NATIONAL CITY MORTGAGE CAPITAL LLC as Depositor and as Owner Trustee TRUST AGREEMENT Dated as of __________
EXHIBIT
4.4
as
Depositor
and
_________________________
as
Owner
Trustee
Dated
as
of __________
[NATIONAL
CITY MORTGAGE CAPITAL LLC [MORTGAGE] LOAN TRUST], SERIES 20__-____
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions
Section
1.02 Other
Definitional Provisions
ARTICLE
II ORGANIZATION
Section
2.01 Name
Section
2.02 Office
Section
2.03 Purposes
and Powers
Section
2.04 Appointment
of Owner Trustee
Section
2.05 Initial
Capital Contribution of Owner Trust Estate
Section
2.06 Declaration
of Trust
Section
2.07 Liability
of the Holder of the Certificates
Section
2.08 Title
to
Trust Property
Section
2.09 State
of
Trust
Section
2.10 Representations
and Warranties of the Depositor
Section
2.11 Payment
of Trust Fees
ARTICLE
III CONVEYANCE OF THE MORTGAGE COLLATERAL; CERTIFICATES
Section
3.01 Conveyance
of the Mortgage Collateral
Section
3.02 Initial
Ownership
Section
3.03 The
Certificates
Section
3.04 Authentication
of Certificates
Section
3.05 Registration
of and Limitations on Transfer and Exchange of Certificates
Section
3.06 Mutilated,
Destroyed, Lost or Stolen Certificates
Section
3.07 Persons
Deemed Certificateholders
Section
3.08 Access
to
List of Certificateholders’ Names and Addresses
Section
3.09 Maintenance
of Office or Agency
Section
3.10 Certificate
Paying Agent
Section
3.11 Ownership
ARTICLE
IV AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section
4.01 General
Authority
Section
4.02 General
Duties
Section
4.03 Action
Upon Instruction
Section
4.04 No
Duties
Except as Specified under Specified Documents or In Instructions
Section
4.05 Restrictions
Section
4.06 Prior
Notice to Certificateholders with Respect to Certain Matters
Section
4.07 Action
by
Certificateholders with Respect to Certain Matters
Section
4.08 Action
by
Certificateholders with Respect to Bankruptcy
Section
4.09 Restrictions
on Certificateholders’ Power
Section
4.10 Majority
Control
ARTICLE
V
APPLICATION OF TRUST FUNDS
Section
5.01 Distributions
Section
5.02 Method
Of
Payment
Section
5.03 Signature
on Returns
Section
5.04 Statements
To Certificateholders
Section
5.05 Tax
Reporting; Tax Elections
ARTICLE
VI CONCERNING THE OWNER TRUSTEE
Section
6.01 Acceptance
of Trusts and Duties
Section
6.02 Furnishing
of Documents
Section
6.03 Representations
and Warranties
Section
6.04 Reliance;
Advice of Counsel
Section
6.05 NOT
ACTING IN INDIVIDUAL CAPACITY
Section
6.06 Power
Trustee not Liable for Certificates or Related Documents
Section
6.07 Owner
Trustee May Own Certificates and Bonds
ARTICLE
VII COMPENSATION OF OWNER TRUSTEE
Section
7.01 Owner
Trustee’s Fees and Expenses
Section
7.02 Indemnification
ARTICLE
VIII TERMINATION OF TRUST AGREEMENT
Section
8.01 Termination
of Trust Agreement
Section
8.02 Dissolution
Upon Bankruptcy of the Holder of the Designated Certificate
ARTICLE
IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.01 Eligibility
Requirements for Owner Trustee
Section
9.02 Replacement
of Owner Trustee
Section
9.03 Successor
Owner Trustee
Section
9.04 Merger
or
Consolidation of Owner Trustee
Section
9.05 Appointment
of Co-Trustee or Separate Trustee
ARTICLE
X
MISCELLANEOUS
Section
10.01 Amendments
Section
10.02 No
Legal
Title to Owner Trust Estate
Section
10.03 Limitations
on Rights of Others
Section
10.04 Notices
Section
10.05 Severability
Section
10.06 Separate
Counterparts
Section
10.07 Successors
and Assigns
Section
10.08 No
Petition
Section
10.09 No
Recourse
Section
10.10 Headings
Section
10.11 Governing
Law
Section
10.12 Integration
SIGNATURES
EXHIBIT
Exhibit
A
- Form of Certificate
Exhibit
B
- Certificate of Trust of National
City Mortgage Capital LLC [Mortgage] Loan Trust
Exhibit
C
- Form of Certificate of Non-Foreign Status
Exhibit
D
- Form of Investment Letter
Exhibit
E
- Form of Investment Letter for Certificates
This
Trust Agreement, dated as of ________________ (as amended from time to time,
this “Trust Agreement”), between National
City Mortgage Capital LLC,
a
Delaware limited liability company, as Depositor (the “Depositor”) and
______________________________________, a Delaware ___________________, as
Owner
Trustee (the “Owner Trustee”),
WITNESSETH
THAT:
In
consideration of the mutual agreements herein contained, the Depositor and
the
Owner Trustee agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For all
purposes of this Trust Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Indenture.
All other capitalized terms used herein shall have the meanings specified
herein.
Section
1.02 Other
Definitional Provisions.
(a) All
terms
defined in this Trust Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Trust
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Trust Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Trust Agreement or in any such certificate or other document shall
control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular pro vision of this Trust Agreement; Section and Exhibit references
contained in this Trust Agreement are references to Sections and Exhibits in
or
to this Trust Agreement unless otherwise specified; and the term “including”
shall mean “including without limitation.”
(d) The
definitions contained in this Trust Agreement are applicable to the singular
as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
ORGANIZATION
Section
2.01 Name.
The
trust created hereby (the “Trust”) shall be known as “National
City Mortgage Capital LLC [Mortgage] Loan Trust
____,”
in which name the Owner Trustee may conduct the business of the Trust, make
and
execute contracts and other instruments on behalf of the Trust and ▇▇▇ and
be
sued.
Section
2.02 Office.
The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in Delaware as the Owner Trustee may designate
by written notice to the Certificateholders and the Depositor.
Section
2.03 Purposes
and Powers.
The
purpose of the Trust is to engage in the following activities:
(i) to
issue
the Bonds pursuant to the Indenture and the Certificates pursuant to this Trust
Agreement and to sell the Bonds and the Certificates;
(ii) to
pay
the organizational, start-up and transactional expenses of the
Trust;
(iii) to
assign, grant, transfer, pledge and convey the Mortgage Collateral pursuant
to
the Indenture and to hold, manage and distribute to the Certificateholders
pursuant to Section 5.01 any portion of the Mortgage Collateral released from
the Lien of, and remitted to the Trust pursuant to the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith, including, without limitation, to accept additional
contributions of equity that are not subject to the Lien of the Indenture;
and
(vi) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholders and the Bondholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Trust Agreement or the Basic
Documents [while any Bond is outstanding and without regard to the Bonds and]
[without the consent of __% of the Certificateholders].
Section
2.04 Appointment
of Owner Trustee.
The
Depositor hereby appoints the Owner Trustee as trustee of the Trust effective
as
of the date hereof, to have all the rights, powers and duties set forth
herein.
Section
2.05 Initial
Capital Contribution of Owner Trust Estate.
The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the trust receipt of the Mortgage Collateral and
a
Surety Bond assigned to the Trust pursuant to Section 3.01, which shall
constitute the Owner Trust Estate.
Section
2.06 Declaration
of Trust.
The
Owner Trustee hereby declares that it shall hold the Owner Trust Estate in
trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a
business trust under the Business Trust Statute and that this Trust Agreement
constitute the governing instrument of such business trust. It is the intention
of the parties hereto that, for income and franchise tax purposes, the Trust
shall be treated as a corporation, with the assets of the corporation being
the
Owner Trust Estate, the [equity interest in the corporation] being the
Certificates and the Bonds being debt of the corporation and the provisions
of
this Agreement shall be interpreted to further this intention. Except as
otherwise provided in this Trust Agreement, the rights of the Certificateholders
will be those of [equity owners of the Trust] formed under the Delaware
[corporation law]. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust will file or cause to be filed annual
or
other necessary returns, reports and other forms consistent with the
characterization of the Trust as a corporation for such tax purposes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of the Trust.
