgage Loans
SECTION 3.17. Trustee to Cooperate; Release of Mortgage
Files
SECTION 3.18. Servicing Compensation
SECTION 3.19. Reports to the Trustee; Collection Account
Statements
SECTION 3.20. Statement as to Compliance
SECTION 3.21. Independent Public Accountants' Servicing
Report
SECTION 3.22. Access to Certain Documentation
SECTION 3.23. Title, Management and Disposition of REO
Property
SECTION 3.24. Obligations of the Servicer in Respect of
Prepayment Interest
Shortfalls
SECTION 3.25. [Reserved]
SECTION 3.26. Obligations of the Servicer in Respect of Mortgage
Rates and
Monthly Payments
SECTION 3.27. Net WAC Rate Carryover Reserve Account
SECTION 3.28. Advance Facility
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
SECTION 4.02. Statements to Certificateholders
SECTION 4.03. Remittance Reports; Advances
SECTION 4.04. Allocation of Realized Losses
SECTION 4.05. Compliance with Withholding Requirements
SECTION 4.06. Exchange Commission; Additional Information
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
SECTION 5.02. Registration of Transfer and Exchange of
Certificates
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates
SECTION 5.04. Persons Deemed Owners
SECTION 5.05. Certain Available Information
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01. Liability of the Depositor and the Servicer
SECTION 6.02. Merger or Consolidation of the Depositor or the
Servicer
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer and
Others
SECTION 6.04. Limitation on Resignation of the Servicer
SECTION 6.05. Rights of the Depositor in Respect of the
Servicer
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Default
SECTION 7.02. Trustee to Act; Appointment of Successor
SECTION 7.03. Notification to Certificateholders
SECTION 7.04. Waiver of Servicer Events of Default
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
SECTION 8.02. Certain Matters Affecting the Trustee
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage
Loans
SECTION 8.04. Trustee May Own Certificates
SECTION 8.05. Trustee's Fees and Expenses
SECTION 8.06. Eligibility Requirements for Trustee
SECTION 8.07. Resignation and Removal of the Trustee
SECTION 8.08. Successor Trustee
SECTION 8.09. Merger or Consolidation of Trustee
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
SECTION 8.11. Reserved..
SECTION 8.12. Appointment of Office or Agency
SECTION 8.13. Representations and Warranties of the Trustee
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans
SECTION 9.02. Additional Termination Requirements
ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration
SECTION 10.02. Prohibited Transactions and Activities
SECTION 10.03. Servicer and Trustee Indemnification
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment
SECTION 11.02. Recordation of Agreement; Counterparts
SECTION 11.03. Limitation on Rights of Certificateholders
SECTION 11.04. Governing Law
SECTION 11.05. Notices
SECTION 11.06. Severability of Provisions
SECTION 11.07. Notice to Rating Agencies
SECTION 11.08. Article and Section References
SECTION 11.09. Grant of Security Interest
<PAGE>
EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 Form of Class M-1 Certificate
Exhibit A-3 Form of Class M-2 Certificate
Exhibit A-4 Form of Class M-3 Certificate
Exhibit A-5 Form of Class M-4 Certificate
Exhibit A-6 Form of Class M-5 Certificate
Exhibit A-7 Form of Class CE Certificate
Exhibit A-8 Form of Class P Certificate
Exhibit A-9 Form of Class R Certificate
Exhibit A-10 Form of Class R-X Certificate
Exhibit B [Reserved]
Exhibit C-1 Form of Trustee's Initial Certification
Exhibit C-2 Form of Trustee's Final Certification
Exhibit D-1 Form of [____] Mortgage Loan Purchase Agreement
Exhibit D-2 Form of [____] Mortgage Loan Purchase Agreement
Exhibit E Request for Release
Exhibit F-1 Form of Transferor Representation Letter and Form
of
Transferee Representation Letter in Connection with
Transfer of the Private Certificates Pursuant to Rule 144A
Under the 1933 Act
Exhibit F-2 Form of Transfer Affidavit and Agreement and Form
of
Transferor Affidavit in Connection with Transfer of Residual
Certificates
Exhibit G Form of Certification with respect to ERISA and the
Code
Exhibit H [Reserved]
Exhibit I [Reserved]
Exhibit J Form of Officer's Certificate with respect to
Prepayments
Exhibit K Form of Lost Note Affidavit
Exhibit L-1 Form of Certification to Be Provided by the
Depositor with
Form 10-K
Exhibit L-2 Form of Certification to Be Provided to Depositor by
the
Trustee
Exhibit L-3 Form of Certification to Be Provided to Depositor by
the
Servicer
Schedule 1 Mortgage Loan Schedule
Schedule 2 Prepayment Charge Schedule
<PAGE>
This Pooling and Servicing Agreement, is dated and effective
as of ____ 1, 20__, among National City Mortgage Capital LLC, as
Depositor,
National City Mortgage Co., as Servicer and [NAME OF TRUSTEE] as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates to
be
issued hereunder in multiple classes, which in the aggregate
will evidence the
entire beneficial ownership interest in each REMIC (as defined
herein) created
hereunder. The Trust Fund will consist of a segregated pool of
assets comprised
of the Mortgage Loans and certain other related assets subject
to this
Agreement.
REMIC I
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and
certain other
related assets (other than the Servicer Prepayment Charge
Payment Amount and the
Net WAC Rate Carryover Reserve Account) 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-LTAA Variable(2)
I-LTA Variable(2)
I-LTM1 Variable(2)
I-LTM2 Variable(2)
I-LTM3 Variable(2)
I-LTM4 Variable(2)
I-LTM5 Variable(2)
I-LTZZ Variable(2)
I-LTP Variable(2)
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date immediately following the
maturity date
for the Mortgage Loan with the latest maturity date has been
designated as
the "latest possible maturity date" for each REMIC I Regular
Interest.
(2) Calculated in accordance with the definition of "REMIC I
Remittance Rate"
herein.
<PAGE>
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 evidence
the sole class
of "residual interests" in REMIC II for purposes of the REMIC
Provisions under
federal income tax law. The following table irrevocably sets
forth the
designation, the Pass-Through Rate, the initial aggregate
Certificate Principal
Balance and, solely for purposes of satisfying Treasury
regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the
indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class A Variable(2)
Class M-1 Variable(2)
Class M-2 Variable(2)
Class M-3 Interest Variable(2)
Class M-4 Interest Variable(2)
Class M-5 Interest Variable(2)
Class CE Interest Variable(3)
Class P Interest N/A(4)
---------------
(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 Loans with the latest maturity date has been
designated as
the "latest possible maturity date" for each Class of
Certificates.
(2) Calculated in accordance with the definition of
"Pass-Through Rate" herein.
(3) The Class CE Interest will accrue interest at its variable
Pass-Through
Rate on the Notional Amount of the Class CE Interest outstanding
from time
to time which shall equal the Uncertificated Balance of the
REMIC I Regular
Interests. The Class CE Interest will not accrue interest on
its
Certificate Principal Balance.
(4) The Class P Interest will not accrue interest.
<PAGE>
REMIC III
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Class M-3 Interest
as a REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC III." The Class R-III Interest will
evidence 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 aggregate
Certificate Principal
Balance and, solely for purposes of satisfying Treasury
regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the
indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class M-3 Variable(2)
---------------
(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 Loans with the latest maturity date has been
designated as
the "latest possible maturity date" for each Class of
Certificates.
(2) The Class M-3 Certificates will receive 100% of amounts
received in respect
of the Class M-3 Interest.
<PAGE>
REMIC IV
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Class M-4 Interest
as a REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC IV." The Class R-IV Interest will evidence
the sole class
of "residual interests" in REMIC IV for purposes of the REMIC
Provisions under
federal income tax law. The following table irrevocably sets
forth the
designation, the Pass-Through Rate, the initial aggregate
Certificate Principal
Balance and, solely for purposes of satisfying Treasury
regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the
indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class M-4 Variable(2)
---------------
(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 Loans with the latest maturity date has been
designated as
the "latest possible maturity date" for each Class of
Certificates.
(2) The Class M-4 Certificates will receive 100% of amounts
received in respect
of the Class M-5 Interest.
<PAGE>
REMIC V
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Class M-5 Interest
as a REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC V." The Class R-V Interest will evidence
the sole class of
"residual interests" in REMIC V for purposes of the REMIC
Provisions under
federal income tax law. The following table irrevocably sets
forth the
designation, the Pass-Through Rate, the initial aggregate
Certificate Principal
Balance and, solely for purposes of satisfying Treasury
regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the
indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class M-5 Variable(2)
---------------
(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 Loans with the latest maturity date has been
designated as
the "latest possible maturity date" for each Class of
Certificates.
(2) The Class M-5 Certificates will receive 100% of amounts
received in respect
of the Class M-5 Interest.
<PAGE>
REMIC VI
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Class CE Interest as
a REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC VI." The Class R-VI Interest will evidence
the sole class
of "residual interests" in REMIC VI for purposes of the REMIC
Provisions under
federal income tax law. The following table irrevocably sets
forth the
designation, the Pass-Through Rate, the initial aggregate
Certificate Principal
Balance and, solely for purposes of satisfying Treasury
regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the
indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class CE Variable(2)
---------------
(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 Loans with the latest maturity date has been
designated as
the "latest possible maturity date" for each Class of
Certificates.
(2) The Class CE Certificates will receive 100% of amounts
received in respect
of the Class CE Interest.
<PAGE>
REMIC VII
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Class P Interest as
a REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC VII." The Class R-VII Interest will
evidence the sole class
of "residual interests" in REMIC VII for purposes of the REMIC
Provisions under
federal income tax law. The following table irrevocably sets
forth the
designation, the Pass-Through Rate, the initial aggregate
Certificate Principal
Balance and, solely for purposes of satisfying Treasury
regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the
indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class P(2) N/A
---------------
(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 Loans with the latest maturity date has been
designated as
the "latest possible maturity date" for each Class of
Certificates.
(2) The Class P Certificates will receive 100% of amounts
received in respect
of the Class P Interest.
As of the Cut-off Date, the Mortgage Loans had an aggregate
principal balance equal to $[__].
In consideration of the mutual agreements herein contained,
the Depositor, the Servicer and the Trustee agree as
follows:
<PAGE>
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.
"Accepted Servicing Practices": The servicing standards set
forth in Section 3.01.
"[____] Mortgage Loan": Each Mortgage Loan originated by
[____].
"[____] Mortgage Loan Purchase Agreement": The agreement
among
[____], the Seller and the Depositor, regarding the sale of the
[____] Mortgage
Loans by the Seller to the Depositor, substantially in the form
of Exhibit D-1
annexed hereto.
"Accrued Certificate Interest": With respect to any Class A
Certificate, Mezzanine Certificate, the Class CE Interest and
each Distribution
Date, interest accrued during the related Interest Accrual
Period at the
Pass-Through Rate for such Certificate for such Distribution
Date on the
Certificate Principal Balance, in the case of the Class A
Certificates and the
Mezzanine Certificates, or on the Notional Amount, in the case
of the Class CE
Interest, of such Certificate immediately prior to such
Distribution Date. The
Class P Interest is not entitled to distributions in respect of
interest and,
accordingly, will not accrue interest. All distributions of
interest on the
Class A Certificates and the Mezzanine Certificates will be
calculated on the
basis of a 360-day year and the actual number of days in the
applicable Interest
Accrual Period. All distributions of interest on the Class CE
Interest will be
based on a 360-day year consisting of twelve 30-day months.
Accrued Certificate
Interest with respect to each Distribution Date, as to any Class
A Certificate,
Mezzanine Certificate or the Class CE Interest, shall be reduced
by an amount
equal to the portion allocable to such Certificate pursuant to
Section 1.02
hereof of the sum of (a) the aggregate Prepayment Interest
Shortfall, if any,
for such Distribution Date to the extent not covered by payments
pursuant to
Section 3.24 and (b) the aggregate amount of any Relief Act
Interest Shortfall,
if any, for such Distribution Date. In addition, Accrued
Certificate Interest
with respect to each Distribution Date, as to the Class CE
Interest shall be
reduced by an amount equal to the portion allocable to the Class
CE Interest of
Realized Losses, if any, pursuant to Section 4.04 hereof.
"Adjustable-Rate Mortgage Loan": Each of the Mortgage Loans
identified on the Mortgage Loan Schedule as having a Mortgage
Rate that is
subject to adjustment.
"Adjustment Date": With respect to each Adjustable-Rate
Mortgage Loan, the first day of the month in which the Mortgage
Rate of such
Mortgage Loan changes pursuant to the related Mortgage Note. The
first
Adjustment Date following the Cut-off Date as to each
Adjustable-Rate Mortgage
Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan, any advance made by the
Servicer in respect of any Distribution Date pursuant to Section
4.03.
"Advance Facility": As defined in Section 3.28(a) hereof.
"Advance Facility Notice": As defined in Section 3.28(b)
hereof.
"Advance Financing Person": As defined in Section 3.28(a)
hereof.
"Advance Reimbursement Amounts": As defined in Section
3.28(b)
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.
"Assignment": An assignment of Mortgage, notice of transfer
or
equivalent instrument, in recordable form (excepting therefrom,
if applicable,
the mortgage recordation information which has not been required
pursuant to
Section 2.01 hereof or returned by the applicable recorder's
office), 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, which
assignment, notice of transfer or equivalent instrument may be
in the form of
one or more blanket assignments covering Mortgages secured by
Mortgaged
Properties located in the same county, if permitted by law.
