DEUTSCHE MORTGAGE SECURITIES, INC. TRUST SERIES ____-__ Issuing Entity AND [NAME OF INDENTURE TRUSTEE] Indenture Trustee INDENTURE Dated as of ________________ ASSET-BACKED NOTES
EXHIBIT
4.4
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
Issuing
Entity
AND
[NAME
OF
INDENTURE TRUSTEE]
Indenture
Trustee
Dated
as
of ________________
__________________________________________
ASSET-BACKED
NOTES
_____________
TABLE
OF
CONTENTS
SECTION
|
PAGE
|
ARTICLE
I
|
||
Definitions
|
||
Section
1.01
|
Definitions
|
1
|
Section
1.02
|
Incorporation
by Reference of Trust Indenture Act
|
2
|
Section
1.03
|
Rules
of Construction
|
2
|
ARTICLE
II
|
||
Original
Issuance of Notes
|
||
Section
2.01
|
Form
|
2
|
Section
2.02
|
Execution,
Authentication and Delivery
|
3
|
ARTICLE
III
|
||
Covenants
|
||
Section
3.01
|
Collection
of Payments With Respect to Loans
|
3
|
Section
3.02
|
Maintenance
of Office or Agency
|
4
|
Section
3.03
|
Money
For Payments to be Held in Trust; Paying Agent
|
4
|
Section
3.04
|
Existence
|
5
|
Section
3.05
|
Payment
of Principal and Interest; Defaulted Interest
|
5
|
Section
3.06
|
Protection
of Trust Estate
|
8
|
Section
3.07
|
Opinions
as to Trust Estate
|
9
|
Section
3.08
|
Performance
of Obligations; Servicing Agreement
|
10
|
Section
3.09
|
Negative
Covenants
|
10
|
Section
3.10
|
Annual
Statement as to Compliance
|
11
|
Section
3.11
|
Representations
and Warranties Concerning the Loans
|
11
|
Section
3.12
|
Assignee
of Record of the Loans
|
11
|
Section
3.13
|
Investment
Company Act
|
11
|
Section
3.14
|
Servicer
as Agent and Bailee of the Indenture Trustee
|
12
|
Section
3.15
|
Issuing
Entity May Consolidate, Etc
|
12
|
Section
3.16
|
Successor
or Transferee
|
13
|
Section
3.17
|
No
Other Business
|
14
|
Section
3.18
|
No
Borrowing
|
14
|
Section
3.19
|
Guarantees,
Loans, Advances and Other Liabilities
|
14
|
Section
3.20
|
Capital
Expenditures
|
14
|
Section
3.21
|
Owner
Trustee Not Liable for Certificates or Related Documents
|
14
|
Section
3.22
|
Restricted
Payments
|
14
|
Section
3.23
|
Notice
of Events of Default
|
15
|
Section
3.24
|
Further
Instruments and Acts
|
15
|
Section
3.25
|
Statements
to Noteholders
|
15
|
Section
3.26
|
Allocation
of Realized Losses
|
15
|
Section
3.27
|
Determination
of the Libor Rate
|
15
|
Section
3.28
|
Liquidation
on Final Maturity Date
|
16
|
Section
3.29
|
No
Recourse
|
16
|
ARTICLE
IV
|
||
The
Notes; Satisfaction and Discharge of Indenture
|
||
Section
4.01
|
The
Notes
|
16
|
Section
4.02
|
Registration
of and Limitations on Transfer and Exchange of Notes; Appointment
of
Certificate Registrar
|
17
|
Section
4.03
|
Mutilated,
Destroyed, Lost or Stolen Notes
|
19
|
Section
4.04
|
Persons
Deemed Owners
|
20
|
Section
4.05
|
Cancellation
|
20
|
Section
4.06
|
Book-Entry
Notes
|
20
|
Section
4.07
|
Notices
to Depository
|
21
|
Section
4.08
|
Definitive
Notes
|
21
|
Section
4.09
|
Tax
Treatment
|
21
|
Section
4.10
|
Satisfaction
and Discharge of Indenture
|
22
|
Section
4.11
|
Application
of Trust Money
|
23
|
Section
4.12
|
[RESERVED]
|
23
|
Section
4.13
|
Repayment
of Monies Held by Paying Agent
|
23
|
Section
4.14
|
Temporary
Notes
|
23
|
ARTICLE
V
|
||
Default
and Remedies
|
||
Section
5.01
|
Events
of Default
|
24
|
Section
5.02
|
Acceleration
of Maturity; Rescission and Annulment
|
24
|
Section
5.03
|
Collection
of Indebtedness and Suits for Enforcement by Indenture
Trustee.