Section
2.07 Liability
of the Holder of the Certificates.
i)
The
Holders of the Certificates shall be liable directly to and shall indemnify
any
injured party for all losses, claims, damages, liabilities and expenses of
the
Trust (including Expenses, to the extent not paid out of the Owner Trust Estate)
to the extent that the Holders of the Certificates would be liable if the Trust
were a corporation under [Delaware corporate law]; provided, however, that
the
Holders of the Certificates shall not be liable for payments required to be
made
on the Bonds or the Certificates, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a Bond
holder in the capacity of an investor in the Bonds. The Holders of the
Certificates shall be liable for any entity level taxes imposed on the Trust.
In
addition, any third party creditors of the Trust, including the Credit Enhancer
(other than in connection with the obligations described in the preceding
sentence for which the Holders of the Certificates shall not be liable) shall
be
deemed third party beneficiaries of this paragraph. The obligations of the
Holders of the Certificates under this paragraph shall be evidenced by the
Certificates.
(b) Subject
to subsection (a) above, the Certificateholders shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State
of Delaware.
Section
2.08 Title
to Trust Property.
Legal
title to the Owner Trust Estate shall be vested at all times in the Trust as
a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
Section
2.09 State
of Trust.
The
Trust will be located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust shall be located
in the State of Delaware or the State of ________. The Trust shall not have
any
employees in any state other than Delaware; provided,
however,
that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware or taking actions outside
the
State of Delaware in order to comply with Section 2.03. Payments will be
received by the Trust only in Delaware, New York or ________, and payments
will
be made by the Trust only from Delaware, New York or ________. The only office
of the Trust will be at the Corporate Trust Office in Delaware.
Section
2.10 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The
Depositor is duly organized and validly existing as a limited liability company
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to sell and assign the property to be sold and assigned to and deposited with
the Trust as part of the Trust and the Depositor has duly authorized such sale
and assignment and deposit to the Trust by all necessary corporate action;
and
the execution, delivery and performance of this Trust Agreement have been duly
authorized by the Depositor by all necessary corporate action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the LLC agreement of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a party
or by
which it is bound; nor result in the creation or imposition of any Lien upon
any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor violate
any
law or, to the best of the Depositor’s knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
Section
2.11 Payment
of Trust Fees.
The
Owner Trustee shall cause the Administrator (i) to pay the Trust’s fees and
expenses incurred with respect to the performance of the Trust’s duties under
the Indenture from amounts received pursuant to Section 3.05(x) under the
Indenture and (ii) to notify the Certificate Paying Agent of such fees and
expenses incurred thereunder.
ARTICLE
III
CONVEYANCE
OF THE MORTGAGE COLLATERAL;
CERTIFICATES
Section
3.01 Conveyance
of the Mortgage Collateral.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey, sell and assign to the Trust, on behalf of the Holders of
the
Bonds and the Certificates and the Credit Enhancer, without recourse, all its
right, title and interest in and to the Mortgage Collateral. The Depositor
will
also provide the Trust with a Surety Bond.
The
parties hereto intend that the transaction set forth herein be a sale by the
Depositor to the Trust of all of its right, title and interest in and to the
Mortgage Collateral. In the event that the trans action set forth herein is
not
deemed to be a sale, the Depositor hereby grants to the Trust a security
interest in all of its right, title and interest in, to and under the Owner
Trust Estate, all distributions thereon and all proceeds thereof; and this
Trust
Agreement shall constitute a security agreement under applicable
law.
Section
3.02 Initial
Ownership.
Upon
the formation of the Trust by the contribution by the Depositor pursuant to
Section 2.05 and until the conveyance of the Mortgage Collateral pursuant to
Section 3.01 and the issuance of the Certificates, the Depositor shall be the
sole Certificateholder.
Section
3.03 The
Certificates.
The
Certificates shall be issued in minimum denominations of $[_______] and in
integral multiples of $______ in excess thereof; except for one Certificate
that
may not be in an integral multiple of $______; provided, however, that the
Designated Certificate issued pursuant to Section 3.11 may be issued in the
amount of $_________. The Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of an authorized officer of the Owner Trustee
and authenticated in the manner provided in Section 3.04. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person’s acceptance of a Certificate duly
registered in such Person’s name, pursuant to Section 3.05.
A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee’s acceptance of a Certificate duly registered in
such transferee’s name pursuant to and upon satisfaction of the conditions set
forth in Section 3.05.
Section
3.04 Authentication
of Certificates.
Concurrently with the acquisition of the Mortgage Collateral by the Trust,
the
Owner Trustee shall cause the Certificates in an aggregate principal amount
equal to the Initial Principal Balance of the Certificates to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order
of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under
this
Trust Agreement or be valid for any purpose unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or ____________________, by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section
3.05 Registration
of and Limitations on Transfer and Exchange of Certificates.
The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.09, a Certificate Register in which, subject
to
such reasonable regulations as it may prescribe, the [Owner Trustee] shall
provide for the registration of Certificates and of transfers and exchanges
of
Certificates as herein provided. _____________________________ shall be the
initial Certificate Registrar. If the Certificate Registrar resigns or is
removed, the Owner Trustee shall appoint a successor Certificate
Registrar.
Subject
to satisfaction of the conditions set forth below and to the provisions of
Section 3.11 with respect to the Designated Certificate, upon surrender for
registration of transfer of any Certificate at the office or agency maintained
pursuant to Section 3.09, the Owner Trustee shall execute, authenticate and
deliver (or shall cause __________________________________ as its authenticating
agent to authenticate and deliver) in the name of the designated transferee
or
transferees, one or more new Certificates in authorized denominations of a
like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Holder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate amount
upon surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.09.
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the Holder or such Holder’s attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No
service charge shall be made for any registration of transfer or exchange of
Certificates, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of
Certificates.
No
Person
shall become a Certificateholder until it shall establish its non-foreign status
by submitting to the Certificate Paying Agent an IRS Form W-9 and the
Certificate of Non-Foreign Status set forth in Exhibit C hereto.
No
transfer of a Certificate shall be made unless such transfer is exempt from
the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (i) (a) an investment letter
(in
substantially the form attached hereto as Exhibit D) in form and substance
reasonably satisfactory to the Certificate Registrar and the Depositor
certifying to the Trust, the Owner Trustee, the Certificate Registrar and the
Depositor that such transferee is a “qualified institutional buyer” under Rule
144A under the Securities Act, or (b) solely with respect to the Designated
Certificate, an investment letter (in substantially the form attached hereto
as
Exhibit E), acceptable to and in form and substance reasonably satisfactory
to
the Certificate Registrar and the Depositor, which investment letters shall
not
be an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Servicer or the Depositor and (ii) the Certificate of Non-Foreign Status (in
substantially the form attached hereto as Exhibit C) acceptable to and in form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor, which certificate shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor. The Holder of a Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trust, the Owner Trustee, the Certificate Registrar, the Servicer and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No
transfer of a Certificate shall be made unless the Certificate Registrar shall
have received either (i) a representation letter from the proposed transferee
of
such Certificate to the effect that such proposed transferee is not an employee
benefit plan subject to the fiduciary responsibility provisions of ERISA, or
Section 4975 of the Code, or a Person acting on behalf of any such plan or
using
the assets of any such plan, which representation letter shall not be an expense
of the Trust, Owner Trustee, the Certificate Registrar, the Servicer or the
Depositor or (ii) in the case of any such certificate presented for registration
in the name of an employee benefit plan subject to the fiduciary responsibility
provisions of ERISA, or Section 4975 of the Code (or comparable provisions
of
any subsequent enactments), or a trustee of any such plan, or any other Person
who is using the assets of any such plan to effect such acquisition, an Opinion
of Counsel, in form and substance reasonably satisfactory to, and addressed
and
delivered to, the Trust, the Certificate Registrar and the Depositor, to the
effect that the purchase or holding of such Certificate will not result in
the
assets of the Owner Trust Estate being deemed to be “plan assets” and subject to
the fiduciary responsibility provisions of ERISA or the prohibited transaction
provisions of the Code, will not constitute or result in a prohibited
transaction within the meaning of Section 406 or Section 407 of ERISA or Section
4975 of the Code, and will not subject the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those explicitly undertaken in this Trust Agreement which Opinion of Counsel
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar or Depositor.