"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
attributable to the Mortgage Loans as of the close of business
on the related
Determination Date, (b) the aggregate of any amounts received in
respect of an
REO Property 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
Servicer in respect
of Prepayment Interest Shortfalls attributable to the Mortgage
Loans for such
Distribution Date pursuant to Section 3.24, (d) the aggregate of
any Advances
attributable to the Mortgage Loans made by the Servicer for such
Distribution
Date pursuant to Section 4.03 and (e) the aggregate of any
advances made by the
Trustee as successor Servicer or any other successor Servicer
for such
Distribution Date pursuant to Section 7.02(b), 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 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
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 Mortgage Loans during a
period subsequent
to the related Prepayment Period) (other than Prepayment
Charges), (iii)
Liquidation Proceeds and Insurance Proceeds received in respect
of the Mortgage
Loans after the related Prepayment Period, (iv) amounts
reimbursable or payable
to the Depositor, the Servicer, the Trustee, the Seller or any
Sub-Servicer
pursuant to Section 3.11, Section 3.12, Section 8.05 or
otherwise payable in
respect of Extraordinary Trust Fund Expenses attributable to the
Mortgage Loans,
(v) the Trustee Fee payable from the Distribution Account
pursuant to Section
8.05, (vi) amounts deposited in the Collection Account or the
Distribution
Account in error and (vii) the amount of any Prepayment Charges
collected by the
Servicer in connection with the Principal Prepayment of any of
the Mortgage
Loans or any Servicer Prepayment Charge Payment Amount with
respect to the
Mortgage Loans.
"Balloon Mortgage Loan": A Mortgage Loan that provides for
the
payment of the unamortized principal balance of such Mortgage
Loan in a single
payment at the maturity of such Mortgage Loan that is
substantially greater than
the preceding monthly payment.
"Balloon Payment": A payment of the unamortized principal
balance of a Mortgage Loan in a single payment at the maturity
of such Mortgage
Loan that is substantially greater than the preceding Monthly
Payment.
"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": The Class A Certificates and the
Mezzanine Certificates for so long as the Certificates of such
Class shall be
registered in the name of the Depository or its nominee.
"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
California, the State of New York 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.
"Cash-Out Refinancing": A Refinanced Mortgage Loan the
proceeds of which are more than a nominal amount 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 [National City Mortgage
Capital
LLC [Mortgage] Loan Trust], Series 20__-____, Mortgage Backed
Pass-Through
Certificates, Class A, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5,
Class CE, Class P, Class R and Class R-X issued under this
Agreement.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any Distribution Date, a fraction, expressed
as a decimal
carried to six places, the numerator of which is the aggregate
Certificate
Principal Balance (or the Notional Amount, in the case of the
Class CE
Certificates) of such Class of Certificates on such Distribution
Date (after
giving effect to any distributions of principal and in the case
of the Mezzanine
Certificates and the Class CE Certificates, the allocations of
Realized Losses
in reduction of the Certificate Principal Balance (or the
Notional Amount, in
the case of the Class CE Certificates) of such Class of
Certificates to be made
on such Distribution Date), and the denominator of which is the
initial
aggregate Certificate Principal Balance (or the Notional Amount,
in the case of
the Class CE Certificates) of such Class of Certificates as of
the Closing Date.
"Certificate Margin": With respect to the Class A-1
Certificates, [__]% in the case of each Distribution Date
through and including
the Distribution Date on which the aggregate Principal Balance
of the Mortgage
Loans (and properties acquired in respect thereof) remaining in
the Trust Fund
is reduced to less than 10% of the aggregate Principal Balance
of the Mortgage
Loans as of the Cut-off Date and [__]% in the case of each
Distribution Date
thereafter.
With respect to the Class M-1 Certificates, [__]% in the
case
of each Distribution Date through and including the Distribution
Date on which
the aggregate Principal Balance of the Mortgage Loans (and
properties acquired
in respect thereof) remaining in the Trust Fund is reduced to
less than 10% of
the aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date and
[__]% in the case of each Distribution Date thereafter.
With respect to the Class M-2 Certificates, [__]% in the
case
of each Distribution Date through and including the Distribution
Date on which
the aggregate Principal Balance of the Mortgage Loans (and
properties acquired
in respect thereof) remaining in the Trust Fund is reduced to
less than 10% of
the aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date and
[__]% in the case of each Distribution Date thereafter.
With respect to the Class M-3 Interest, [__]% in the case of
each Distribution Date through and including the Distribution
Date on which the
aggregate Principal Balance of the Mortgage Loans (and
properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less
than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date and
[__]% in the case of each Distribution Date thereafter.
With respect to the Class M-4 Interest, [__]% in the case of
each Distribution Date through and including the Distribution
Date on which the
aggregate Principal Balance of the Mortgage Loans (and
properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less
than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date and
[__]% in the case of each Distribution Date thereafter.
With respect to the Class M-5 Interest, [__]% in the case of
each Distribution Date through and including the Distribution
Date on which the
aggregate Principal Balance of the Mortgage Loans (and
properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less
than 10% of the
aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date and
[__]% in the case of each Distribution Date thereafter.
"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 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 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.
"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 each Class
A
Certificate, Mezzanine Certificate or Class P Interest as of any
date of
determination, the Certificate Principal Balance of such
Certificate on the
Distribution Date immediately prior to such date of
determination, minus all
distributions allocable to principal made thereon and, in the
case of the
Mezzanine Certificates, Realized Losses allocated thereto on
such immediately
prior Distribution Date (or, in the case of any date of
determination up to and
including the first Distribution Date, the initial Certificate
Principal Balance
of such Certificate, as stated on the face thereof). With
respect to each Class
CE Interest as of any date of determination, an amount equal to
the Percentage
Interest evidenced by such Certificate times the excess, if any,
of (A) the then
aggregate Uncertificated Balances of the REMIC I Regular
Interests over (B) the
then aggregate Certificate Principal Balances of the Class A
Certificates, the
Mezzanine Certificates and the Class P Certificates then
outstanding. With
respect to each Class of Certificates, the aggregate of the
Certificate
Principal Balances of the Certificates of such Class.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same class designation.
"Class A Certificates": Any one of the Class A 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 II for
purposes of the REMIC Provisions.
"Class A Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the Certificate Principal
Balance of the
Class A Certificates immediately prior to such Distribution Date
over (y) the
lesser of (A) the product of (i) [__]% and (ii) the aggregate
Stated Principal
Balance of the Mortgage Loans as of the last day of the related
Due Period and
(B) the aggregate Stated Principal Balance of the Mortgage Loans
as of the last
day of the related Due Period minus $[__].
"Class CE Certificate": Any one of the Class CE 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 VI for
purposes of the REMIC Provisions.
"Class CE Interest": An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the Holders of the Class
CE Certificates,
evidencing a Regular Interest in REMIC II for purposes of the
REMIC Provisions.
"Class M-1 Certificate": Any one of the Class M-1
Certificates
executed, authenticated and delivered by the Trustee,
substantially in the form
annexed hereto as Exhibit A-2 and evidencing a Regular Interest
in REMIC II for
purposes of the REMIC Provisions.
"Class M-1 Principal Distribution Amount": With respect to
any
Distribution Date, the excess of (x) the sum of (i) the
Certificate Principal
Balance of the Class A Certificates (after taking into account
the payment of
the Class A Principal Distribution Amount on such Distribution
Date) and (ii)
the Certificate Principal Balance of the Class M-1 Certificates
immediately
prior to such Distribution Date over (y) the lesser of (A) the
product of (i)
[__]% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as
of the last day of the related Due Period and (B) the aggregate
Stated Principal
Balance of the Mortgage Loans as of the last day of the related
Due Period minus
$[__].
"Class M-2 Certificate": Any one of the Class M-2
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 II for
purposes of the REMIC Provisions.
"Class M-2 Principal Distribution Amount": With respect to
any
Distribution Date, the excess of (x) the sum of (i) the
Certificate Principal
Balance of the Class A Certificates (after taking into account
the payment of
the Class A Principal Distribution Amount on such Distribution
Date), (ii) the
Certificate Principal Balance of the Class M-1 Certificates
(after taking into
account the payment of the Class M-1 Principal Distribution
Amount on such
Distribution Date) and (iii) the Certificate Principal Balance
of the Class M-2
Certificates immediately prior to such Distribution Date over
(y) the lesser of
(A) the product of (i) [__]% and (ii) the aggregate Stated
Principal Balance of
the Mortgage Loans as of the last day of the related Due Period
and (B) the
aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of
the related Due Period minus $[__].
"Class M-3 Certificate": Any one of the Class M-3
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 M-3 Interest": An uncertificated interest in the
Trust
Fund held by the Trustee on behalf of the Holders of the Class
M-3 Certificates,
evidencing a Regular Interest in REMIC II for purposes of the
REMIC Provisions.
"Class M-3 Principal Distribution Amount": With respect to
any
Distribution Date, the excess of (x) the sum of (i) the
Certificate Principal
Balance of the Class A Certificates (after taking into account
the payment of
the Class A Principal Distribution Amount on such Distribution
Date), (ii) the
Certificate Principal Balance of the Class M-1 Certificates
(after taking into
account the payment of the Class M-1 Principal Distribution
Amount on such
Distribution Date), (iii) the Certificate Principal Balance of
the Class M-2
Certificates (after taking into account the payment of the Class
M-2 Principal
Distribution Amount on such Distribution Date) and (iv) the
Certificate
Principal Balance of the Class M-3 Certificates immediately
prior to such
Distribution Date over (y) the lesser of (A) the product of (i)
[__]% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day
of the related Due Period and (B) the aggregate Stated Principal
Balance of the
Mortgage Loans as of the last day of the related Due Period
minus $[__].
"Class M-4 Certificate": Any one of the Class M-4
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 IV for
purposes of the REMIC Provisions.
"Class M-4 Interest": An uncertificated interest in the
Trust
Fund held by the Trustee on behalf of the Holders of the Class
M-4 Certificates,
evidencing a Regular Interest in REMIC II for purposes of the
REMIC Provisions.
"Class M-4 Principal Distribution Amount": With respect to
any
Distribution Date, the excess of (x) the sum of (i) the
Certificate Principal
Balance of the Class A Certificates (after taking into account
the payment of
the Class A Principal Distribution Amount on such Distribution
Date), (ii) the
Certificate Principal Balance of the Class M-1 Certificates
(after taking into
account the payment of the Class M-1 Principal Distribution
Amount on such
Distribution Date), (iii) the Certificate Principal Balance of
the Class M-2
Certificates (after taking into account the payment of the Class
M-2 Principal
Distribution Amount on such Distribution Date), (iv) the
Certificate Principal
Balance of the Class M-3 Certificates (after taking into account
the payment of
the Class M-3 Principal Distribution Amount on such Distribution
Date) and (v)
the Certificate Principal Balance of the Class M-4 Certificates
immediately
prior to such Distribution Date over (y) the lesser of (A) the
product of (i)
[__]% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as
of the last day of the related Due Period and (B) the aggregate
Stated Principal
Balance of the Mortgage Loans as of the last day of the related
Due Period minus
$[__].
"Class M-5 Certificate": Any one of the Class M-5
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 V for
purposes of the REMIC Provisions.
"Class M-5 Interest": An uncertificated interest in the
Trust
Fund held by the Trustee on behalf of the Holders of the Class
M-5 Certificates,
evidencing a Regular Interest in REMIC II for purposes of the
REMIC Provisions.
"Class M-5 Principal Distribution Amount": With respect to
any
Distribution Date, the excess of (x) the sum of (i) the
Certificate Principal
Balance of the Class A Certificates (after taking into account
the payment of
the Class A Principal Distribution Amount on such Distribution
Date), (ii) the
Certificate Principal Balance of the Class M-1 Certificates
(after taking into
account the payment of the Class M-1 Principal Distribution
Amount on such
Distribution Date), (iii) the Certificate Principal Balance of
the Class M-2
Certificates (after taking into account the payment of the Class
M-2 Principal
Distribution Amount on such Distribution Date), (iv) the
Certificate Principal
Balance of the Class M-3 Certificates (after taking into account
the payment of
the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the
Certificate Principal Balance of the Class M-4 Certificates
immediately prior to
such Distribution Date and (vi) the Certificate Principal
Balance of the Class
M-5 Certificates immediately prior to such Distribution Date
over (y) the lesser
of (A) the product of (i) [__]% and (ii) the aggregate Stated
Principal Balance
of the Mortgage Loans as of the last day of the related Due
Period and (B) the
aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of
the related Due Period minus $[__].
"Class P Certificate": Any one of the Class P 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 VII for
purposes of the REMIC Provisions.
"Class P Interest": An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the Holders of the Class P
Certificates,
evidencing a Regular Interest in REMIC II for purposes of the
REMIC Provisions.
"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-9 and evidencing the ownership of
the Class R-I
Interest and the Class R-II Interest.
"Class R-X Certificate": Any one of the Class R-X
Certificates
executed, authenticated and delivered by the Trustee,
substantially in the form
annexed hereto as Exhibit A-10 and evidencing the ownership of
the Class R-III
Interest, the Class R-IV Interest, the Class R-V Interest, the
Class R-VI
Interest and the Class R-VII Interest.
"Class R-I Interest": The uncertificated Residual Interest
in
REMIC I.
"Class R-II Interest": The uncertificated Residual Interest
in
REMIC II.
"Class R-III Interest": The uncertificated Residual Interest
in REMIC III.
"Class R-IV Interest": The uncertificated Residual Interest
in
REMIC IV.
"Class R-V Interest": The uncertificated Residual Interest
in
REMIC V.
"Class R-VI Interest": The uncertificated Residual Interest
in
REMIC VI.
"Class R-VII Interest": The uncertificated Residual Interest
in REMIC VII.
"Closing Date": [____________].
"Code": The Internal Revenue Code of 1986.