|
25
|
Section
5.04
|
Remedies;
Priorities
|
27
|
Section
5.05
|
Optional
Preservation of the Trust Estate
|
28
|
Section
5.06
|
Limitation
of Suits
|
28
|
Section
5.07
|
Unconditional
Rights of Noteholders to Receive Principal and Interest
|
29
|
Section
5.08
|
Restoration
of Rights and Remedies
|
29
|
Section
5.09
|
Rights
and Remedies Cumulative
|
29
|
Section
5.10
|
Delay
or Omission not a Waiver
|
30
|
Section
5.11
|
Control
by Noteholders
|
30
|
Section
5.12
|
Waiver
of Past Defaults
|
30
|
Section
5.13
|
Undertaking
for Costs
|
31
|
Section
5.14
|
Waiver
of Stay or Extension Laws
|
31
|
Section
5.15
|
Sale
of Trust Estate
|
31
|
Section
5.16
|
Action
on Notes
|
32
|
ii
ARTICLE
VI
|
||
The
Indenture Trustee
|
||
Section
6.01
|
Duties
of Indenture Trustee
|
33
|
Section
6.02
|
Rights
of Indenture Trustee
|
34
|
Section
6.03
|
Individual
Rights of Indenture Trustee
|
34
|
Section
6.04
|
Indenture
Trustee's Disclaimer
|
34
|
Section
6.05
|
Notice
of Event Of Default
|
35
|
Section
6.06
|
Reports
by Indenture Trustee to Holders
|
35
|
Section
6.07
|
Compensation
and Indemnity
|
35
|
Section
6.08
|
Replacement
of Indenture Trustee
|
35
|
Section
6.09
|
Successor
Indenture Trustee by Xxxxxx
|
36
|
Section
6.10
|
Appointment
of Co-Indenture Trustee or Separate Indenture Trustee
|
37
|
Section
6.11
|
Eligibility;
Disqualification
|
38
|
Section
6.12
|
Preferential
Collection of Claims Against Issuing Entity
|
38
|
Section
6.13
|
Representations
and Warranties
|
38
|
Section
6.14
|
Directions
to Indenture Trustee
|
39
|
Section
6.15
|
Indenture
Trustee May Own Securities
|
39
|
Section
6.16
|
Compliance
with Withholding Requirements
|
39
|
ARTICLE
VII
|
||
Noteholders'
Lists and Reports
|
||
Section
7.01
|
Issuing
Entity To Furnish Indenture Trustee Names and Addresses of
Noteholders
|
39
|
Section
7.02
|
Preservation
of Information; Communications to Noteholders
|
40
|
Section
7.03
|
Reports
by Issuing Entity
|
40
|
Section
7.04
|
Reports
by Indenture Trustee
|
40
|
Section
7.05
|
Reports
Filed with Securities and Exchange Commission.