Section
3.06 Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them harmless, then in the absence
of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee shall execute
on
behalf of the Trust and the Owner Trustee or ________________, as the Trust’s
authenticating agent, shall authenticate and deliver, in exchange for or in
lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and denomination. In connection with the issuance of any new
Certificate under this Section 3.06, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 3.06 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not
the
lost, stolen or destroyed Certificate shall be found at any time.
Section
3.07 Persons
Deemed Certificateholders.
Prior
to due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the
Person in whose name any Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the
Trust, the Owner Trustee, the Certificate Registrar or any Paying Agent shall
be
bound by any notice to the contrary.
Section
3.08 Access
to List of Certificateholders’ Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor
or
the Owner Trustee, within 15 days after receipt by the Certificate Registrar
of
a written request therefor from the Depositor or the Owner Trustee, a list,
in
such form as the Depositor or the Owner Trustee, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders as
of
the most recent Record Date. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
depositor, the Holder of the Designated Certificate, the Certificate Registrar
or the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was
derived.
Section
3.09 Maintenance
of Office or Agency.
The
Owner Trustee on behalf of the Trust, shall maintain in the Borough of
Manhattan, The City of New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee initially
designates the Corporate Trust Office of the Owner Trustee as its office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor, the Holder of the Designated Certificate and the Certificateholders
of any change in the location of the Certificate Register or any such office
or
agency.
Section
3.10 Certificate
Paying Agent.
ii)
The
Certificate Paying Agent shall make distributions to Certificateholders from
the
Certificate Distribution Account on behalf of the Trust in accordance with
the
provisions of the Certificates and Section 5.01 hereof from payments remitted
to
the Certificate Paying Agent by the Indenture Trustee pursuant to Section 3.05
of the Indenture. The Trust hereby appoints __________________ as Certificate
Paying Agent and _________________ hereby accepts such appointment and further
agrees that it will be bound by the provisions of this Trust Agreement relating
to the Certificate Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificates
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which it has actual
knowledge in the making of any payment required to be made with respect to
the
Certificates;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) immediately
resign as Certificate Paying Agent and forthwith pay to the Owner Trustee on
behalf of the Trust all sums held by it in trust for the payment of Certificates
if at any time it ceases to meet the standards required to be met by the
Certificate Paying Agent at the time of its appointment;
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Certificates of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(vi) deliver
to the Owner Trustee a copy of the report to Certificateholders prepared with
respect to each Payment Date by the Servicer pursuant to Section 4.01 of the
Servicing Agreement.
(b) On
the
second LIBOR Business Day immediately preceding (i) the Closing Date in the
case
of the first Interest Period and (ii) the first day of each succeeding Interest
Period, the Certificate Paying Agent shall determine LIBOR and the Certificate
Rate for such Interest Period and shall inform the Servicer and the Depositor
at
their respective facsimile numbers given to the Certificate Paying Agent in
writing thereof.
(c) The
Trust
may revoke such power and remove the Certificate Paying Agent if the
Administrator determines in its sole discretion that the Certificate Paying
Agent shall have failed to perform its obligations under this Trust Agreement
in
any material respect. __________________ shall be permitted to resign as
Certificate Paying Agent upon 30 days written notice to the Owner Trustee;
provided ________________ is also resigning as Paying Agent under the Indenture
at such time. In the event that ___________________ shall no longer be the
Certificate Paying Agent under this Trust Agreement and Paying Agent under
the
Indenture, the Administrator shall appoint a successor to act as Certificate
Paying Agent (which shall be a bank or trust company) and which shall also
be
the successor Paying Agent under the Indenture. The Administrator shall cause
such successor Certificate Paying Agent or any additional Certificate Paying
Agent appointed by the Administrator to execute and deliver to the Owner Trustee
an instrument to the effect set forth in this Section 3.10 as it relates to
the
Certificate Paying Agent. The Certificate Paying Agent shall return all
unclaimed funds to the Trust and upon removal of a Certificate Paying Agent
such
Certificate Paying Agent shall also return all funds in its possession to the
Trust. The provisions of Sections 6.01, 6.03, 6.04 and 7.01 shall apply to
the
Certificate Paying Agent to the extent applicable. Any reference in this
Agreement to the Certificate Paying Agent shall include any co-paying agent
unless the context requires otherwise.
(d) The
Certificate Paying Agent shall establish and maintain with itself a trust
account (the “Certificate Distribution Account”) in which the Certificate Paying
Agent shall, deposit, on the same day as it is received from the Indenture
Trustee, each remittance received by the Certificate Paying Agent with respect
to payments made pursuant to the Indenture. The Certificate Paying Agent shall
make all distributions of principal of and interest on the Certificates, from
moneys on deposit in the Certificate Distribution Account.
Section
3.11 Ownership.
The
Certificates shall, for income and franchise tax purposes, be treated as the
equity interest of the Trust. The Certificates shall not be transferred unless
(a) the transferee shall be an Affiliate of the Seller, unless the prior written
consent of the Credit Enhancer is obtained, which will not be unreasonably
withheld, (b) the applicable provisions of Section 3.05 are satisfied, (c)
the
Certificate Registrar receives an Opinion of Counsel to the effect that the
transfer of the Certificates shall not cause the Trust to be subject to an
entity level tax and (d) the Rating Agencies shall consent to such
transfer.
ARTICLE
IV
AUTHORITY
AND DUTIES OF OWNER TRUSTEE
Section
4.01 General
Authority.
The
Owner Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party and any amendment or other agreement or
instrument described herein, in each case, in such form as the Administrator
shall approve, as evidenced conclusively by the Owner Trustee’s execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant
to
the Basic Documents. The Owner Trustee is further authorized from time to time
to take such action as the Administrator directs with respect to the Basic
Documents.
Section
4.02 General
Duties.
It
shall be the duty of the Owner Trustee to discharge (or cause to be discharged)
all of its responsibilities pursuant to the terms of this Trust Agreement and
the Basic Documents to which the Trust is a party and to administer the Trust
in
the interest of the Certificateholders, subject to the Basic Documents and
in
accordance with the provisions of this Trust Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties
and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform such acts
or
to discharge such duties of the Owner Trustee or the Trust hereunder or under
any Basic Document, and the Owner Trustee shall not be held liable for the
default or failure of the Administrator to carry out its obligations under
the
Administration Agreement.
Section
4.03 Action
Upon Instruction.
iii)
Subject
to Article IV and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to
result in liability on the part of the Owner Trustee or is contrary to the
terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Trust Agreement or under any Basic
Document, or in the event that the Owner Trustee is unsure as to the application
of any provision of this Trust Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this Trust
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee shall promptly
give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders (with a copy to the Credit Enhancer) requesting instruction
as to the course of action to be adopted, and to the extent the Owner Trustee
acts in good faith in accordance with any written instruction of the
Certificateholders received, the Owner Trustee shall not be liable on account
of
such action to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Trust Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for such action or inaction.
Section
4.04 No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Owner Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly provided (i) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Trust Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 4.03; and no implied duties or obligations shall
be
read into this Trust Agreement or any Basic Document against the Owner Trustee.
The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The
Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the
Owner
Trust Estate.
Section
4.05 Restrictions.
iv)
The
Owner Trustee shall not take any action (x) that is inconsistent with the
purposes of the Trust set forth in Section 2.03 or (y) that, to the actual
knowledge of the Owner Trustee, would result in the Trust becoming taxable
as a
corporation for federal income tax purposes. The Certificateholders shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section 4.06.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust’s properties or assets,
including those included in the Trust Estate, to any person unless (a) it shall
have received an Opinion of Counsel to the effect that such transaction will
not
have any material adverse tax consequence to the Trust or any Certificateholder
and (b) such conveyance or transfer shall not violate the provisions of Section
3.16(b) of the Indenture.