"Collection Account": The account or accounts created and
maintained, or caused to be created and maintained, by the
Servicer pursuant to
Section 3.10(a), which shall be entitled "National City Mortgage
Co., as
Servicer for [NAME OF TRUSTEE], as Trustee, in trust for the
registered holders
of [National City Mortgage Capital LLC [Mortgage] Loan Trust],
Series 20__-____,
Mortgage Backed Pass-Through Certificates." The Collection
Account must be an
Eligible Account.
"Commission": The Securities and Exchange Commission.
"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 1761 East St.
Andrew Place,
Santa Ana, CA 92705-4934, Attn: SB0301, or at such other address
as the Trustee
may designate from time to time by notice to the
Certificateholders, the
Depositor and the Servicer.
"Corresponding Certificate": With respect to (i) REMIC I
Regular Interest I-LTA, (ii) REMIC I Regular Interest I-LTM1,
(iii) REMIC I
Regular Interest I-LTM2, (iv) REMIC I Regular Interest I-LTM3
and the Class M-3
Interest, (v) REMIC I Regular Interest I-LTM4 and the Class M-4
Interest, (vi)
REMIC I Regular Interest I-LTM5 and the Class M-5 Interest,
(vii) the Class CE
Interest and (viii) REMIC I Regular Interest I-LTP and the Class
P Interest, (i)
the Class A Certificates, (ii) the Class M-1 Certificates, (iii)
the Class M-2
Certificates, (iv) the Class M-3 Certificates, (v) the Class M-4
Certificates,
(vi) the Class M-5 Certificates, (vii) the Class CE Certificates
and (viii) the
Class P Certificates, respectively.
"Credit Enhancement Percentage": For any Distribution Date,
the percentage equivalent of a fraction, the numerator of which
is the sum of
the aggregate Certificate Principal Balances of the Mezzanine
Certificates and
the Class CE Interest, and the denominator of which is the
aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of
the related Due
Period.
"Cumulative Loss Percentage": With respect to any
Distribution
Date, the percentage equivalent of a fraction, the numerator of
which is the
aggregate amount of Realized Losses incurred from the Cut-off
Date to the last
day of the preceding calendar month and the denominator of which
is the
aggregate Stated Principal Balance of the Mortgage Loans as of
the Cut-off Date.
"Cut-off Date": With respect to each Original Mortgage Loan,
____ 1, 20__. With respect to all Qualified Substitute Mortgage
Loans, their
respective dates of substitution. References herein to the
"Cut-off Date," when
used with respect to more than one Mortgage Loan, shall be to
the respective
Cut-off Dates for such Mortgage Loans.
"Debt Service Reduction": With respect to any Mortgage Loan,
a
reduction in the scheduled Monthly Payment for such Mortgage
Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy
Code, except such a
reduction resulting from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of
competent jurisdiction
in an amount less than the then outstanding Principal Balance of
the Mortgage
Loan, which valuation results from a proceeding initiated under
the Bankruptcy
Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage Loan. "Delinquency
Percentage": As
of the last day of any Due Period, the percentage equivalent of
a fraction, the
numerator of which is the aggregate Stated Principal Balance of
the Mortgage
Loans that, as of the last day of the previous calendar month,
are 60 or more
days delinquent, are in foreclosure, have been converted to REO
Properties or
have been discharged by reason of bankruptcy, and the
denominator of which is
the aggregate Stated Principal Balance of the Mortgage Loans and
REO Properties
as of the last day of such calendar month; provided, however,
that any Mortgage
Loan purchased by the Servicer pursuant to Section 3.16(c) shall
not be included
in either the numerator or the denominator for purposes of
calculating the
Delinquency Percentage.
"Depositor": National City Mortgage Capital LLC, a Delaware
limited liability company, 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 (or,
in the case of a depository institution that is the principal
subsidiary of a
holding company, such holding company has unsecured commercial
paper or other
short-term unsecured debt obligations) that are rated at least
P-1 by Moody's,
F-1 by Fitch (if rated by Fitch) and A-1 by S&P.
"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
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
Servicer on behalf of the Trustee) shall not be considered to
Directly Operate
an REO Property solely because the Trustee (or the Servicer on
behalf of the
Trustee) establishes rental terms, chooses tenants, enters into
or renews
leases, deals with taxes and insurance, or makes decisions as to
repairs or
capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of the following: (i) the
United States, any State or political subdivision thereof, any
possession of the
United States, or any agency or instrumentality of any of the
foregoing (other
than an instrumentality which is a corporation if all of its
activities are
subject to tax and, except for Freddie Mac, a majority of its
board of directors
is not selected by such governmental unit), (ii) any foreign
government, any
international organization, or any agency or instrumentality of
any of the
foregoing, (iii) any organization (other than certain farmers'
cooperatives
described in Section 521 of the Code) which is exempt from the
tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511
of the Code on
unrelated business taxable income), (iv) rural electric and
telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v)
an "electing
large partnership" and (vi) any other Person as set forth in an
Opinion of
Counsel delivered to the Trustee and the Depositor to the effect
that the
holding of an Ownership Interest in a Residual Certificate by
such Person may
cause any Trust REMIC or any Person having an Ownership Interest
in any Class of
Certificates (other than such Person) to incur a liability for
any federal tax
imposed under the Code that would not otherwise be imposed but
for the Transfer
of an Ownership Interest in a Residual Certificate to such
Person. The terms
"United States," "State" and "international organization" shall
have the
meanings set forth in Section 7701 of the Code or successor
provisions.
"Distribution Account": The trust account or accounts
created
and maintained by the Trustee pursuant to Section 3.10(b), which
shall be
entitled "[NAME OF TRUSTEE], as Trustee, in trust for the
registered holders of
[National City Mortgage Capital LLC [Mortgage] Loan Trust],
Series 20__-____,
Mortgage Backed Pass-Through Certificates." 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 [________].
"Due Date": With respect to each Mortgage Loan and any
Distribution Date, the first day of the calendar month in which
such
Distribution Date occurs on which the Monthly Payment for such
Mortgage Loan was
due (or, in the case of any Mortgage Loan under terms of which
the Monthly
Payment for such Mortgage Loan was due on a day other than the
first day of the
calendar month in which such Distribution Date occurs, the day
during the
related Due Period on which such Monthly Payment was due), in
each case
exclusive of any days of grace.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the month immediately
preceding the month
in which such Distribution Date occurs and ending on the first
day of the month
of such Distribution Date.
"Eligible Account": Any of (i) an account or accounts
maintained with a Depository Institution, (ii) an account or
accounts the
deposits in which are fully insured by the FDIC or (iii) a
segregated
non-interest bearing trust account or accounts maintained with
the corporate
trust department of a federal depository institution or
state-chartered
depository institution subject to regulations regarding
fiduciary funds on
deposit similar to Title 12 of the Code of Federal Regulation
Section 9.10(b),
which, in either case, has corporate trust powers, acting in its
fiduciary
capacity.
"[____] Mortgage Loan": Each Mortgage Loan originated by
[____].
"[____] Mortgage Loan Purchase Agreement": The agreement
among
[____], the Seller and the Depositor, regarding the sale of the
[____] Mortgage
Loans by the Seller to the Depositor, substantially in the form
of Exhibit D-2
annexed hereto.
"ERISA": The Employee Retirement Income Security Act of
1974,
as amended.
"Estate in Real Property": A fee simple estate in a parcel
of
land.
"Excess Overcollateralized Amount": With respect to the
Class
A Certificates and the Mezzanine Certificates and any
Distribution Date, the
excess, if any, of (i) the Overcollateralized Amount for such
Distribution Date
over (ii) the Overcollateralization Target Amount for such
Distribution Date.
"Expense Adjusted Mortgage Rate": With respect to any
Mortgage
Loan (or the related REO Property), as of any date of
determination, a per annum
rate of interest equal to the applicable Mortgage Rate thereon
as of the first
day of the related Due Period minus the sum of (i) the Trustee
Fee Rate and (ii)
the Servicing Fee Rate.
"Expense Adjusted Maximum 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 applicable Maximum
Mortgage Rate (or the
applicable Mortgage Rate in the case of any Fixed-Rate Mortgage
Loan) thereon as
of the first day of the related Due Period minus the sum of (i)
the Trustee Fee
Rate and (ii) the Servicing Fee Rate.
"Extraordinary Trust Fund Expense": Any amounts reimbursable
to the Trustee or any director, officer, employee or agent of
the Trustee from
the Trust Fund pursuant to Section 8.05 or Section 10.01(c) and
any amounts
payable from the Distribution Account in respect of taxes
pursuant to Section
10.01(g)(iii) and any costs of the Trustee for the recording of
the Assignments
pursuant to Section 2.01 (to the extent the related Originator
is unable to pay
such costs).
"Fannie Mae": Fannie Mae, formally 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 an Originator, the Depositor or the Servicer
pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01),
a determination
made by the Servicer that all Insurance Proceeds, Liquidation
Proceeds and other
payments or recoveries which the Servicer, in its reasonable
good faith
judgment, expects to be finally recoverable in respect thereof
have been so
recovered. The Servicer shall maintain records, prepared by a
Servicing Officer,
of each Final Recovery Determination made thereby.
"Fitch": Fitch Ratings, or its successor in interest.
"Fixed-Rate Mortgage Loan": Each of the Mortgage Loans
identified on the Mortgage Loan Schedule as having a fixed
Mortgage Rate.
"Formula Rate": For any Distribution Date and the Class A
Certificates, the Mezzanine Certificates and, solely for
purposes of calculating
the Marker Rate, REMIC I Regular Interest I-LTA, REMIC I Regular
Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC
I Regular Interest I-LTM4 and REMIC I Regular Interest I-LTM5,
the lesser of (i)
One-Month LIBOR plus the related Certificate Margin and (ii) the
Maximum Cap
Rate.
"Freddie Mac": Freddie Mac, formally known as the Federal
Home
Loan Mortgage Corporation, or any successor thereto.
"Gross Margin": With respect to each Adjustable-Rate
Mortgage
Loan, the fixed percentage set forth in the related Mortgage
Note that is added
to the Index on each Adjustment Date in accordance with the
terms of the related
Mortgage Note used to determine the Mortgage Rate for such
Adjustable-Rate
Mortgage Loan.
"Independent": When used with respect to any specified
Person,
any such Person who (a) is in fact independent of the Depositor,
the Servicer,
the Seller and their respective Affiliates, (b) does not have
any direct
financial interest in or any material indirect financial
interest in the
Depositor, the Servicer, the Seller or any Affiliate thereof,
and (c) is not
connected with the Depositor, the Servicer, the Seller 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 Servicer, the
Seller 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, the
Servicer, the
Seller or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person (other than
the Servicer) that would be an "independent contractor" with
respect to REMIC I
within the meaning of Section 856(d)(3) of the Code if REMIC I
were a real
estate investment trust (except that the ownership tests set
forth in that
section shall be considered to be met by any Person that owns,
directly or
indirectly, 35% or more of any Class of Certificates), so long
as REMIC I does
not receive or derive any income from such Person and provided
that the
relationship between such Person and REMIC I is at arm's length,
all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii)
any other Person
(including the 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.
"Index": With respect to each Adjustable-Rate Mortgage Loan
and each related Adjustment Date, the index specified in the
related Mortgage
Note.
"Insurance Proceeds": Proceeds of any title policy, hazard
policy or other insurance policy covering a Mortgage Loan, to
the extent such
proceeds are not to be applied to the restoration of the related
Mortgaged
Property or released to the Mortgagor in accordance with the
procedures that the
Servicer would follow in servicing mortgage loans held for its
own account,
subject to the terms and conditions of the related Mortgage Note
and Mortgage.
"Interest Accrual Period": With respect to any Distribution
Date and the Class A Certificates and the Mezzanine
Certificates, the period
commencing on the Distribution Date of the month immediately
preceding the month
in which such Distribution Date occurs (or, in the case of the
first
Distribution Date, commencing on the Closing Date) and ending on
the day
preceding such Distribution Date. With respect to any
Distribution Date and the
Class CE Interest and the REMIC I Regular Interests, the
one-month period ending
on the last day of the calendar month preceding the month in
which such
Distribution Date occurs.
"Interest Carry Forward Amount": With respect to any
Distribution Date and the Class A Certificates or the Mezzanine
Certificates,
the sum of (i) the amount, if any, by which (a) the Interest
Distribution Amount
for such Class of Certificates as of the immediately preceding
Distribution Date
exceeded (b) the actual amount distributed on such Class of
Certificates in
respect of interest on such immediately preceding Distribution
Date, (ii) the
amount of any Interest Carry Forward Amount for such Class of
Certificates
remaining unpaid from the previous Distribution Date and (iii)
accrued interest
on the sum of (i) and (ii) above calculated at the related
Pass-Through Rate for
the most recently ended Interest Accrual Period.
"Interest Determination Date": With respect to the Class A
Certificates, the Mezzanine Certificates, REMIC I Regular
Interest I-LTA, REMIC
I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2,
REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4 and REMIC I
Regular Interest
I-LTM5 and any Interest Accrual Period therefor, the second
London Business Day
preceding the commencement of such Interest Accrual Period.
"Interest Distribution Amount": With respect to any
Distribution Date and the Class A Certificates, the Mezzanine
Certificates and
the Class CE Certificates, the aggregate Accrued Certificate
Interest on the
Certificates of such Class for such Distribution Date.
"Interest Remittance Amount": For any Distribution Date,
that
portion of the Available Distribution Amount for the related
Distribution Date
that represents interest received or advanced on the Mortgage
Loans.
"Late Collections": With respect to any Mortgage Loan and
any
Due Period, all amounts received subsequent to the Determination
Date
immediately following such 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, Section 3.16(c)
or Section 9.01.
With respect to any REO Property, either of the following
events: (i) a Final
Recovery Determination is made as to such REO Property; or (ii)
such REO
Property is removed from REMIC I by reason of its being
purchased pursuant to
Section 9.01.
"Liquidation Proceeds": The amount (other than Insurance
Proceeds or amounts received in respect of the rental of any REO
Property prior
to REO Disposition) received by the Servicer in connection with
(i) the taking
of all or a part of a Mortgaged Property by exercise of the
power of eminent
domain or condemnation, (ii) the liquidation of a defaulted
Mortgage Loan
through a trustee's sale, foreclosure sale or otherwise, or
(iii) the
repurchase, substitution or sale of a Mortgage Loan or an REO
Property pursuant
to or as contemplated by Section 2.03, Section 3.16(c), Section
3.23 or Section
9.01.
"Loan-to-Value Ratio": As of any date of determination, the
fraction, expressed as a percentage, the numerator of which is
the principal
balance of the related Mortgage Loan at such date and the
denominator of which
is the Value of the related Mortgaged Property.
"London Business Day": Any day on which banks in the City of
London are open and conducting transactions in United States
dollars.
"Marker Rate": With respect to the Class CE Certificates and
any Distribution Date, a per annum rate equal to two (2) times
the weighted
average of the REMIC I Remittance Rate for each of the REMIC I
Regular Interests
(other than REMIC I Regular Interest I-LTP), with the rate on
each such REMIC I
Regular Interest (other than REMIC I Regular Interest I-LTZZ)
subject to a cap
equal to the related Formula Rate for the purpose of this
calculation for such
Distribution Date and with the rate on REMIC I Regular Interest
I-LTZZ subject
to a cap of zero for the purpose of this calculation; provided,
however, each
cap shall be multiplied by a fraction, the numerator of which is
the actual
number of days in the related Interest Accrual Period and the
denominator of
which is 30.
"Maximum Cap Rate": For any Distribution Date and the Class
A
Certificates and the Mezzanine Certificates, a per annum rate
equal to the
product of (x) the weighted average of the Expense Adjusted
Maximum Mortgage
Rates of the Mortgage Loans, weighted based on their Principal
Balances as of
the first day of the related Due Period and (y) a fraction, the
numerator of
which is 30 and the denominator of which is the actual number of
days elapsed in
the related Interest Accrual Period.
"Maximum I-LTZZ Uncertificated Interest Deferral Amount":
With
respect to any Distribution Date, the excess of (i) accrued
interest at the
REMIC I Remittance Rate applicable to REMIC I Regular Interest
I-LTZZ for such
Distribution Date on a balance equal to the Uncertificated
Balance of REMIC I
Regular Interest I-LTZZ minus the REMIC I Overcollateralized
Amount, in each
case for such Distribution Date, over (ii) Uncertificated
Interest on REMIC I
Regular Interest I-LTA, REMIC I Regular Interest I-LTM1, REMIC I
Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest
I-LTM4 and REMIC I Regular Interest I-LTM5 for such Distribution
Date, with the
rate on each of REMIC I Regular Interest I-LTA, REMIC I Regular
Interest I-LTM1,
REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I
Regular Interest I-LTM4 and REMIC I Regular Interest I-LTM5
subject to a cap
equal to the related Formula Rate; provided, however, each cap
shall be
multiplied by a fraction, the numerator of which is the actual
number of days in
the related Interest Accrual Period and the denominator of which
is 30.
"Maximum Mortgage Rate": With respect to each
Adjustable-Rate
Mortgage Loan, the percentage set forth in the related Mortgage
Note as the
maximum Mortgage Rate thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State
of Delaware, or
any successor thereto.
"MERS(R) System": The system of recording transfers of
Mortgages electronically maintained by MERS.
"MIN": The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R) System.
"MOM Loan": With respect to any [____] Mortgage Loan, MERS
acting as the mortgagee of such Mortgage Loan, solely as nominee
for the
originator of such Mortgage Loan and its successors and assigns,
at the
origination thereof.
"Mezzanine Certificates": The Class M-1 Certificates, the
Class M-2 Certificates, the Class M-3 Certificates or the Class
M-3 Interest, as
applicable, the Class M-4 Certificates or the Class M-4
Interest, as applicable
and the Class M-5 Certificates or the Class M-5 Interest, as
applicable.
"Minimum Mortgage Rate": With respect to each
Adjustable-Rate
Mortgage Loan, the percentage set forth in the related Mortgage
Note as the
minimum Mortgage Rate thereunder.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and interest on such
Mortgage Loan which
is payable by the related Mortgagor from time to time under the
related Mortgage
Note, determined: (a) after giving effect to (i) any Deficient
Valuation and/or
Debt Service Reduction with respect to such Mortgage Loan and
(ii) any reduction
in the amount of interest collectible from the related Mortgagor
pursuant to the
Relief Act; (b) without giving effect to any extension granted
or agreed to by
the Servicer pursuant to Section 3.07 and (c) on the assumption
that all other
amounts, if any, due under such Mortgage Loan are paid when
due.
"Moody's": Moody's Investors Service, Inc., or its successor
in interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on, or first priority security interest
in, a Mortgaged
Property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section
2.01
pertaining to a particular Mortgage Loan and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned
to the Trustee and delivered to the Trustee pursuant to Section
2.01 or Section
2.03(b) of this Agreement, as held from time to time as a part
of the Trust
Fund, the Mortgage Loans so held being identified in the
Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The [____] Mortgage Loan
Purchase Agreement or the [____] Mortgage Loan Purchase
Agreement, as the
context requires.
"Mortgage Loan Schedule": As of any date, the list of
Mortgage
Loans included in REMIC I on such date, attached hereto as
Schedule 1. The
Mortgage Loan Schedule shall set forth the following information
with respect to
each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the Originator of the Mortgage Loan;
(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 stated remaining months to maturity from the
Cut-off
Date based on the original amortization schedule;
(viii) the Loan-to-Value Ratio at origination;
(ix) the Mortgage Rate in effect immediately following the
Cut-off Date;
(x) (A) the date on which the first Monthly Payment was due
on
the Mortgage Loan and (B) if such date is not consistent with
the Due Date
currently in effect, such Due Date;
(xi) the stated maturity date;
(xii) the amount of the Monthly Payment at origination;
(xiii) the amount of the Monthly Payment due on the first
Due
Date after the Cut-off Date;
(xiv) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal Balance;
(xv) the original principal amount of the Mortgage Loan;
(xvi) the principal balance of the Mortgage Loan as of the
close of business on the Cut-off Date;
(xvii) (xvii) a code indicating the purpose of the Mortgage
Loan (i.e., purchase financing, Rate/Term Refinancing,
Cash-Out
Refinancing);
(xviii) with respect to each Adjustable-Rate Mortgage Loan,
the Adjustment Dates, the Gross Margin, the Maximum Mortgage
Rate, the
Minimum Mortgage Rate, the Periodic Rate Cap, the maximum first
Adjustment
Date Mortgage Rate adjustment and the first Adjustment Date
immediately
following the Cut-off Date;
(xix) the Mortgage Rate at origination;
(xx) a code indicating the documentation program;
(xxi) the risk grade;
(xxii) the Value of the Mortgaged Property;
(xxiii) the sale price of the Mortgaged Property, if
applicable;
(xxiv) the actual unpaid principal balance of the Mortgage
Loan as of the Cut-off Date;
(xxv) a code indicating the type and term of the related
Prepayment Charge;
(xxvi) with respect to each Adjustable-Rate Mortgage Loan,
the
rounding code (i.e., nearest 0.125%, next highest 0.125%);
(xxvii) the program code; and
(xxviii) whether such Mortgage Loan is an Adjustable-Rate
Mortgage Loan or a Fixed-Rate Mortgage Loan.
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 and (4) the weighted average maturity of the
Mortgage Loans. 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, the Cut-off Date shall refer to the
related Cut-off
Date for such Mortgage Loan, determined in accordance with the
definition of
Cut-off Date herein.
"Mortgage Note": The original executed note or other
evidence
of the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on
Schedule 1 and existing from time to time thereafter, and any
REO Properties
acquired in respect thereof.
"Mortgage Rate": With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from
time to time in
accordance with the provisions of the related Mortgage Note,
which rate (i) with
respect to each Fixed-Rate Mortgage Loan shall remain constant
at the rate set
forth in the Mortgage Loan Schedule as the Mortgage Rate in
effect immediately
following the Cut-off Date and (ii) with respect to the
Adjustable-Rate Mortgage
Loans, (A) as of any date of determination until the first
Adjustment Date
following the Cut-off Date shall be the rate set forth in the
Mortgage Loan
Schedule as the Mortgage Rate in effect immediately following
the Cut-off Date
and (B) as of any date of determination thereafter shall be the
rate as adjusted
on the most recent Adjustment Date equal to the sum, rounded as
provided in the
Mortgage Note, of the Index, as most recently available as of a
date prior to
the Adjustment Date as set forth in the related Mortgage Note,
plus the related
Gross Margin; provided that the Mortgage Rate on such
Adjustable-Rate Mortgage
Loan on any Adjustment Date shall never be more than the lesser
of (i) the sum
of the Mortgage Rate in effect immediately prior to the
Adjustment Date plus the
related Periodic Rate Cap, if any, and (ii) the related Maximum
Mortgage Rate,
and shall never be less than the greater of (i) the Mortgage
Rate in effect
immediately prior to the Adjustment Date less the Periodic Rate
Cap, if any, and
(ii) the related Minimum Mortgage Rate. 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 Monthly Excess Cashflow": With respect to any
Distribution Date, the sum of (i) any Overcollateralization
Reduction Amount for
such Distribution Date and (ii) the excess of (x) the Available
Distribution
Amount for such Distribution Date over (y) the sum for such
Distribution Date of
(A) the Senior Interest Distribution Amount payable to the
holders of the Class
A Certificates and the Interest Distribution Amount payable to
the holders of
the Mezzanine Certificates and (B) the Principal Remittance
Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or
the
related REO Property) as of any date of determination, a per
annum rate of
interest equal to the then applicable Mortgage Rate for such
Mortgage Loan minus
the Servicing Fee Rate.
"Net WAC Pass-Through Rate": With respect to the Class A
Certificates and the Mezzanine Certificates and any Distribution
Date, a rate
per annum equal to the product of (x) the weighted average of
the Expense
Adjusted Mortgage Rates of the Mortgage Loans, weighted based on
their Stated
Principal Balances as of the first day of the related Due Period
and (y) a
fraction, the numerator of which is 30 and the denominator of
which is the
actual number of days elapsed in the related Interest Accrual
Period. With
respect to each REMIC I Regular Interest and any Distribution
Date, a rate per
annum equal to the weighted average of the Expense Adjusted
Mortgage Rates of
the Mortgage Loans, weighted based on their Stated Principal
Balances as of the
first day of the related Due Period.
"Net WAC Rate Carryover Amount": With respect to any Class
of
the Class A Certificates and the Mezzanine Certificates and any
Distribution
Date, the sum of (A) the positive excess of (i) the amount of
interest accrued
on such Class of Certificates for such Distribution Date
calculated at the
related Formula Rate for such Distribution Date over (ii) the
amount of interest
accrued on such Class of Certificates at the applicable Net WAC
Pass-Through
Rate for such Distribution Date and (B) the related Net WAC Rate
Carryover
Amount for the previous Distribution Date not previously paid,
together with
interest thereon at a rate equal to the related Formula Rate for
such Class of
Certificates for such Distribution Date.
"Net WAC Rate Carryover Reserve Account": As defined in
Section 3.27.
"New Lease": Any lease of REO Property entered into on
behalf
of REMIC I, including any lease renewed or extended on behalf of
REMIC I, if
REMIC I has the right to renegotiate the terms of such
lease.
"Nonrecoverable Advance": Any 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 Servicer, will not or, in
the case of a
proposed Advance, would not be ultimately recoverable from
related Late
Collections, Insurance Proceeds or Liquidation Proceeds on such
Mortgage Loan or
REO Property as provided herein.
"Nonrecoverable Servicing Advance": Any Servicing 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
Servicer, will not or,
in the case of a proposed Servicing Advance, would not be
ultimately recoverable
from related Late Collections, Insurance Proceeds or Liquidation
Proceeds on
such Mortgage Loan or REO Property as provided herein.
"Non-United States Person": Any Person other than a United
States Person.
"Notional Amount": With respect to the Class CE Interest and
any Distribution Date, the aggregate Uncertificated Balance of
the REMIC I
Regular Interests for such Distribution Date.
"Officers' Certificate": A certificate signed by the
Chairman
of the Board, the Vice Chairman of the Board, the President or a
vice president
(however denominated), and by the Treasurer, the Secretary, or
one of the
assistant treasurers or assistant secretaries of the Servicer,
the Seller or the
Depositor, as applicable.
"One-Month LIBOR": With respect to the Class A Certificates,
the Mezzanine Certificates and for purposes of the Formula Rate,
REMIC I Regular
Interest I-LTA, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4 and
REMIC I Regular Interest I-LTM5 and any Interest Accrual Period
therefor, the
rate determined by the Trustee on the related Interest
Determination Date on the
basis of the offered rate for one-month U.S. dollar deposits, as
such rate
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on
such Interest
Determination Date; provided that if such rate does not appear
on Telerate Page
3750, the rate for such date will be determined on the basis of
the offered
rates of the Reference Banks for one-month U.S. dollar deposits,
as of 11:00
a.m. (London time) on such Interest Determination Date. In such
event, the
Trustee will request the principal London office of each of the
Reference Banks
to provide a quotation of its rate. If on such Interest
Determination Date, two
or more Reference Banks provide such offered quotations,
One-Month LIBOR for the
related Interest Accrual Period shall be the arithmetic mean of
such offered
quotations (rounded upwards if necessary to the nearest whole
multiple of
1/16%). If on such Interest Determination Date, fewer than two
Reference Banks
provide such offered quotations, One-Month LIBOR for the related
Interest
Accrual Period shall be the higher of (i) LIBOR as determined on
the previous
Interest Determination Date and (ii) the Reserve Interest Rate.