Section
4.06 Prior
Notice to Certificateholders with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall
have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified the Owner Trustee in writing prior
to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Mortgage Collateral) and the compromise of any action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of cash distributions due
and
owing under the Mortgage Collateral);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Business Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Bondholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Bondholder is not required and such amendment materially
adversely affects the interest of the Certificateholders;
(e) the
amendment, change or modification of the Administration Agreement, except to
cure any ambiguity or to amend or supplement any provision in a manner or add
any provision that would not materially adversely affect the interests of the
Certificateholders; or
(f) the
appointment pursuant to the Indenture of a successor Bond Registrar, Paying
Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Bond Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Trust Agreement, as applicable.
Section
4.07 Action
by Certificateholders with Respect to Certain Matters.
The
Owner Trustee shall not have the power, except upon the direction of the
Certificateholders, and with the consent of the Credit Enhancer, to (a) remove
the Administrator under the Administration Agreement pursuant to Section 8
thereof, (b) appoint a successor Administrator pursuant to Section 8 of the
Administration Agreement, (c) remove the Servicer under the Servicing Agreement
pursuant to Sections 7.01 and 8.05 thereof or (d) except as expressly provided
in the Basic Documents, sell the Mortgage Collateral after the termination
of
the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the
Certificateholders and with the consent of the Credit Enhancer.
Section
4.08 Action
by Certificateholders with Respect to Bankruptcy.
The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and with the consent of the Credit Enhancer and the delivery
to the Owner Trustee by each such Certificateholder of a certificate certifying
that such Certificateholder reasonably believes that the Trust is
insolvent.
Section
4.09 Restrictions
on Certificateholders’ Power.
The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the
Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee
be
obligated to follow any such direction, if given.
Section
4.10 Majority
Control.
Except
as expressly provided herein, any action that may be taken by the
Certificateholders under this Trust Agreement may be taken by the Holders of
Certificates evidencing not less than a majority of the outstanding Principal
Balance of the Certificates. Except as expressly provided herein, any written
notice of the Certificateholders delivered pursuant to this Trust Agreement
shall be effective if signed by Holders of Certificates evidencing not less
than
a majority of the outstanding Principal Balance of the Certificates at the
time
of the delivery of such notice.
ARTICLE
V
APPLICATION
OF TRUST FUNDS
Section
5.01 Distributions.
v)
On each
Payment Date, the Certificate Paying Agent shall distribute to the
Certificateholders all funds on deposit in the Certificate Distribution Account
and available therefore (as provided in section 3.05 of the Indenture), as
principal and the Certificate Distribution Amount for such Payment Date. All
distributions made pursuant to this Section shall be made on a
pro
rata
basis to
the Certificateholders based on the Certificate Principal Balances thereof;
provided however
that any
amount on deposit in the Certificate Distribution Account relating to a payment
to the Certificate Paying Agent pursuant to Section 3.05(xi) of the Indenture
shall be distributed solely to the Designated Certificate.
(b) In
the
event that any withholding tax is imposed on the distributions (or allocations
of income) to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01.
The
Certificate Paying Agent is hereby authorized and directed to retain or cause
to
be retained from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the Trust
(but such authorization shall not prevent the Owner Trustee from contesting
any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated
as
cash distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority.
If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) All
calculations of the Certificate Distribution Amount on the Certificates shall
be
made on the basis of the actual number of days in an Interest Period and a
year
assumed to consist of 360 days.
(d) Distributions
to Certificateholders shall be subordinated to the creditors of the Trust,
including the Bondholders.
Section
5.02 Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to Certificateholders
on
any Payment Date as provided in Section 5.01 shall be made to each
Certificateholder of record on the preceding Record Date either by, in the
case
of any Certificateholder owning Certificates having denominations aggregating
at
least $1,000,000, wire transfer, in immediately available funds, to the account
of such Holder at a bank or other entity having appropriate facilities therefor,
if such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section
5.03 Signature
on Returns.
The
Owner Trustee shall sign on behalf of the Trust the tax returns of the
Trust.
Section
5.04 Statements
To Certificateholders.
On each
Payment Date, the Certificate Paying Agent shall send to each Certificateholder
the statement or statements provided to the Owner Trustee and the Certificate
Paying Agent by the Servicer pursuant to Section 4.01 of the Servicing Agreement
with respect to such Distribution Date.
Section
5.05 Tax
Reporting; Tax Elections.
The
Holder of the Certificate shall cause the Trust to file federal and state income
tax returns and information statements as a corporation for each of its taxable
years. Within 90 days after the end of each calendar year, the Holder of the
Designated Certificate shall cause the Trust to provide to each
Certificateholder an Internal Revenue Service “K-1” or any successor schedule
and supplemental information, if required by law, to enable each
Certificateholder to file its federal and state income tax returns. The Holder
of the Designated Certificate may from time to time make and revoke such tax
elections with respect to the Trust as it deems necessary or desirable in its
sole discretion to carry out the business of the Trust or the purposes of this
Trust Agreement if permitted by applicable law. Notwithstanding the foregoing,
an election under Section 754 of the Code shall not be made without the written
consent of a majority in interest of the Holders of the Certificates. The Holder
of the Designated Certificate shall serve as tax matters partner for the
Trust.
ARTICLE
VI
CONCERNING
THE OWNER TRUSTEE
Section
6.01 Acceptance
of Trusts and Duties.
The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Owner Trustee and the Certificate Paying Agent also agree to
disburse all moneys actually received by it constituting part of the Owner
Trust
Estate upon the terms of the Basic Documents and this Trust Agreement. The
Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
negligence or bad faith or negligent failure to act or (ii) in the case of
the
inaccuracy of any representation or warranty contained in Section 6.03 expressly
made by the Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the pre ceding sentence):
(a) The
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Administrator or the
Certificateholders;
(b) No
provision of this Trust Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights, duties or powers hereunder or under any
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) Under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Bonds;
(d) The
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or the Holder of the Designated Certificate or for the form,
character, genuineness, sufficiency, value or validity of any of the Owner
Trust
Estate, or for or in respect of the validity or sufficiency of the Basic
Documents, the Bonds, the Certificates, other than the certificate of
authentication on the Certificates, if executed by the Owner Trustee and the
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Bondholder or to any Certificateholder, other than as
expressly provided for herein or expressly agreed to in the Basic
Documents;
(e) The
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The
Owner
Trustee shall not be liable for the default or misconduct of the Administrator,
the Holder of the Designated Certificate, the Depositor, Indenture Trustee
or
the Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
under this Trust Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture or the Seller under the Mortgage Loan Purchase
Agreement; and
(g) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its negligence or willful misconduct in the performance of any such
act.
Section
6.02 Furnishing
of Documents.
The
Owner Trustee shall furnish to the Securityholders promptly upon receipt of
a
written reasonable request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trust under the Basic Documents.
Section
6.03 Representations
and Warranties.
The
Owner Trustee hereby represents and warrants to the Depositor, for the benefit
of the Certificateholders, that:
(a) It
is a
banking corporation duly organized and validly existing in good standing under
the laws of the State of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Trust
Agreement.
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Trust Agreement on its behalf.
(c) Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
(d) This
Trust Agreement, assuming due authorization, execution and delivery by the
Owner
Trustee and the Depositor, constitutes a valid, legal and binding obligation
of
the Owner Trustee, enforceable against it in accordance with the terms hereof
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors’ rights generally and to
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(e) The
Owner
Trustee is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any Federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the Owner
Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder;
(f) No
litigation is pending or, to the best of the Owner Trustee’s knowledge,
threatened against the Owner Trustee which would prohibit its entering into
this
Trust Agreement or performing its obligations under this Trust Agreement;
Section
6.04 Reliance;
Advice of Counsel.
vi)
The
Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of determination of which is
not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the
treasurer or other authorized officers of the relevant party, as to such fact
or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In
the
exercise or administration of the trusts hereunder and in the performance of
its
duties and obligations under this Trust Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents, attorneys, custodians
or nominees (including persons acting under a power of attorney) pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys , custodians
or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected
with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such Persons
and not contrary to this Trust Agreement or any Basic Document.
Section
6.05 Not
Acting in Individual Capacity.