Notwithstanding
the foregoing, if, under the priorities described above, LIBOR
for an Interest
Determination Date would be based on LIBOR for the previous
Interest
Determination Date for the third consecutive Interest
Determination Date, the
Trustee, after consultation with the Depositor, shall select an
alternative
comparable index (over which the Trustee has no control), used
for determining
one-month Eurodollar lending rates that is calculated and
published (or
otherwise made available) by an independent party.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor or the
Servicer,
acceptable to the Trustee, if such opinion is delivered 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 Mortgage Loan": Any of the Mortgage Loans included
in REMIC I as of the Closing Date.
"Originator": Either (i) [____] or its successor in
interest,
in its capacity as originator under the [____] Mortgage Loan
Purchase Agreement
or (ii) [____] or its successor in interest, in its capacity as
originator under
the [____] Mortgage Loan Purchase Agreement, as the context
requires.
"Overcollateralization Deficiency Amount": With respect to
any
Distribution Date, the excess, if any, of (a) the
Overcollateralization Target
Amount applicable to such Distribution Date over (b) the
Overcollateralized
Amount applicable to such Distribution Date (calculated for this
purpose only,
after taking into account the distributions to be made of the
Principal
Remittance Amount on such Distribution Date).
"Overcollateralization Increase Amount": With respect to any
Distribution Date, the lesser of (a) the Overcollateralization
Deficiency Amount
as of such Distribution Date (after taking into account the
payment of the
Principal Distribution Amount on such Distribution Date,
exclusive of the
payment of any Overcollateralization Increase Amount) and (b)
the amount of
Accrued Certificate Interest payable on the Class CE
Certificates on such
Distribution Date as reduced by Realized Losses allocated
thereto with respect
to such Distribution Date pursuant to Section 4.04.
"Overcollateralization Reduction Amount": With respect to
any
Distribution Date, an amount equal to the lesser of (a) the
Principal Remittance
Amount on such Distribution Date and (b) the excess, if any, of
(i) the
Overcollateralized Amount for such Distribution Date (calculated
for this
purpose only after assuming that 100% of the Principal
Remittance Amount on such
Distribution Date have been distributed) over (ii) the
Overcollateralization
Target Amount for such Distribution Date.
"Overcollateralization Target Amount": With respect to any
Distribution Date, (i) prior to the Stepdown Date, an amount
equal to $[__],
(ii) on or after the Stepdown Date provided a Trigger Event is
not in effect,
the greater of (x) [__]% of the then current aggregate
outstanding principal
balance of the Mortgage Loans as of the last day of the related
Due Period and
(y) $[__], or (iii) on or after the Stepdown Date and if a
Trigger Event is in
effect, the Overcollateralization Target Amount for the
immediately preceding
Distribution Date.
"Overcollateralized Amount": With respect to any
Distribution
Date, the excess, if any, of (a) the aggregate Stated Principal
Balances of the
Mortgage Loans and REO Properties as of the last day of the
related Due Period
over (b) the sum of the aggregate Certificate Principal Balances
of the Class A
Certificates, the Mezzanine Certificates and the Class P
Certificates after
giving effect to distributions to be made on such Distribution
Date.
"Ownership Interest": As to any Certificate, any ownership
or
security interest in such Certificate, including any interest in
such
Certificate as the Holder thereof and any other interest
therein, whether direct
or indirect, legal or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to the Class A
Certificates
and the Mezzanine Certificates and any Distribution Date, a rate
per annum equal
to the lesser of (i) the related Formula Rate for such
Distribution Date and
(ii) the Net WAC Pass-Through Rate for such Distribution Date.
With respect to
the Class CE Interest and any Distribution Date, a rate per
annum equal to the
percentage equivalent of a fraction, the numerator of which is
the sum of the
amounts calculated pursuant to clauses (A) through (I) below,
and the
denominator of which is the Uncertificated Balance of the REMIC
I Regular
Interests. For purposes of calculating the Pass-Through Rate for
the Class CE
Interest, the numerator is equal to the sum of the following
components:
(A) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTAA minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTAA;
(B) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTA minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTA;
(C) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM1 minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTM1;
(D) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM2 minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTM2;
(E) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM3 minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTM3;
(F) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM4 minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTM4;
(G) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTM5 minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTM5;
(H) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTZZ minus the Marker Rate, applied to an amount equal to
the
Uncertificated Balance of REMIC I Regular Interest I-LTZZ;
and
(I) 100% of the interest on REMIC I Regular Interest I-LTP.
With respect to the Class CE Certificates, 100% of the
interest payable to the Class CE Interest.
"Percentage Interest": With respect to any Class of
Certificates (other than the Residual Certificates), the
undivided percentage
ownership in such 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 aggregate initial Certificate Principal Balance or
initial Notional
Amount of all of the Certificates of such Class. The Class A
Certificates and
the Mezzanine Certificates are issuable only in minimum
Percentage Interests
corresponding to minimum initial Certificate Principal Balances
of $100,000 and
integral multiples of $1.00 in thereof. The Class P Certificates
are issuable
only in Percentage Interests corresponding to initial
Certificate Principal
Balances of $20 and integral multiples thereof. The Class CE
Certificates are
issuable only in minimum Percentage Interests corresponding to
minimum initial
Certificate Principal Balances of $100,000 and integral
multiples of $1.00 in
thereof; provided, however, that a single Certificate of each
such Class of
Certificates may be issued having a Percentage Interest
corresponding to the
remainder of the aggregate initial Certificate Principal Balance
or Notional
Amount of such Class or to an otherwise authorized denomination
for such Class
plus such remainder. With respect to any Residual Certificate,
the undivided
percentage ownership in such Class evidenced by such
Certificate, as set forth
on the face of such Certificate. The Residual Certificates are
issuable in
Percentage Interests of 20% and multiples thereof.
"Periodic Rate Cap": With respect to each Adjustable-Rate
Mortgage Loan and any Adjustment Date therefor, the fixed
percentage set forth
in the related Mortgage Note, which is the maximum amount by
which the Mortgage
Rate for such Mortgage Loan may increase or decrease (without
regard to the
Maximum Mortgage Rate or the Minimum Mortgage Rate) on such
Adjustment Date from
the Mortgage Rate in effect immediately prior to such Adjustment
Date.
"Permitted Investments": Any one or more of the following
obligations or securities acquired at a purchase price of not
greater than par,
regardless of whether issued by the Depositor, the 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 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 that rates such securities in its highest long-term
unsecured rating
categories 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 that rates such
securities in
its highest short-term unsecured debt rating available at the
time of such
investment;
(vi) units of money market funds that have been rated "AAA"
by
Fitch (if rated by Fitch) and "AAAm" or "AAAm-G" by S&P or
"Aaa" by
Moody's; 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 the Rating
Agencies as a
permitted investment of funds backing securities having ratings
equivalent
to its highest initial rating of the Class A Certificates;
provided, however, that no instrument described hereunder shall
evidence either
the right to receive (a) only interest with respect to the
obligations
underlying such instrument or (b) both principal and interest
payments derived
from obligations underlying such instrument and the interest and
principal
payments with respect to such instrument provide a yield to
maturity at par
greater than 120% of the yield to maturity at par of the
underlying obligations.
"Permitted Transferee": Any Transferee of a Residual
Certificate other than a Disqualified Organization or Non-United
States Person.
"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.
"Plan": Any employee benefit plan or certain other
retirement
plans and arrangements, including individual retirement accounts
and annuities,
Keogh plans and bank collective investment funds and insurance
company general
or separate accounts in which such plans, accounts or
arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
"Prepayment Assumption": A prepayment rate for the Mortgage
Loans of [__]% CPR. The Prepayment Assumption is used solely for
determining the
accrual of original issue discount on the Certificates for
federal income tax
purposes. A CPR (or Constant Prepayment Rate) represents an
annualized constant
assumed rate of prepayment each month of a pool of mortgage
loans relative to
its outstanding principal balance for the life of such pool.
"Prepayment Charge": With respect to any Prepayment Period,
any prepayment premium, penalty or charge payable by a Mortgagor
in connection
with any Principal Prepayment on a Mortgage Loan pursuant to the
terms of the
related Mortgage Note (other than any Servicer Prepayment Charge
Payment
Amount).
"Prepayment Charge Schedule": As of any date, the list of
Prepayment Charges included in the Trust Fund on such date,
attached hereto as
Schedule 2 (including the prepayment charge summary attached
thereto). The
Prepayment Charge Schedule shall set forth the following
information with
respect to each Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the date on which the first Monthly Payment was due on
the related Mortgage Loan;
(iv) the term of the related Prepayment Charge;
(v) the original Stated Principal Balance of the related
Mortgage Loan; and
(vi) the Stated Principal Balance of the related Mortgage
Loan
as of the Cut-off Date.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, for each Mortgage Loan that was during the
related Prepayment
Period the subject of a Principal Prepayment in full that was
applied by the
Servicer to reduce the outstanding principal balance of such
loan on a date
preceding the Due Date in the succeeding Prepayment Period, an
amount equal to
interest at the applicable Net Mortgage Rate on the amount of
such Principal
Prepayment for the number of days commencing on the date on
which the prepayment
is applied and ending on the last day of the related Prepayment
Period. The
obligations of the Servicer in respect of any Prepayment
Interest Shortfall are
set forth in Section 3.24.
"Prepayment Period": With respect to any Distribution Date,
the calendar month preceding the calendar month in which such
Distribution Date
occurs.
"Principal Balance": As to any Mortgage Loan other than a
Liquidated Mortgage Loan, and any day, the related Stated
Principal Balance as
of the Cut-off Date, MINUS all collections credited against the
Principal
Balance of any such Mortgage Loan. For purposes of this
definition, a Liquidated
Mortgage Loan shall be deemed to have a Principal Balance equal
to the Principal
Balance of the related Mortgage Loan as of the final recovery of
related
Liquidation Proceeds and a Principal Balance of zero thereafter.
As to any REO
Property and any day, the Principal Balance of the related
Mortgage Loan
immediately prior to such Mortgage Loan becoming REO Property
minus any REO
Principal Amortization received with respect thereto on or prior
to such day.
"Principal Distribution Amount": With respect to any
Distribution Date, the sum of:
(i) the principal portion of each Monthly Payment on the
Mortgage Loans due during the related Due Period, whether or not
received
on or prior to the related Determination Date;
(ii) the Stated Principal Balance of any Mortgage Loan that
was purchased during the related Prepayment Period pursuant to
or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01
and the
amount of any shortfall deposited in the Collection Account in
connection
with the substitution of a Deleted Mortgage Loan pursuant to
Section 2.03
during the related Prepayment Period;
(iii) the principal portion of all other unscheduled
collections (including, without limitation, Principal
Prepayments,
Insurance Proceeds, Liquidation Proceeds and REO Principal
Amortization)
received during the related Prepayment Period, net of any
portion thereof
that represents a recovery of principal for which an Advance was
made by
the Servicer pursuant to Section 4.03 in respect of a
preceding
Distribution Date; and
(iv) the amount of any Overcollateralization Increase Amount
for such Distribution Date; MINUS
(v) the amount of any Overcollateralization Reduction Amount
for such Distribution Date.
"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.
"Principal Remittance Amount": The sum of the amounts set
forth in (i) through (iii) of the definition of Principal
Distribution Amount.
"Private Certificates": As defined in Section 5.02(b).
"PTCE": A Prohibited Transaction Class Exemption issued by
the
United States Department of Labor which provides that exemptive
relief is
available to any party to any transaction which satisfies the
conditions of the
exemption.
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as contemplated by
Section 2.03, Section
3.16(c) or Section 9.01, and as confirmed by a certification
from a Servicing
Officer 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 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 plus 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 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, net
of the total of all net rental income, Insurance Proceeds,
Liquidation Proceeds
and 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 Advances (including Nonrecoverable Advances and
Nonrecoverable
Servicing 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 Section
3.11(a)(ix) and Section 3.16(b), and (v) in the case of a
Mortgage Loan required
to be purchased pursuant to Section 2.03, expenses reasonably
incurred or to be
incurred by the Servicer or the Trustee in respect of the breach
or defect
giving rise to the purchase obligation including, except for any
Mortgage Loan
repurchased pursuant to Section 3.16(c), any costs and damages
incurred by the
Trust Fund in connection with any violation by such loan of any
predatory or
abusive lending law.
"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 Stated
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) with respect to any
Adjustable-Rate
Mortgage Loan, have a Maximum Mortgage Rate not less than the
Maximum Mortgage
Rate on the Deleted Mortgage Loan, (iv) with respect to any
Adjustable-Rate
Mortgage Loan, have a Minimum Mortgage Rate not less than the
Minimum Mortgage
Rate of the Deleted Mortgage Loan, (v) with respect to any
Adjustable-Rate
Mortgage Loan, have a Gross Margin equal to the Gross Margin of
the Deleted
Mortgage Loan, (vi) with respect to any Adjustable-Rate Mortgage
Loan, have a
next Adjustment Date not more than two months later than the
next Adjustment
Date on the Deleted Mortgage Loan, (vii) have a remaining term
to maturity not
greater than (and not more than one year less than) that of the
Deleted Mortgage
Loan, (viii) have the same Due Date as the Due Date on the
Deleted Mortgage
Loan, (ix) 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,
(x) have a risk grading determined by the originator of the
Mortgage Loan at
least equal to the risk grading assigned on the Deleted Mortgage
Loan and (xi)
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 (vii) hereof shall be
determined on the
basis of weighted average remaining term to maturity, the
Loan-to-Value Ratios
described in clause (ix) hereof shall be satisfied as to each
such mortgage
loan, the risk gradings described in clause (x) hereof shall be
satisfied as to
each such mortgage loan and, except to the extent otherwise
provided in this
sentence, the representations and warranties described in clause
(xi) 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 a nominal amount 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
nominal amount) 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 or Rating Agencies": Fitch, Moody's and S&P
or
their successors. If such agencies or their successors are no
longer in
existence, "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
the Servicer.