Except
as provided in this Article VII, in accepting the trusts hereby created
___________________ acts solely as Owner Trustee here under and not in its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Trust Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section
6.06 Power
Trustee not Liable for Certificates or Related Documents.
The
recitals contained herein and in the Certificates (other than the signatures
of
the Owner Trustee on the Certificates) shall be taken as the statements of
the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Bonds, or of any Related Documents. The Owner Trustee
shall
at no time have any responsibility or liability with respect to the sufficiency
of the Owner Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Trust Agreement or the Bondholders
under the Indenture, including, the compliance by the Depositor or the Seller
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation, or
any
action of the Administrator, the Certificate Paying Agent, the Certificate
Registrar or the Indenture Trustee taken in the name of the Owner
Trustee.
Section
6.07 Owner
Trustee May Own Certificates and Bonds.
The
Owner Trustee in its individual or any other capacity may become the owner
or
pledge of Certificates or Bonds and may deal with the Depositor, the Seller,
the
Certificate Paying Agent, the Certificate Registrar, the Administrator and
the
Indenture Trustee in transactions with the same rights as it would have if
it
were not Owner Trustee.
ARTICLE
VII
COMPENSATION
OF OWNER TRUSTEE
Section
7.01 Owner
Trustee’s Fees and Expenses.
The
Owner Trustee shall receive as compensation for its services hereunder such
fees
as have been separately agreed upon before the date hereof, and the Owner
Trustee shall be reimbursed for its reasonable expenses hereunder and under
the
Basic Documents, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may reasonably employ in connection with the exercise and performance
of
its rights and its duties hereunder and under the Basic Documents pursuant
to
Section 3.08 of the Servicing Agreement.
Section
7.02 Indemnification.
The
Holder of the Designated Certificate shall indemnify, defend and hold harmless
the Owner Trustee and its successors, assigns, agents and servants
(collectively, the “Indemnified Parties”) from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
“Expenses” which may at any time be imposed on, incurred by, or asserted against
the Owner Trustee or any Indemnified Party in any way relating to or arising
out
of this Trust Agreement, the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee hereunder, provided,
that:
(i) the
Holder of the Designated Certificate shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from the Owner Trustee’s willful misconduct, negligence or bad faith or as a
result of any inaccuracy of a representation or warranty contained in Section
6.03 expressly made by the Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Holder
of
the Designated Certificate written notice thereof promptly after the Indemnified
Party shall have actual knowledge thereof;
(iii) while
maintaining control over its own defense, the Holder of the Designated
Certificate shall consult with the Indemnified Party in preparing such defense;
and
(iv) notwithstanding
anything in this Agreement to the contrary, the Holder of the Designated
Certificate shall not be liable for settlement of any claim by an Indemnified
Party entered into without the prior consent of the Holder of the Designated
Certificate which consent shall not be unreasonably withheld. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Trust Agreement. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this
Section, the Owner Trustee’s choice of legal counsel, if other than the legal
counsel retained by the Owner Trustee in connection with the execution and
delivery of this Trust Agreement, shall be subject to the approval of the Holder
of the Designated Certificate, which approval shall not be unreasonably
withheld. In addition, upon written notice to the Owner Trustee and with the
consent of the Owner Trustee which consent shall not be unreasonably withheld,
the Holder of the Designated Certificate has the right to assume the defense
of
any claim, action or proceeding against the Owner Trustee.
ARTICLE
VIII
TERMINATION
OF TRUST AGREEMENT
Section
8.01 Termination
of Trust Agreement.
vii)
This
Trust Agreement (other than Article VIII) and the Trust shall terminate and
be
of no further force or effect upon the earliest of (i) upon the final
distribution of all moneys or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture and this Trust Agreement,
(ii) the Payment Date in ____________, (iii) at the time provided in Section
8.02 or (iv) purchase by the Servicer of all Mortgage Loans pursuant to Section
8.08 of the Servicing Agreement. The bankruptcy, liquidation, dissolution,
death
or incapacity of any Certificateholder, other than the Holder of the Designated
Certificate as described in Section 8.02, shall not (x) operate to terminate
this Trust Agreement or the Trust or (y) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the
Trust or the Owner Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except
as
provided in Section 8.01(a), none of the Depositor, the Holder of the Designated
Certificate or any other Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice
of
any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be given
by
the Certificate Paying Agent by letter to Certificateholders and the Credit
Enhancer mailed within five Business Days of receipt of notice of such
termination from the Administrator, stating (i) the Payment Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein designated, (ii) the amount of any such final payment
and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Payment Agent therein specified.
The Certificate Paying Agent shall give such notice to the Owner Trustee and
the
Certificate Registrar at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders amounts distributable
on such Payment Date pursuant to Section 5.01.
In
the
event that all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Certificate Paying Agent shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of
such
remedies shall be distributed by the Certificate Paying Agent to the Holder
of
the Designated Certificate.
(d) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall cause
the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810(c)
of the Business Trust Statute.
Section
8.02 Dissolution
Upon Bankruptcy of the Holder of the Designated Certificate.
In the
event that an Insolvency Event shall occur with respect to the Holder of the
Designated Certificate, this Trust Agreement and the Trust shall be terminated
in accordance with Section 8.01, 90 days after the date of such Insolvency
Event, unless, before the end of such 90-day period, the Owner Trustee shall
have received written instructions from (a) if no Credit Enhancer Default shall
have occurred and be continuing, Holders of Certificates (other than the Holder
of the Designated Certificate) representing more than 50% of the Principal
Balance of the Certificates (not including the Principal Balance of the
Designated Certificate), to the effect that such Holders disapprove of the
termination of the Trust or (b) if a Credit Enhancer Default shall have occurred
and be continuing, (i) each of the Holders of Certificates and (ii) each of
the
Holders of the Bonds, to the effect that such Holders disapprove of the
termination of the Trust. Promptly after the occurrence of any Insolvency Event
with respect to the Holder of the Designated Certificate (A) the Holder of
the
Designated Certificate shall give the Indenture Trustee, the Credit Enhancer
and
the Owner Trustee written notice of such Insolvency Event, (B) the Owner Trustee
shall, upon the receipt of such written notice from the Holder of the Designated
Certificate, give prompt written notice to the Certificateholders of the
occurrence of such event and (C) the Indenture Trustee shall give prompt written
notice of such event to the Bondholders; provided,
however,
that
any failure to give a notice required by this sentence shall not prevent or
delay, in any manner, a termination of the Trust pursuant to the first sentence
of this Section 8.02. Upon a termination pursuant to this Section, the Owner
Trustee shall direct the Indenture Trustee promptly to sell the assets of the
Trust (other than the Payment Account) in a commercially reasonable manner
and
on commercially reasonable terms. The proceeds of any such sale of the assets
of
the Trust shall be deposited to the Payment Account for distribution in
accordance with Section 5.04(b) of the Indenture.
ARTICLE
IX
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.01 Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation satisfying the provisions
of
Section 3807(a) of the Business Trust Statute; authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $__________
and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by [▇▇▇▇▇’▇]. If
such corporation shall publish reports of condition at least annually pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with
the provisions of this Section 9.01, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 9.02.
Section
9.02 Replacement
of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice thereof to the Administrator,
the
Credit Enhancer and the Depositor. Upon receiving such notice of resignation,
the Administrator shall promptly appoint a successor Owner Trustee with the
consent of the Credit Enhancer which will not be unreasonably withheld, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee.
If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Owner Trustee may petition any court of competent jurisdiction for
the
appointment of a successor Owner Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Administrator, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property
or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the
Administrator may remove the Owner Trustee. If the Administrator shall remove
the Owner Trustee under the authority of the immediately preceding sentence,
the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee,
and shall pay all fees owed to the outgoing Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section
9.03 Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Administrator and to its predecessor Owner
Trustee an instrument accepting such appointment under this Trust Agreement,
and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Trust Agreement, with
like
effect as if originally named as Owner Trustee. The predecessor Owner Trustee
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements and monies held by it under this Trust
Agreement; and the Administrator and the predecessor Owner Trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor Owner
Trustee all such rights, powers, duties and obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
9.03 unless at the time of such acceptance such successor Owner Trustee shall
be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.03, the Administrator shall mail notice thereof to all Certificateholders,
the
Indenture Trustee, the Bondholders and the Rating Agencies. If the Administrator
shall fail to mail such notice within 10 days after acceptance of such
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Administrator.