"Realized Loss": With respect to each Mortgage Loan as to
which a Final Recovery Determination has been made, an amount
(not less than
zero) equal to (i) the unpaid principal balance of such Mortgage
Loan as of the
commencement of the calendar month in which the Final Recovery
Determination was
made, plus (ii) accrued interest from the Due Date as to which
interest was last
paid by the Mortgagor through the end of the calendar month in
which such Final
Recovery Determination was made, calculated in the case of each
calendar month
during such period (A) at an annual rate equal to the annual
rate at which
interest was then accruing on such Mortgage Loan and (B) on a
principal amount
equal to the Stated Principal Balance of such Mortgage Loan as
of the close of
business on the Distribution Date during such calendar month,
plus (iii) any
amounts previously withdrawn from the Collection Account in
respect of such
Mortgage Loan pursuant to Section 3.11(a)(ix) and Section
3.16(b), minus (iv)
the proceeds, if any, received in respect of such Mortgage Loan
during the
calendar month in which such Final Recovery Determination was
made, net of
amounts that are payable therefrom to the Servicer with respect
to such Mortgage
Loan pursuant to Section 3.11(a)(iii).
With respect to any REO Property as to which a Final
Recovery
Determination has been made, an amount (not less than zero)
equal to (i) the
unpaid principal balance of the related Mortgage Loan as of the
date of
acquisition of such REO Property on behalf of 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 end of the
calendar month
immediately preceding the calendar month in which such REO
Property was
acquired, calculated in the case of each calendar month during
such period (A)
at an annual rate equal to the annual rate at which interest was
then accruing
on the related Mortgage Loan and (B) on a principal amount equal
to the Stated
Principal Balance of the related Mortgage Loan as of the close
of business on
the Distribution Date during such calendar month, plus (iii) REO
Imputed
Interest for such REO Property for each calendar month
commencing with the
calendar month in which such REO Property was acquired and
ending with the
calendar month in which such Final Recovery Determination was
made, plus (iv)
any amounts previously withdrawn from the Collection Account in
respect of the
related Mortgage Loan pursuant to Section 3.11(a)(ix) and
Section 3.16(b), minus
(v) the aggregate of all Advances and Servicing Advances (in the
case of
Servicing Advances, without duplication of amounts netted out of
the rental
income, Insurance Proceeds and Liquidation Proceeds described in
clause (vi)
below) made by the Servicer in respect of such REO Property or
the related
Mortgage Loan for which the Servicer has been or, in connection
with such Final
Recovery Determination, will be reimbursed pursuant to Section
3.23 out of
rental income, Insurance Proceeds and Liquidation Proceeds
received in respect
of such REO Property, minus (vi) the total of all net rental
income, Insurance
Proceeds and Liquidation Proceeds received in respect of such
REO Property that
has been, or in connection with such Final Recovery
Determination, will be
transferred to the Distribution Account pursuant to Section
3.23.
With respect to each Mortgage Loan which has become the
subject of a Deficient Valuation, the difference between the
principal balance
of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation
and the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation.
With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction, the portion, if any, of the
reduction in
each affected Monthly Payment attributable to a reduction in the
Mortgage Rate
imposed by a court of competent jurisdiction. Each such Realized
Loss shall be
deemed to have been incurred on the Due Date for each affected
Monthly Payment.
"Record Date": With respect to each Distribution Date and
any
Book-Entry Certificate, the Business Day immediately preceding
such Distribution
Date. With respect to each Distribution Date and any other
Certificates,
including any Definitive Certificates, the last Business Day of
the month
immediately preceding the month in which such Distribution Date
occurs.
"Reference Banks": Deutsche Bank AG, Barclays' Bank PLC, The
Tokyo Mitsubishi Bank and National Westminster Bank PLC and
their successors in
interest; provided, however, that if any of the foregoing banks
are not suitable
to serve as a Reference Bank, then any leading banks selected by
the Trustee,
after consultation with the Depositor, which are engaged in
transactions in
Eurodollar deposits in the international Eurocurrency market (i)
with an
established place of business in London and (ii) not
controlling, under the
control of or under common control with the Depositor or any
Affiliate thereof.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged
Property.
"Regular Certificate": Any Class A Certificate, Mezzanine
Certificate, Class CE Certificate or Class P Certificate.
"Regular Interest": A "regular interest" in a REMIC within
the
meaning of Section 860G(a)(1) of the Code.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
"Relief Act Interest Shortfall": With respect to any
Distribution Date and any Mortgage Loan, any reduction in the
amount of interest
collectible on such Mortgage Loan for the most recently ended
calendar month as
a result of the application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting one of the primary trusts created hereby and to be
administered
hereunder, with respect to which a REMIC election is to be made,
consisting of:
(i) such Mortgage Loans and Prepayment Charges related thereto
as from time to
time are subject to this Agreement, together with the Mortgage
Files relating
thereto, and together with all collections thereon and proceeds
thereof; (ii)
any REO Property, together with all collections thereon and
proceeds thereof;
(iii) the Trustee's rights with respect to the Mortgage Loans
under all
insurance policies required to be maintained pursuant to this
Agreement and any
proceeds thereof; (iv) the Depositor's rights under each
Mortgage Loan Purchase
Agreement (including any security interest created thereby); (v)
the Collection
Account (other than any amounts representing any Servicer
Prepayment Charge
Payment Amount), the Distribution Account (other than any
amounts representing
any Servicer Prepayment Charge Payment Amount) and any REO
Account, and such
assets that are deposited therein from time to time and any
investments thereof,
together with any and all income, proceeds and payments with
respect thereto.
Notwithstanding the foregoing, however, REMIC I specifically
excludes all
payments and other collections of principal and interest due on
the Mortgage
Loans on or before the Cut-off Date, all Prepayment Charges
payable in
connection with Principal Prepayments on the Mortgage Loans made
before the
Cut-off Date and the Net WAC Rate Carryover Reserve Account.
"REMIC I Interest Loss Allocation Amount": With respect to
any
Distribution Date, an amount (subject to adjustment based on the
actual number
of days elapsed in the respective Interest Accrual Periods for
the indicated
Regular Interests for such Distribution Date) equal to (a) the
product of (i)
the aggregate Stated Principal Balance of the Mortgage Loans and
REO Properties
then outstanding and (ii) the REMIC I Remittance Rate for REMIC
I Regular
Interest I-LTAA minus the Marker Rate, divided by (b) 12.
"REMIC I Overcollateralized Amount": With respect to any
date
of determination, (i) 1% of the aggregate Uncertificated
Balances of the REMIC I
Regular Interests minus (ii) the aggregate of the Uncertificated
Balances of
REMIC I Regular Interest I-LTA, REMIC I Regular Interest I-LTM1,
REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5 and REMIC I Regular
Interest I-LTP, in
each case as of such date of determination.
"REMIC I Principal Loss Allocation Amount": With respect to
any Distribution Date, an amount equal to the product of (i) the
aggregate
Stated Principal Balance of the Mortgage Loans and REO
Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which
is two times the
aggregate of the Uncertificated Balances of REMIC I Regular
Interest I-LTA,
REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I
Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4 and
REMIC I Regular
Interest I-LTM5 and the denominator of which is the aggregate of
the
Uncertificated Balances of REMIC I Regular Interest I-LTA, REMIC
I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I
Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5 and
REMIC I Regular Interest I-LTZZ.
"REMIC I Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a "regular interest" in REMIC I. Each REMIC I
Regular Interest
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time or shall otherwise be entitled to interest as set forth
herein, and
shall be entitled to distributions of principal, subject to the
terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated
Balance as set forth in the Preliminary Statement hereto. The
designations for
the respective REMIC I Regular Interests are set forth in the
Preliminary
Statement hereto.
"REMIC I Regular Interest I-LTAA": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTAA
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Regular Interest I-LTA": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTA
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Regular Interest I-LTM1": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTM1
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Regular Interest I-LTM2": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTM2
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Regular Interest I-LTM3": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTM3
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Regular Interest I-LTM4": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTM4
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Regular Interest I-LTM5": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTM5
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Regular Interest I-LTP": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTP
shall be entitled to any Prepayment Charges collected by the
Servicer and to a
distribution of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Balance as
set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LTZZ": One of the separate
non-certificated beneficial ownership interests in REMIC I
issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular
Interest I-LTZZ
shall accrue interest at the related REMIC I Remittance Rate in
effect from time
to time, and shall be entitled to distributions of principal,
subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto.
"REMIC I Remittance Rate": With respect to each REMIC I
Regular Interest and any Distribution Date, the Net WAC
Pass-Through Rate.
"REMIC I Required Overcollateralized Amount": 1% of the
Overcollateralization Target Amount.
"REMIC II": The segregated pool of assets consisting of all
of
the REMIC I Regular Interests conveyed in trust to the Trustee,
for the benefit
of the Class A Certificates, the Class M-1 Certificates, the
Class M-2
Certificates, the Class M-3 Interest, the Class M-4 Interest,
the Class M-5
Interest, the Class CE Interest, the Class P Interest and the
Class R-II
Interest and all amounts deposited therein, with respect to
which a separate
REMIC election is to be made.
"REMIC III": The segregated pool of assets consisting of the
Class M-3 Interest conveyed in trust to the Trustee, for the
benefit of the
Class M-3 Certificates and the Class R-III Interest and all
amounts deposited
therein, with respect to which a separate REMIC election is to
be made.
"REMIC IV": The segregated pool of assets consisting of the
Class M-4 Interest conveyed in trust to the Trustee, for the
benefit of the
Class M-4 Certificates and the Class R-IV Interest and all
amounts deposited
therein, with respect to which a separate REMIC election is to
be made.
"REMIC V": The segregated pool of assets consisting of the
Class M-5 Interest conveyed in trust to the Trustee, for the
benefit of the
Class M-5 Certificates and the Class R-V Interest and all
amounts deposited
therein, with respect to which a separate REMIC election is to
be made.
"REMIC VI": The segregated pool of assets consisting of the
Class CE Interest conveyed in trust to the Trustee, for the
benefit of the Class
CE Certificates and the Class R-VI Interest and all amounts
deposited therein,
with respect to which a separate REMIC election is to be
made.
"REMIC VII": The segregated pool of assets consisting of the
Class P Interest conveyed in trust to the Trustee, for the
benefit of the Class
P Certificates and the Class R-VII Interest and all amounts
deposited therein,
with respect to which a separate REMIC election is to be
made.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which
appear at Section
860A through 860G of the Code, and related provisions, and
proposed, temporary
and final regulations and published rulings, notices and
announcements
promulgated thereunder, as the foregoing may be in effect from
time to time.
"Remittance Report": A report in form and substance
acceptable
to the Trustee on an electronic data file or tape prepared by
the Servicer
pursuant to Section 4.03 with such additions, deletions and
modifications as
agreed to by the Trustee and the 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, or caused
to be maintained, by the 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 Servicer pursuant to Section 3.23(d) for
unpaid Servicing
Fees in respect of the related Mortgage Loan and unreimbursed
Servicing Advances
and 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
Servicer
on behalf of REMIC I through foreclosure or deed-in-lieu of
foreclosure, as
described in Section 3.23.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibit E attached hereto.
"Reserve Interest Rate": With respect to any Interest
Determination Date, the rate per annum that the Trustee
determines to be either
(i) the arithmetic mean (rounded upwards if necessary to the
nearest whole
multiple of 1/16%) of the one-month U. S. dollar lending rates
which New York
City banks selected by the Trustee, after consultation with the
Depositor, are
quoting on the relevant Interest Determination Date to the
principal London
offices of leading banks in the London interbank market or (ii)
in the event
that the Trustee can determine no such arithmetic mean, the
lowest one-month U.
S. dollar lending rate which New York City banks selected by the
Trustee, after
consultation with the Depositor, are quoting on such Interest
Determination Date
to leading European banks.
"Residential Dwelling": Any one of the following: (i) an
attached, detached or semi-detached one-family dwelling, (ii) an
attached,
detached or semi-detached two-to four-family dwelling, (iii) a
one-family
dwelling unit in a Fannie Mae eligible condominium project, or
(iv) an attached,
detached or semi-detached one-family dwelling in a planned unit
development,
none of which is a co-operative, mobile or manufactured home (as
defined in 42
United States Code, Section 5402(6)).
"Residual Certificates": The Class R Certificates and the
Class R-X 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,
any vice president, managing director, director, any assistant
vice president,
the Secretary, any assistant secretary, the Treasurer, any
assistant treasurer,
any associate, any trust officer or assistant trust officer or
any other officer
of the Trustee having direct responsibility over this Agreement
or otherwise
engaged in 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.
"S&P": Standard & Poor's Ratings Services, a division of
the
McGraw-Hill Companies, Inc., or its successor in interest.
"Seller": National City Mortgage Co. or its successor in
interest, in its capacity as seller under each Mortgage Loan
Purchase Agreement.
"Senior Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) the
Interest Distribution
Amount for such Distribution Date for the Class A Certificates
and (ii) the
Interest Carry Forward Amount, if any, for such Distribution
Date for the Class
A Certificates.
"Servicer": National City Mortgage Co. or any successor
servicer appointed as herein provided, in its capacity as
Servicer hereunder.
"Servicer's Assignee": As defined in Section 3.28 hereof.