Section
9.04 Merger
or Consolidation of Owner Trustee.
Any
Person into which the Owner Trustee may be merged or converted or with which
it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any
of the parties hereto, anything herein to the contrary not withstanding;
provided,
that
such Person shall be eligible pursuant to Section 9.01 and, provided,
further,
that
the Owner Trustee shall mail notice of such merger or consolidation to the
Rating Agencies.
Section
9.05 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Trust Agreement, at any time, for the purpose
of
meeting any legal requirements of any jurisdiction in which any part of the
Owner Trust Estate may at the time be located, the Administrator and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Administrator and
Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Owner Trust Estate,
and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not
have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Owner Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Trust Agreement shall be required
to meet the terms of eligibility as a successor Owner Trustee pursuant to
Section 9.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Administrator and the Owner Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(d) Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee and a copy thereof given to the Administrator.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
MISCELLANEOUS
Section
10.01 Amendments. viii)
This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section [, provided that any amendment, except as provided
in
subparagraph (e) below, be accompanied by an Opinion of Counsel to the Owner
Trustee to the effect that such amendment (i) complies with the provisions
of
this Section and (ii) will not cause the Trust to be subject to an entity level
tax].
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties and, if applicable,
to
the expectations of the Holders), it shall not be necessary to obtain the
consent of any Holders, but the Owner Trustee shall be furnished with (A) a
letter from the Rating Agencies that the amendment will not result in the
downgrading or with drawal of the rating then assigned to any Security and
(B)
an Opinion of Counsel to the effect that such action will not adversely affect
in any material respect the interests of any Holders, and the consent of the
Credit Enhancer shall be obtained.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding (i.e.
technical in nature), it shall not be necessary to obtain the consent of any
Holder, but the Owner Trustee shall be furnished with an Opinion of Counsel
that
such amendment is necessary or helpful to prevent the imposition of such taxes
and is not materially adverse to any Holder and the consent of the Credit
Enhancer shall be obtained.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel to the effect that such action will
not
adversely affect in any material respect the interests of any Holders and (B)
either (a) a letter from the Rating Agency that the amendment will not result
in
the downgrading or withdrawal of the rating then assigned to any security or
(b)
the consent of Holders of Certificates evidencing a majority of the Principal
Balance of the Certificates and the Indenture Trustee; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder and the Credit Enhancer,
or
(ii) reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of
all such Certificates then outstanding.
(e) If
the
purpose of the amendment is to provide for the holding of any of the
Certificates in book-entry form, it shall require the consent of Holders of
all
such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
(f) If
the
purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary
to
obtain the consent of any Holder, but the Owner Trustee shall be furnished
with
(A) an Opinion of Counsel to the effect that such action will not adversely
affect in any material respect the interests of any Holders and (B) letter
from
the Rating Agencies that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Security and the consent of the
Credit Enhancer shall be obtained.
(g) Promptly
after the execution of any such amendment or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment or consent
to
each Certificate holder, the Indenture Trustee, the Credit Enhancer and each
of
the Rating Agencies. It shall not be necessary for the consent of
Certificateholders or the Indenture Trustee pursuant to this Section 10.01
to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents (and any other consents of Certificateholders provided
for in this Trust Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may
prescribe.
(h) In
connection with the execution of any amendment to any agreement to which the
Trust is a party, other than this Trust Agreement, the Owner Trustee shall
be
entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents
for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State
of
the State of Delaware.
Section
10.02 No
Legal Title to Owner Trust Estate.
The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial interest therein only in accordance with
Articles V and IX. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Trust Agreement or
the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate
Section
10.03 Limitations
on Rights of Others.
Except
for Section 2.07, the provisions of this Trust Agreement are solely for the
benefit of the Owner Trustee, the Depositor, the Holder of the Designated
Certificate, the Certificateholders, the Administrator, the Credit Enhancer
and,
to the extent expressly provided herein, the Indenture Trustee and the
Bondholders, and nothing in this Trust Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person
any
legal or equitable right, remedy or claim in the Owner Trust Estate or under
or
in respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
Section
10.04 Notices.
ix)
Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt , if to the Owner
Trustee, addressed to the Corporate Trust Office; if to the Depositor, addressed
to National
City Mortgage Capital LLC,
_____________________; Attention: _________________; if to the Credit Enhancer,
addressed to ___________, Attention: _________________, if to the Rating
Agencies, addressed to ________________________ Attention: __________or, as
to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
(b) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Trust Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
(c) A
copy of
any notice delivered to the Owner Trustee or the Trust shall also be delivered
to the Depositor and the Administrator.
Section
10.05 Severability.
Any
provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.06 Separate
Counterparts.
This
Trust Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
Section
10.07 Successors
and Assigns.
All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, each of the Depositor, the Owner
Trustee and its successors and each Certificateholder and its successors and
permitted assigns, all as herein provided and the Credit Enhancer. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section
10.08 No
Petition.
The
Owner Trustee, by entering into this Trust Agreement and each Certificateholder,
by accepting a Certificate, hereby covenant and agree that they will not at
any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with
any
obligations to the Certificates, the Bonds, this Trust Agreement or any of
the
Basic Documents.
Section
10.09 No
Recourse.
Each
Certificateholder by accepting a Certificate acknowledges that such
Certificateholder’s Certificates represent beneficial interests in the Trust
only and do not represent interests in or obligations of the Depositor, the
Holder of the Designated Certificate, the Seller, the Administrator, the Owner
Trustee, the Indenture Trustee or any Affiliate thereof and no recourse may
be
had against such parties or their assets, except as may be expressly set forth
or contemplated in this Trust Agreement, the Certificates or the Basic
Documents.
Section
10.10 Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.11 Governing
Law.
THIS
TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
10.12 Integration.
This
Trust Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements
and
understanding pertaining thereto.
IN
WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their names
to
be signed hereto by their respective officers thereunto duly authorized, all
as
of the day and year first above written.
___________________,
not in its individual
capacity
but solely as Owner Trustee,
|
By:
|
||
|
Name:
|
||
|
Title:
|
Acknowledged
and Agreed:
____________________________________
__________,
as Certificate Registrar and Certificate
Paying
Agent
|
By:
|
||
|
Name:
|
||
|
Title:
|
EXHIBIT
A
[Form
of
Certificate]
[Face]
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFI CATE REGISTRAR
SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE TRANSFEREE
OF
THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN, OR (II) IF
THIS
CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PLAN SUBJECT TO
THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, OR SECTION 4975 OF THE CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY SUCH
PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE OWNER TRUST
ESTATE BEING DEEMED TO BE “PLAN ASSETS” AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS
OF
THE CODE, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN
THE
MEANING OF SECTION 406 OR SECTION 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND
WILL NOT SUBJECT THE OWNER TRUSTEE OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFI CATE REGISTRAR
SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE
TRANSFEREE’S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE
DEPOSITOR, THE SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY
OF
THEIR RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLYPROVIDED IN THE TRUST AGREEMENT
OR THE BASIC DOCUMENTS.
Certificate
No._________
Original
principal amount ( “Denomination “) of this Certificate: $_________
Aggregate
Denominations of all Certificates: $_______
Pass-Through
Rate: Floating
Cut-Off
Date:
First
Payment Date
_________,
____
CUSIP
NO.
__________
[National
City Mortgage Capital LLC [Mortgage] Loan Trust], Series 20__-____
Evidencing
a fractional undivided equity interest in the Owner Trust state, the property
of
which consists primarily of the Mortgage Collateral in ________________________,
a corporation sold by _____________ National
City Mortgage Capital LLC,
as
Depositor.
This
certifies that [name of Holder] is the registered owner of the Percentage
Interest represented hereby in the [National
City Mortgage Capital LLC [Mortgage] Loan Trust] ____-__
(the “Trust”).