"Servicer Event of Default": One or more of the events
described in Section 7.01.
"Servicer Prepayment Charge Payment Amount": The amounts
payable by the Servicer in respect of any waived Prepayment
Charges pursuant to
Section 3.01.
"Servicer Remittance Date": With respect to any Distribution
Date, by 3:00 p.m. New York time on the Business Day preceding
the related
Distribution Date.
"Servicer Termination Trigger": With respect to any
Distribution Date, the Realized Losses incurred since the
Cut-off Date through
the last day of the related Due Period exceeds the applicable
percentages set
forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
"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 Servicer in connection with a default,
delinquency or
other unanticipated event by the 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 but not limited to 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 3.14,
Section 3.16 and
Section 3.23. The Servicer shall not be required to make any
Nonrecoverable
Servicing Advances.
"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, an amount equal to the Servicing Fee Rate
accrued for one
month (or in the event of any payment of interest which
accompanies a Principal
Prepayment in full or in part made by the Mortgagor during such
calendar month,
interest for the number of days covered by such payment of
interest) on the same
principal amount on which interest on such Mortgage Loan accrues
for such
calendar month, calculated on the basis of a 360-day year
consisting of twelve
30-day months. A portion of such Servicing Fee may be retained
by any
Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": [__]% per annum.
"Servicing Officer": Any officer of the Servicer involved
in,
or responsible for, the administration and servicing of Mortgage
Loans, whose
name and specimen signature appear on a list of Servicing
Officers furnished by
the Servicer to the Trustee and the Depositor on the Closing
Date, as such list
may from time to time be amended.
"Servicing Rights Pledgee": One or more lenders, selected by
the Servicer, to which the Servicer will pledge and assign all
of its right,
title and interest in, to and under this Agreement, including
Wachovia Bank,
National Association, as the representative of certain
lenders.
"Servicing Transfer Costs": Shall mean all reasonable costs
and expenses incurred by the Trustee in connection with the
transfer of
servicing from a predecessor servicer, including, without
limitation, any
reasonable 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 (or any
successor
servicer appointed pursuant to Section 7.02) to service the
Mortgage Loans
properly and effectively.
"Single Certificate": With respect to any Class of
Certificates (other than the Class P Certificates and the
Residual
Certificates), a hypothetical Certificate of such Class
evidencing a Percentage
Interest for such Class corresponding to an initial Certificate
Principal
Balance of $1,000. With respect to the Class P Certificates and
the Residual
Certificates, a hypothetical Certificate of such Class
evidencing a 100%
Percentage Interest in such Class.
"Startup Day": With respect to each Trust REMIC, the day
designated as such pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage
Loan:
(a) as of any date of determination up to but not including the
Distribution
Date on which the proceeds, if any, of a Liquidation Event with
respect to such
Mortgage Loan would be distributed, the 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
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
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 REMIC I, 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
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.
"Stepdown Date": The earlier to occur of (i) the
Distribution
Date on which the Certificate Principal Balance of the Class A
Certificates has
been reduced to zero and (ii) the later to occur of (a) the
Distribution Date
occurring in [__] and (b) the first Distribution Date on which
the Credit
Enhancement Percentage (calculated for this purpose only prior
to any
distribution of the Principal Distribution Amount to the
Certificates then
entitled to distributions of principal on such Distribution
Date) is equal to or
greater than [__]%.
"Sub-Servicer": Any Person with which the Servicer has
entered
into a Sub-Servicing Agreement and which meets the
qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicing Agreement": The written contract between the
Servicer and a Sub-Servicer relating to servicing and
administration of certain
Mortgage Loans as provided in Section 3.02.
"Substitution Shortfall Amount": As defined in Section
2.03(b).
"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 the Trust Fund due to the
classification of portions
thereof as REMICs under the REMIC Provisions, together with any
and all other
information reports or returns that may be required to be
furnished to the
Certificateholders or filed with the Internal Revenue Service or
any other
governmental taxing authority under any applicable provisions of
federal, state
or local tax laws.
"Telerate Page 3750": The display designated as page "3750"
on
the Dow Jones Telerate Capital Markets Report (or such other
page as may replace
page 3750 on that report for the purpose of displaying London
interbank offered
rates of major banks).
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trigger Event": A Trigger Event is in effect on any
Distribution Date following the Stepdown Date if:
(a) the Delinquency Percentage exceeds [__]% of the then
current Credit Enhancement Percentage; or
(b) the aggregate amount of Realized Losses incurred since
the
Cut-off Date through the last day of the related Due Period
divided by aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date
exceeds the
applicable percentages set forth below with respect to such
Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
"Trust Fund": Collectively, all of the assets of REMIC I,
REMIC II, REMIC III, REMIC IV, REMIC V, REMIC VI, REMIC VII, the
Net WAC Rate
Carryover Reserve Account and the other assets conveyed by the
Depositor to the
Trustee pursuant to Section 2.01.
"Trust REMIC": Any of REMIC I, REMIC II, REMIC III, REMIC
IV,
REMIC V, REMIC VI or REMIC VII.
"Trustee": [NAME OF TRUSTEE], a national banking
association,
or its successor in interest, or any successor trustee appointed
as herein
provided.
"Trustee Fee": The amount payable to the Trustee on each
Distribution Date pursuant to Section 8.05 as compensation for
all services
rendered by it in the execution of the trust hereby created and
in the exercise
and performance of any of the powers and duties of the Trustee
hereunder, which
amount shall equal the Trustee Fee Rate accrued for one month on
the aggregate
Scheduled Principal Balance of the Mortgage Loans and any REO
Properties as of
the first day of the related Due Period (or, in the case of the
initial
Distribution Date, as of the Cut-off Date), calculated on the
basis of a 360-day
year consisting of twelve 30-day months.
"Trustee Fee Rate": [__]% per annum.
"Uncertificated Balance": The amount of any REMIC I Regular
Interest outstanding as of any date of determination. As of the
Closing Date,
the Uncertificated Balance of each REMIC I Regular Interest
shall equal the
amount set forth in the Preliminary Statement hereto as its
initial
uncertificated balance. On each Distribution Date, the
Uncertificated Balance of
each REMIC I Regular Interest shall be reduced by all
distributions of principal
made on such REMIC I Regular Interest, as applicable, on such
Distribution Date
pursuant to Section 4.01 and, if and to the extent necessary and
appropriate,
shall be further reduced on such Distribution Date by Realized
Losses as
provided in Section 4.04. The Uncertificated Balances of REMIC I
Regular
Interest I-LTZZ shall be increased by interest deferrals as
provided in Section
4.01(a)(1)(A)(i). The Uncertificated Balance of each REMIC I
Regular Interest
shall never be less than zero.
"Uncertificated Interest": With respect to any REMIC I
Regular
Interest for any Distribution Date, one month's interest at the
REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for
such
Distribution Date, accrued on the Uncertificated Balance thereof
immediately
prior to such Distribution Date. Uncertificated Interest in
respect of any REMIC
I Regular Interest shall accrue on the basis of a 360-day year
consisting of
twelve 30-day months. Uncertificated Interest with respect to
each Distribution
Date, as to any REMIC I Regular Interest, shall be reduced by an
amount equal to
the sum of (a) the aggregate Prepayment Interest Shortfall, if
any, for such
Distribution Date to the extent not covered by payments pursuant
to Section 3.24
and (b) the aggregate amount of any Relief Act Interest
Shortfall, if any
allocated, in each case, to such REMIC I Regular Interest
pursuant to Section
1.02. In addition, Uncertificated Interest with respect to each
Distribution
Date, as to any REMIC I Regular Interest shall be reduced by
Realized Losses, if
any, allocated to such REMIC I Regular Interest pursuant to
Section 1.02 and
Section 4.04.
"Underwriters' Exemption": An individual exemption issued by
the United States Department of Labor, Prohibited Transaction
Exemption [_____]
([__] Fed. Reg. [_____], [DATE]), as amended, to [Name of
Underwriter], for
specific offerings in which [Name of Underwriter] or any person
directly or
indirectly, through one or more intermediaries, controlling,
controlled by or
under common control with [Name of Underwriter] is an
underwriter, placement
agent or a manager or co-manager of the underwriting syndicate
or selling group
where the trust and the offered certificates meet specified
conditions. The
Underwriters' Exemption, as amended, provides a partial
exemption for
transactions involving certificates representing a beneficial
interest in a
trust and entitling the holder to pass-through payments of
principal, interest
and/or other payments with respect to the trust's assets.
"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 treated as a
corporation or
partnership for United States federal income tax purposes)
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
Treasury regulations) provided that, for purposes solely of the
restrictions on
the transfer of 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
the income of
which from sources without the United States is includible 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, 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 authority
to control all substantial decisions of the trust. The term
"United States"
shall have the meaning set forth in Section 7701 of the Code or
successor
provisions.
"Value": With respect to any Mortgaged Property, the value
thereof as determined by an independent appraisal made at the
time of the
origination of the related Mortgage Loan or the sale price, if
the appraisal is
not available; except that, with respect to any Mortgage Loan
that is a purchase
money mortgage loan, the lesser of (i) the value thereof as
determined by an
independent appraisal made at the time of the origination of
such Mortgage Loan,
if any, and (ii) the sales price of the related Mortgaged
Property.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. With
respect to any date
of determination, 98% of all Voting Rights will be allocated
among the holders
of the Class A Certificates, the Mezzanine Certificates and the
Class CE
Certificates in proportion to the then outstanding Certificate
Principal
Balances of their respective Certificates, 1% of all Voting
Rights will be
allocated to the holders of the Class P Certificates and 1% of
all Voting Rights
will be allocated among the holders of the Residual
Certificates. The Voting
Rights allocated to each Class of Certificate shall be allocated
among Holders
of each such Class in accordance with their respective
Percentage Interests as
of the most recent Record Date.
SECTION 1.02. Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of Accrued
Certificate
Interest and the amount of the Interest Distribution Amount for
the Class A
Certificates, the Mezzanine Certificates and the Class CE
Interest for any
Distribution Date, (1) the aggregate amount of any Prepayment
Interest
Shortfalls (to the extent not covered by payments by the
Servicer pursuant to
Section 3.24) and any Relief Act Interest Shortfall incurred in
respect of the
Mortgage Loans for any Distribution Date shall be allocated
first, to the Class
CE Interest based on, and to the extent of, one month's interest
at the then
applicable Pass-Through Rate on the Notional Amount of the Class
CE Interest
and, thereafter, among the Class A Certificates and the
Mezzanine Certificates
on a PRO rata basis based on, and to the extent of, one month's
interest at the
then applicable respective Pass-Through Rate on the respective
Certificate
Principal Balance of each such Certificate and (2) the aggregate
amount of any
Realized Losses incurred for any Distribution Date shall be
allocated to the
Class CE Interest based on, and to the extent of, one month's
interest at the
then applicable Pass-Through Rate on the Notional Amount of the
Class CE
Interest.
For purposes of calculating the amount of Uncertificated
Interest for the REMIC I Regular Interests for any Distribution
Date, the
aggregate amount of any Prepayment Interest Shortfalls (to the
extent not
covered by payments by the 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 first, to Uncertificated
Interest payable
to REMIC I Regular Interest I-LTAA and REMIC I Regular Interest
I-LTZZ up to an
aggregate amount equal to the REMIC I Interest Loss Allocation
Amount, 98% and
2%, respectively, and thereafter among REMIC I Regular Interest
I-LTAA, REMIC I
Regular Interest I-LTA, REMIC I Regular Interest I-LTM1, REMIC I
Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5 and REMIC I Regular
Interest I-LTZZ PRO
RATA based on, and to the extent of, one month's interest at the
then applicable
respective Pass-Through Rate on the respective Uncertificated
Balance of each
such REMIC I Regular Interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the 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 each
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 Servicer on or with respect to
the Mortgage
Loans (other than payments of principal and interest due on such
Mortgage Loans
on or before the Cut-off Date). The Depositor herewith delivers
to the Trustee
an executed copy of the Mortgage Loan Purchase Agreement.
In connection with such transfer and assignment, the
Depositor
does hereby deliver to, and deposit with, the Trustee, the
following documents
or instruments with respect to each Mortgage Loan so transferred
and assigned (a
"Mortgage File"):
(i) the original Mortgage Note (including any riders
thereto),
endorsed in blank or in the following form: "Pay to the order of
[NAME OF
TRUSTEE], as Trustee under the applicable agreement, without
recourse,"
with all prior and intervening endorsements showing a complete
chain of
endorsement from the originator to the Person so endorsing to
the Trustee;
(ii) the original Mortgage, 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;
(iii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment in blank;
(iv) the original recorded Assignment or Assignments showing
a
complete chain of assignment 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 or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy, together
with all endorsements or riders that were issued with or
subsequent to the
issuance of such policy, insuring the Mortgage 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.
With respect to a maximum of 2.0% of the Original Mortgage
Loans, by outstanding principal balance of the Original Mortgage
Loans as of the
Cut-off Date, if any original Mortgage Note referred to in
Section 2.01(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
substantially in
the form of Exhibit K attached hereto. 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 Sections 2.01(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
of a copy of
each such document certified by the related Originator in the
case of (x) above
or the applicable public recording office in the case of (y)
above to be a true
and complete copy of the original that was submitted for
recording and (2) if
such copy is certified by the related Originator, 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. Notice shall be provided to the Trustee
and the Rating
Agencies by the Seller if delivery pursuant to clause (2) above
will be made
more than 180 days after the Closing Date. If the original
lender's title
insurance policy was not delivered pursuant to Section 2.01(vi)
above, the
Depositor shall deliver or cause to be delivered to the Trustee,
promptly after
receipt thereof, the original lender's title insurance policy.
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 or modification of
any Mortgage
Loan.