The
Trust
was created pursuant to an Trust Agreement dated as of ________________ (as
amended and supplemented from time to time, the “Trust Agreement “) between the
Depositor and ______________________, as owner trustee (as amended and
supplemented from time to time, the “Owner Trustee”, which term includes any
successor entity under the Trust Agreement), a summary of certain of the
pertinent provisions of which is set forth hereinafter. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust
Agreement, to which Trust Agreement the Holder of this Certificate by virtue
of
the acceptance hereof assents and by which such Holder is bound.
This
Certificate is one of a duly authorized issue of Mortgage-Backed Pass-Through
Certificates, Series ____-__ (herein called the “Certificates”) issued under the
Trust Agreement to which reference is hereby made for a statement of the
respective rights thereunder of the Depositor, the Owner Trustee and the Holders
of the Certificates and the terms upon which the Certificates are executed
and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement.
The
Owner Trust Estate consists of the Mortgage Collateral in the New [National
City Mortgage Capital LLC [Mortgage] Loan Trust]____-____
and a Surety Bond. The rights of the Holders of the Certificates are
subordinated to the rights of the Holders of the Bonds, as set forth in the
[Indenture].
There
will be distributed on the [twentieth] day of each month or, if such [twentieth]
day is not a Business Day, the next Business Day (each, a “Payment Date”),
commencing in _____________, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
preceding the month of such Payment Date (the “Record Date”), such
Certificateholder’s Percentage Interest (obtained by dividing the Denomination
of this Certificate by the aggregate Denominations of all Certificates) in
the
amount to be distributed to Certificateholders on such Payment
Date.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Payment Account that have been
released from the Lien of the Indenture for payment hereunder and that neither
the Owner Trustee in its individual capacity nor the Depositor is personally
liable to the Certificateholders for any amount payable under this Certificate
or the Trust Agreement or, except as expressly provided in the Trust Agreement,
subject to any liability under the Trust Agreement.
The
Holder of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Bondholders as described in the Indenture, dated as of _________, ____,
between the Trust and __________________________________, as Indenture Trustee
(the “Indenture”).
It
is the
intent of the Depositor and the Certificateholders that, for purposes of federal
income, state and local income and single business tax and any other income
taxes, the Trust will be treated as a corporation. The Depositor and each
Certificateholder, by acceptance of a Certificate, agree to treat, and to take
no action inconsistent with the treatment of, the Certificates for such tax
purposes as an equity interest in a corporation.
Each
Certificateholder, by its acceptance of a Certificate, covenants and agrees
that
such Certificateholder will not at any time institute against the Depositor,
or
join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Certificates, the Bonds,
the
Trust Agreement or any of the Basic Documents.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Certificate Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust in the
__________________________________.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
[NATIONAL
CITY MORTGAGE CAPITAL LLC [MORTGAGE] LOAN TRUST]____-__
By:_______________________________________
not
in
its individual capacity but solely as Owner Trustee
Dated:_____________________________________
_____________________________________
Authorized
Signatory
Certificate
of Authentication
This
is
one of the Certificates referred to in the within mentioned Trust
Agreement.
______________________________,
not
in
its individual capacity
but
solely as Owner Trustee
By:___________________________________________
Authorized
Signatory
or
__________________________________________,
as
Authenticating Agent of the Trust
By:___________________________________________
Authorized
Signatory
[REVERSE
OF CERTIFICATE]
The
Certificates do not represent an obligation of, or an interest in, the
Depositor, the Seller, the Servicer, the Indenture Trustee, the Owner Trustee
or
any Affiliates of any of them and no recourse may be had against such parties
or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in
right
of payment to certain collections and recoveries with respect to the Mortgage
Collateral, all as more specifically set forth herein. A copy of the Trust
Agreement may be examined by any Certificateholder upon written request during
normal business hours at the principal office of the Depositor and at such
other
places, if any, designated by the Depositor.
The
Trust
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by the consent of the Credit Enhancer and an Opinion
of
Counsel to the Owner Trustee to the effect that such amendment complies with
the
provisions of the Trust Agreement and will not cause the Trust to be subject
to
an entity level tax. If the purpose of the amendment is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered, it shall not be necessary to obtain the consent of any Holder, but
the
Owner Trustee shall be furnished with a letter from the Rating Agencies that
the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Security. If the purpose of the amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of the any Holder,
but the Owner Trustee shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and
is
not materially adverse to any Holder. If the purpose of the amendment is to
add
or eliminate or change any provision of the Trust Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a)
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Security or (b)
the
consent of Holders of the Certificates evidencing a majority of the Percentage
Interests of the Certificates and the Indenture Trustee; PROVIDED,
HOWEVER,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the time
of, payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder, or (ii) reduce the
aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such
Certificates then outstanding.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
offices or agencies of the Certificate Registrar maintained by the Trust in
the
_______________________, accompanied by a written instrument of transfer in
form
satisfactory to the Certificate Registrar duly executed by the Holder hereof
or
such Holder’s attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is
__________________________________.
Except
as
provided in the Trust Agreement, the Certificates are issuable only in minimum
denominations of $______ and in integral multiples of $______ in excess thereof,
except for one Certificate that may not be in an integral multiple of $______.
As provided in the Trust Agreement and subject to certain limitations therein
set forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The
obligations and responsibilities created by the Trust Agreement and the Trust
created thereby shall terminate (i) upon the final distribution of all moneys
or
other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and the Trust Agreement, (ii) the Payment Date in
____________, or (iii) upon the bankruptcy or insolvency of the Holder of the
Designated Certificate and the satisfaction of other conditions specified in
Section 8.02 of the Trust Agreement.
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers
unto __________
_________________________________________________________
(Please
insert social security or other identifying number of assignee)
_________________________________________________________
(Please
print or type name and address, including postal zip code, of
assignee)
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing_______________________________________________ to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
Signature
Guaranteed:_______________________________*/.
*/
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial
bank
or trust company.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
Distribution
shall be made by wire transfer in immediately available funds to
__________________________________________________________________for the
account of __________________________________________________, account number
______________, or, if mailed by check, to ______________.
Applicable
statements should be mailed to__________________.
Signature
of assignee or agent (for authorization of wire transfer only)
EXHIBIT
B
TO
THE
TRUST AGREEMENT
CERTIFICATE
OF TRUST OF
[National
City Mortgage Capital LLC [Mortgage] Loan Trust]____-___
THIS
Certificate of Trust of [National
City Mortgage Capital LLC [Mortgage] Loan Trust]____-__
(the “Trust”), dated ___________, ____, is being duly executed and filed by
______________________, a Delaware banking corporation, as trustee, to form
a
business trust under the Delaware Business Trust Act (12 Del. Code, ss. 3801
et
seq.).
1.
Name.
The
name of the business trust formed hereby is [National
City Mortgage Capital LLC [Mortgage] Loan Trust] __________-___.
2.
Delaware
Trustee. The name and business address of the trustee of the Trust in the State
of Delaware is ______________________, __________________, __________,
______________, Attention: ______________________________.
IN
WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust as of the date first above
written.
| , | |||
|
not
in its individual capacity but solely as owner
trustee under a Trust Agreement dated ___________ as of _________,
____,
|
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|
By: __________________________
Name:
Title:
|
EXHIBIT
C
[FORM
OF
RULE 144A INVESTMENT REPRESENTATION]
Description
of Rule 144A Securities, including numbers:
The
undersigned seller, as registered holder (the “Seller”), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1.
In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or other disposition
of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to
the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Rule 144A
Securities under the Securities Act of 1933, as amended (the “1933 Act”), or
that would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, and that
the
Seller has not offered the Rule 144A Securities to any person other than the
Buyer or another “qualified institutional buyer” as defined in Rule 144A under
the ▇▇▇▇ ▇▇▇.
2. The
Buyer
warrants and represents to, and covenants with, the Owner Trustee and the
Depositor (as defined in the Trust Agreement (the “Agreement”), dated as of
_________, ____ between National
City Mortgage Capital LLC,
as
Depositor and ______________________, as Owner Trustee pursuant to Section
3.05
of the Agreement and __________________________________ as indenture trustee,
as
follows:
(a) The
Buyer
understands that the Rule 144A Securities have not been registered under the
1933 Act or the securities laws of any state.
(b) The
Buyer
considers itself a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters that it is capable
of
evaluating the merits and risks of investment in the Rule 144A
Securities.