Except with respect to any Mortgage Loan for which MERS is
identified on the Mortgage or on a properly recorded assignment
of the Mortgage
as the mortgagee of record, the Trustee shall enforce the
obligation of the
Seller or the related Originator, as applicable, under the
related Mortgage Loan
Purchase Agreement to promptly (within sixty days following the
later of the
Closing Date and the date of receipt by the Trustee of the
recording information
for a Mortgage, but in no event later than ninety days following
the Closing
Date) submit or cause to be submitted for recording, at the
expense of the
related Originator and at no expense to the Trust Fund, the
Trustee, the
Servicer or the Depositor, in the appropriate public office for
real property
records, each Assignment referred to in Sections 2.01(iii) and
(iv) above and
the Depositor shall execute each original Assignment or cause
each original
Assignment to be executed in the following form: "[NAME OF
TRUSTEE], as Trustee
under the applicable agreement." In the event that any such
Assignment is lost
or returned unrecorded because of a defect therein, the Seller
or the related
Originator, as applicable, shall promptly prepare or cause to be
prepared a
substitute Assignment or cure or cause to be cured such defect,
as the case may
be, and thereafter cause each such Assignment to be duly
recorded. If the
related Originator is unable to pay the cost of recording the
Assignments, such
expense will be paid by the Trustee and shall be reimbursable to
the Trustee as
an Extraordinary Trust Fund Expense. Notwithstanding the
foregoing, the Trustee
shall not be responsible for determining whether any Assignment
delivered by the
Depositor hereunder is in recordable form.
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 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 Servicer to, and the 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 the
Seller, the Depositor
or the 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 Servicer.
SECTION 2.02. Acceptance of REMIC I by Trustee.
The Trustee, acknowledges receipt, subject to the provisions
of Section 2.01 and subject to any exceptions noted on the
exception report
described in the next paragraph below, of the documents referred
to in Section
2.01 (other than such documents described in Section 2.01(v))
above and all
other assets included in the definition of "REMIC I" under
clauses (i), (iii),
(iv) and (v) (to the extent of amounts attributable thereto
deposited into the
Distribution Account) 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.
The Trustee agrees, for the benefit of the
Certificateholders,
to review each Mortgage File on or before the Closing Date and
to certify in
substantially the form attached hereto as Exhibit C-1 that, as
to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in
full or any Mortgage Loan specifically identified in the
exception report
annexed thereto as not being covered by such certification), (i)
all documents
constituting part of such Mortgage File (other than such
documents described in
Section 2.01(v)) required to be delivered to it pursuant to this
Agreement are
in its possession, (ii) such documents have been reviewed by it
and appear
regular on their face 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),
(xi), (xii) and
(xv) of the definition of "Mortgage Loan Schedule" accurately
reflects
information set forth in the Mortgage File. It is herein
acknowledged that, in
conducting such review, the Trustee was under no duty or
obligation (i) to
inspect, review or examine any such documents, instruments,
certificates or
other papers to determine whether they are genuine, enforceable,
valid, legally
binding, effective or appropriate for the represented purpose or
whether they
have actually been recorded or are in recordable form or that
they are other
than what they purport to be on their face, (ii) to determine
whether any
Mortgage File should include any of the documents specified in
clause (v) of
Section 2.01 or (iii) to determine the perfection or priority of
any security
interest in any such documents or instruments. Notwithstanding
the foregoing, in
conducting the review described in this Section 2.02, the
Trustee shall not be
responsible for determining (i) if an Assignment is sufficient
under the laws of
the jurisdiction wherein the related Mortgaged Property is
located to reflect of
record the sale of the Mortgage or (ii) if a Mortgage creates a
first lien on,
or first priority security interest in, a Mortgaged
Property.
Prior to the first anniversary date of this Agreement, the
Trustee shall deliver to the Depositor and the 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,
and the Servicer
shall forward a copy thereof to any Sub-Servicer.
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
Servicer. In addition,
upon the discovery by the Depositor, the Servicer or the Trustee
of a breach of
any of the representations and warranties made by either
Originator or the
Seller in the related Mortgage Loan Purchase Agreement in
respect of any
Mortgage Loan which materially adversely affects such Mortgage
Loan or the
interests of the Certificateholders in such Mortgage Loan, the
party discovering
such breach shall give prompt written notice to the other
parties.
The Trustee shall, at the written request and expense of any
Certificateholder, provide a written report to such
Certificateholder of all
Mortgage Files released to the Servicer for servicing
purposes.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans
by
the Originator.
(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 either Originator or the Seller of any
representation, warranty or
covenant under the Mortgage Loan Purchase Agreement in respect
of any Mortgage
Loan that materially adversely affects the value of such
Mortgage Loan or the
interest therein of the Certificateholders, the Trustee shall
promptly notify
the Seller, the related Originator and the Servicer of such
defect, missing
document or breach and request that the related Originator or
the Seller, as
applicable, deliver such missing document or cure such defect or
breach within
60 days from the date the related Originator or the Seller, as
applicable, was
notified of such missing document, defect or breach, and if the
related
Originator or the Seller, as applicable, does not deliver such
missing document
or cure such defect or breach in all material respects during
such period, the
Servicer, in accordance with Section 3.02(b), shall enforce the
obligations of
the related Originator or the Seller, as applicable, 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 related
Originator or the
Seller, as applicable, was notified (subject to Section 2.03(c))
of such missing
document, defect or breach, if and to the extent that the
related Originator or
the Seller is obligated to do so under the Mortgage Loan
Purchase Agreement. The
Purchase Price for the repurchased Mortgage Loan shall be
remitted to the
Servicer for deposit in the Collection Account and the Trustee,
upon receipt of
written certification from the Servicer of such deposit, shall
release to the
related Originator or the Seller, as applicable, the related
Mortgage File and
the Trustee shall execute and deliver such instruments of
transfer or
assignment, in each case without recourse, as the related
Originator or the
Seller, as applicable, shall furnish to it and as shall be
necessary to vest in
the related Originator or the Seller, as applicable, any
Mortgage Loan released
pursuant hereto. In furtherance of the foregoing, if the related
Originator or
the Seller, as applicable, is not a member of MERS and
repurchases a Mortgage
Loan which is registered on the MERS(R) System, the related
Originator or the
Seller, as applicable, 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 related
Originator or the Seller, as applicable, and shall cause such
Mortgage to be
removed from registration on the MERS(R) System in accordance
with MERS' rules
and regulations. The Trustee shall not have any further
responsibility with
regard to such Mortgage File. In lieu of repurchasing any such
Mortgage Loan as
provided above, if so provided in the Mortgage Loan Purchase
Agreement, the
related Originator or the Seller, as applicable, 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(b). It is
understood and
agreed that the obligation of the related Originator and 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 and the
Certificateholders.
(b) 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 related
Originator or the Seller substitutes a Qualified Substitute
Mortgage Loan or
Loans, such substitution shall be effected by the related
Originator or the
Seller, as applicable, 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 with such
substitution. The
Trustee shall acknowledge receipt for such Qualified Substitute
Mortgage Loan or
Loans and, within ten Business Days thereafter, shall review
such documents as
specified in Section 2.02 and deliver to the Depositor and the
Servicer, with
respect to such Qualified Substitute Mortgage Loan or Loans, a
certification
substantially in the form attached hereto as Exhibit C-1, with
any applicable
exceptions noted thereon. Within one year of the date of
substitution, the
Trustee shall deliver to the Depositor and the Servicer a
certification
substantially in the form of Exhibit C-2 hereto with respect to
such Qualified
Substitute Mortgage Loan or Loans, with any applicable
exceptions noted thereon.
Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the
month of substitution are not part of REMIC I and will be
retained by the
Originator or the Seller, as applicable. 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 related Originator or the Seller, as applicable, shall
thereafter be
entitled to retain all amounts subsequently received in respect
of such Deleted
Mortgage Loan. The Depositor shall give or cause to be given
written notice to
the Certificateholders that such substitution has taken place,
shall amend the
Mortgage Loan Schedule to reflect the removal of such Deleted
Mortgage Loan from
the terms of this Agreement and the substitution of the
Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended
Mortgage Loan
Schedule to the Trustee. Upon such substitution, such Qualified
Substitute
Mortgage Loan or Loans shall constitute part of the Mortgage
Pool and shall be
subject in all respects to the terms of this Agreement and the
Mortgage Loan
Purchase Agreement, including, all applicable representations
and warranties
thereof included in the Mortgage Loan Purchase Agreement.
For any month in which either Originator or the Seller, as
applicable, substitutes one or more Qualified Substitute
Mortgage Loans for one
or more Deleted Mortgage Loans, the 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 Stated Principal Balance
thereof as of
the date of substitution, together with one month's interest on
such Stated
Principal Balance at the applicable Net Mortgage Rate, plus all
outstanding
Advances and Servicing Advances (including Nonrecoverable
Advances and
Nonrecoverable Servicing Advances) related thereto. On the date
of such
substitution, the related Originator or the Seller, as
applicable, will deliver
or cause to be delivered to the 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 Servicer of such deposit, shall release to
the related
Originator or the Seller, as applicable, the related Mortgage
File or Files and
the Trustee shall execute and deliver such instruments of
transfer or
assignment, in each case without recourse, the related
Originator or the Seller,
as applicable, shall deliver to it and as shall be necessary to
vest therein any
Deleted Mortgage Loan released pursuant hereto.
In addition, the related Originator or the Seller, as
applicable, 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 any Trust REMIC, including without
limitation, any
federal tax imposed on "prohibited transactions" under Section
860F(a)(1) of the
Code or on "contributions after the startup date" under Section
860G(d)(1) of
the Code, or (b) any Trust REMIC to fail to qualify as a REMIC
at any time that
any Certificate is outstanding.
(c) Upon discovery by the Depositor, the Seller, the
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 shall repurchase
or, subject to the
limitations set forth in Section 2.03(b), substitute one or more
Qualified
Substitute Mortgage Loans for the affected Mortgage Loan within
90 days of the
earlier of discovery or receipt of such notice with respect to
such affected
Mortgage Loan. Any such repurchase or substitution shall be made
in the same
manner as set forth in Section 2.03(a). The Trustee shall
reconvey to the Seller
the Mortgage Loan to be released pursuant hereto in the same
manner, and on the
same terms and conditions, as it would a Mortgage Loan
repurchased for breach of
a representation or warranty.
SECTION 2.04. Reserved.
SECTION 2.05. Representations, Warranties and Covenants of
the
Servicer.
The Servicer hereby represents, warrants and covenants to
the
Trustee, for the benefit of the Certificateholders and to the
Depositor that as
of the Closing Date or as of such date specifically provided
herein:
(i) The 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 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 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
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
Servicer, enforceable against the 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
Servicer, the servicing of the Mortgage Loans by the 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 Servicer and will not (A) result in a breach of
any term or
provision of the charter or by-laws of the Servicer or (B)
conflict with, result
in a breach, violation or acceleration of, or result in a
default under, the
terms of any other material agreement or instrument to which the
Servicer is a
party or by which it may be bound, or any statute, order or
regulation
applicable to the Servicer of any court, regulatory body,
administrative agency
or governmental body having jurisdiction over the Servicer; and
the 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 Servicer's knowledge, would in the future materially and
adversely affect,
(x) the ability of the Servicer to perform its obligations under
this Agreement
or (y) the business, operations, financial condition, properties
or assets of
the Servicer taken as a whole;
(iv) The Servicer is an approved seller/servicer for Fannie
Mae or Freddie Mac in good standing and is a HUD approved
mortgagee pursuant to
Section 203 of the National Housing Act;
(v) No litigation is pending against the Servicer that would
materially and adversely affect the execution, delivery or
enforceability of
this Agreement or the ability of the 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 Servicer of, or compliance by the 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 Servicer covenants that its computer and other
systems used in servicing the Mortgage Loans operate in a manner
such that the
Servicer can service the Mortgage Loans in accordance with the
terms of this
Agreement; and
(viii) The 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 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, Prepayment Charge or the
interests therein of
the Certificateholders, the party discovering such breach shall
give prompt
written notice (but in no event later than two Business Days
following such
discovery) to the Trustee. Subject to Section 7.01, unless such
breach shall not
be susceptible of cure within 90 days, the obligation of the
Servicer set forth
in Section 2.03(c) to cure breaches shall constitute the sole
remedy against the
Servicer available to the Certificateholders, the Depositor or
the Trustee on
behalf of the Certificateholders respecting a breach of the
representations,
warranties and covenants contained in this Section 2.05.
SECTION 2.06. Issuance of the REMIC I Regular Interests and
the Class R-I Interest.
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, the receipt of which is hereby
acknowledged.
Concurrently with such assignment and delivery and in exchange
therefor, the
Trustee, pursuant to the written request of the Depositor
executed by an officer
of the Depositor, has executed, authenticated and delivered to
or upon the order
of the Depositor, the Class R Certificates (in respect of the
Class R-I
Interest) in authorized denominations. 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 rights of the
Class R-I Interest
and REMIC II (as holder of the REMIC I Regular Interest) to
receive
distributions from the proceeds of REMIC I in respect of the
Class R-I Interest
and the REMIC I Regular Interests, and all ownership interests
evidenced or
constituted by the Class R-I Interest and the REMIC I Regular
Interests, shall
be as set forth in this Agreement.
SECTION 2.07. Conveyance of the REMIC I Regular Interests;
Acceptance of REMIC II by the Trustee.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise
convey to the
Trustee, without recourse all the right, title and interest of
the Depositor in
and to the REMIC I Regular Interests for the benefit of the
Class R-II Interest
and REMIC II (as holder of the REMIC I Regular Interests). The
Trustee
acknowledges receipt of the REMIC I Regular Interests and
declares that it holds
and will ho
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