(c) The
Buyer
has been furnished with all information regarding the Rule 144A Securities
that
it has requested from the Seller, the Indenture Trustee, the Owner Trustee
or
the Servicer.
(d) Neither
the Buyer nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Rule 144A Securities, any interest in the
Rule
144A Securities or any other similar security to, or solicited any offer to
buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security from,
or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the 1933 Act or
that
would render the disposition of the Rule 144A Securities a violation of Section
5 of the 1933 Act or require registration pursuant thereto, nor will it act,
nor
has it authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
(e) The
Buyer
is a “qualified institutional buyer” as that term is defined in Rule 144A under
the 1933 Act and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale
to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule
144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3.
[The
Buyer warrants and represents to, and covenants with, the Seller, the Indenture
Trustee, Owner Trustee, Servicer and the Depositor that either (1) the Buyer
is
(A) not an employee benefit plan (within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), or a
plan (within the meaning of Section 4975(e)(1) of the Internal Revenue Code
of
1986 (“Code”)), which (in either case) is subject to ERISA or Section 4975 of
the Code (both a “Plan”), and (B) is not directly or indirectly purchasing the
Rule 144A Securities on behalf of, as investment manager of, as named fiduciary
of, as trustee of, or with “plan assets” of a Plan, or (2) the Buyer understands
that registration of transfer of any Rule 144A Securities to any Plan, or to
any
Person acting on behalf of any Plan, will not be made unless such Plan delivers
an opinion of its counsel, addressed and satisfactory to the Certificate
Registrar and the Depositor, to the effect that the purchase and holding of
the
Rule 144A Securities by, on behalf of or with “plan assets” of any Plan would
not constitute or result in a prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code, and would not subject the Depositor, the Servicer,
the Indenture Trustee or the Trust to any obligation or liability (including
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Agreement or any other liability.]
4.
This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
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Print
Name of Seller
|
Print
Name of Buyer
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By:
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By:
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Name:
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Name:
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|
Title:
|
Title:
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Taxpayer
Identification No.
|
Taxpayer
Identification No.
|
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| Date: | Date: | |||
ANNEX
1
TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers other than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $______________________ in securities (except for the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii) the Buyer
satisfies the criteria in the category marked below.
|
___
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CORPORATION,
ETC. The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue
Code.
|
|
___
|
BANK.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised by
the
State or territorial banking commission or similar official or is
a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached
hereto.
|
------------------
Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
|
___
|
SAVINGS
AND LOAN. The Buyer (a) is a savings and loan association, building
and
loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements.
|
|
___
|
BROKER-DEALER.
The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
___
|
INSURANCE
COMPANY. The Buyer is an insurance company whose primary and predominant
business activity is the writing of insurance or the reinsuring of
risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State
or
territory or the District of
Columbia.
|
|
___
|
STATE
OR LOCAL PLAN. The Buyer is a plan established and maintained by
a State,
its political subdivisions, or any agency or instrumentality of the
State
or its political subdivisions, for the benefit of its
employees.
|
|
___
|
ERISA
PLAN. The Buyer is an employee benefit plan within the meaning of
Title I
of the Employee Retirement Income Security Act of
1974.
|
|
___
|
INVESTMENT
ADVISER. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940.
|
|
___
|
SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S.
Small Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958.
|
|
___
|
BUSINESS
DEVELOPMENT COMPANY. The Buyer is a business development company
as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940.
|
|
___
|
TRUST
FUND. The Buyer is a trust fund whose trustee is a bank or trust
company
and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency
or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning
of Title I of the Employee Retirement Income Security Act of 1974,
but is
not a trust fund that includes as participants individual retirement
accounts or H.R. 10 plans.
|
3. The
term
“Securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer, (ii) securities that are part of an unsold allotment to or subscription
by the Buyer, if the Buyer is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
|
1.
|
The
Buyer acknowledges that it is familiar with Rule 144A and understands
that
the seller to it and other parties related to the Certificates are
relying
and will continue to rely on the statements made herein because one
or
more sales to the Buyer may be in reliance on Rule 144A.
|
___
___ Will the Buyer be purchasing the Rule 144A
Yes
No Securities only for the Buyer’s own account?
|
2.
|
If
the answer to the foregoing question is “no”, the Buyer agrees that, in
connection with any purchase of securities sold to the Buyer for
the
account of a third party (including any separate account) in reliance
on
Rule 144A, the Buyer will only purchase for the account of a third
party
that at the time is a “qualified institutional buyer” within the meaning
of Rule 144A. In addition, the Buyer agrees that the Buyer will not
purchase securities for a third party unless the Buyer has obtained
a
current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such
third
party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
|
|
3.
|
The
Buyer will notify each of the parties to which this certification
is made
of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of
such
purchase.
|
___________________________________
Print
Name of Buyer
By:
_______________________________
Name:
Title:
Date:_______________________________
ANNEX
2
TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer’s Family of Investment Companies, owned at
least $100,000,000 in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer’s Family of
Investment Companies, the cost of such securities was used.
|
____
|
The
Buyer owned $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer’s most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
|
|
____
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer’s most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
|
3. The
term
“Family of Investment Companies” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The
term
“securities” as used herein does not include (i) securities of issuers that are
affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but subject
to
a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5.
The
Buyer
is familiar with Rule 144A and understands that each of the parties to which
this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer’s
own account.
6. The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer’s purchase of Rule 144A Securities will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
| Print Name of Buyer | ||
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By:
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|
Name:
|
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Title:
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IF
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EXHIBIT
D
CERTIFICATE
OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status (“certificate”) is delivered pursuant to
Section 3.03 of the Trust Agreement, dated as of _________, ____ (the “Trust
Agreement”), between National
City Mortgage Capital LLC,
as
depositor and ______________________, as Owner Trustee, in connection with
the
acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner (the “Beneficial Owner”), or nominee on behalf of the
Beneficial Owner of the [National
City Mortgage Capital LLC [Mortgage] Loan Trust], Series 20__-____
(the
“Certificates”). Capitalized terms used but not defined in this certificate have
the respective meanings given them in the Trust Agreement.
Each
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III. In addition, each holder shall
submit with the Certificate an IRS Form W-9 relating to such
holder.
To
confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do
not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
Part
I
- Complete
Either A or B
A. Individual
as Beneficial Owner
1. I
am (The
Beneficial Owner is) not a non-resident alien for purposes of U.S. income
taxation;
2.
My
(The
Beneficial Owner’s) name and home address are:
;
and
3. My
(The
Beneficial Owner’s) U.S. taxpayer identification number (Social Security Number)
is __________________.
B. Corporate,
Partnership or Other Entity as Beneficial Owner
1. ____________________
(Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are defined in
the
Code and Treasury Regulations;
2. The
Beneficial Owner’s office address and place of incorporation (if applicable) is
______________________________________; and
3. The
Beneficial Owner’s U.S. employer identification number is
____________.
Part
II -
Nominees
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained
in:
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_____
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an
IRS Form W-9
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_____
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a
form such as this or substantially similar provided to the undersigned
by
an appropriate person and (i) the undersigned agrees to notify the
Trust
at least thirty (30) days prior to the date that the form relied
upon
becomes obsolete, and (ii) in connection with change in Beneficial
Owners,
the undersigned agrees to submit a new Certificate of Non-Foreign
Status
to the Trust promptly after such
change.
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Part
III
- Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Trust within sixty (60) days of the date that the Beneficial Owner becomes
a
foreign person. The undersigned understands that this certificate may be
disclosed to the Internal Revenue Service by the Trust and any false statement
contained therein could be punishable by fines, imprisonment or
both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Trust of any change in the information
provided above, and, if applicable, I further declare that I have the authority*
to sign this document.
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Name
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Title
(if applicable)
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Signature
and Date
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*Note:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
EXHIBIT
E
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
[Certificate
Registrar]
Re: [National
City Mortgage Capital LLC [Mortgage] Loan Trust], Series 20__-____
Mortgage-Backed
Notes, Series, ___- __(the “Certificates”)
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Trust Agreement.
Very
truly yours,
[TRANSFEREE]
By:____________________________
Authorized
Officer