|
41
|
ARTICLE
VIII
|
||
Accounts,
Disbursements and Releases
|
||
Section
8.01
|
Collection
of Money
|
43
|
Section
8.02
|
Trust
Accounts
|
44
|
Section
8.03
|
Officer's
Certificate
|
44
|
Section
8.04
|
Termination
Upon Payment to Noteholders
|
44
|
Section
8.05
|
Release
of Trust Estate
|
44
|
Section
8.06
|
Surrender
of Notes Upon Final Payment
|
45
|
ARTICLE
IX
|
||
Supplemental
Indentures
|
||
iii
Section
9.01
|
Supplemental
Indentures Without Consent of Noteholders
|
45
|
Section
9.02
|
Supplemental
Indentures with Consent of Noteholders
|
47
|
Section
9.03
|
Execution
of Supplemental Indentures
|
48
|
Section
9.04
|
Effect
of Supplemental Indenture
|
48
|
Section
9.05
|
Conformity
with Trust Indenture Act
|
48
|
Section
9.06
|
Reference
in Notes to Supplemental Indentures
|
49
|
ARTICLE
X
|
||
Section
10.01
|
Compliance
Certificates and Opinions, Etc
|
49
|
Section
10.02
|
Form
of Documents Delivered to Indenture Trustee
|
51
|
Section
10.03
|
Acts
of Noteholders
|
51
|
Section
10.04
|
Notices,
Etc., to Indenture Trustee, Issuing Entity and Rating
Agencies
|
52
|
Section
10.05
|
Notices
to Noteholders; Waiver
|
52
|
Section
10.06
|
Alternate
Payment and Notice Provisions
|
53
|
Section
10.07
|
Conflict
with Trust Indenture Act
|
53
|
Section
10.08
|
Effect
of Headings
|
53
|
Section
10.09
|
Successors
and Assigns
|
53
|
Section
10.10
|
Separability
|
53
|
Section
10.11
|
Benefits
of Indenture
|
54
|
Section
10.12
|
Legal
Holidays
|
54
|
Section
10.13
|
GOVERNING
LAW
|
54
|
Section
10.14
|
Counterparts
|
54
|
Section
10.15
|
Recording
of Indenture
|
54
|
Section
10.16
|
Issuing
Entity Obligation
|
54
|
Section
10.17
|
No
Petition
|
55
|
Section
10.18
|
Inspection
|
55
|
iv
EXHIBITS
Exhibit
A-1
|
Form
of Class A Notes
|
Exhibit
A-2
|
Form
of Class M Notes
|
Exhibit
A-3
|
Form
of Class B Notes
|
Exhibit
C
|
Form
of Rule 144A Investment Representation
|
Exhibit
D
|
Form
of Investor Representation Letter
|
Exhibit
E
|
Form
of Transferor Representation Letter
|
Appendix
A
|
Definitions
|
v
This
Indenture, dated as of ____________________, between Deutsche Mortgage
Securities, Inc. Trust Series ____- __, a Delaware business trust, as Issuing
Entity (the “Issuing Entity”), and [Name of Indenture Trustee], as Indenture
Trustee (the “Indenture Trustee”),
Each
party hereto agrees as follows for the benefit of the other party and for
the
equal and ratable benefit of the Holders of the Issuing Entity's Series ____-__
Asset-Backed Notes, Class A, Class M-1, Class M-2, Class B-1 and Class B-2
(collectively, the “Notes”).
The
Issuing Entity hereby Grants to the Indenture Trustee at the Closing Date,
as
trustee for the benefit of the Holders of each Class of Notes, all of the
Issuing Entity's right, title and interest in, to and under, whether now
existing or hereafter created, (i) the Loans and all payments and other
collections in respect of the Loans received or due after the Cut-off Date,
(ii)
the Loan Purchase Agreements, (iii) any real property acquired on behalf
of the
Issuing Entity, (iv) such funds as from time to time are deposited in the
in the
Payment Account and in all proceeds thereof; and (v) all present and future
claims, demands, causes and choses in action in respect of any or all of
the
foregoing and all payments on or under, and all proceeds of every kind and
nature whatsoever in respect of, any or all of the foregoing and all payments
on
or under, and all proceeds of every kind and nature whatsoever in the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all
cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, checks,
deposit accounts, rights to payment of any and every kind, and other forms
of
obligations and receivables, instruments and other property which at any
time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the “Trust Estate” or the “Collateral”).
The
foregoing Grant is made in trust to secure the payment of principal of and
interest on, and any other amounts owing in respect of, the Notes, equally
and
ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this
Indenture.
The
Indenture Trustee, as trustee on behalf of the Holders of the Notes,
acknowledges such Xxxxx, accepts the trust under this Indenture in accordance
with the provisions hereof and agrees to perform its duties as Indenture
Trustee
as required herein.
ARTICLE
I
Definitions
Section
1.01 Definitions.
For all
purposes of this Indenture, 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 Definitions
attached hereto as Appendix A which is incorporated by reference herein.
All
other capitalized terms used herein shall have the meanings specified
herein.
Section
1.02 Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act
(the
“TIA”), the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
“Commission”
means the Securities and Exchange Commission.
“indenture
securities” means the Notes.
“indenture
security holder” means a Noteholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Indenture Trustee.
“obligor”
on the indenture securities means the Issuing Entity and any other obligor
on
the indenture securities.
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by
TIA
reference to another statute or defined by Commission rule have the meaning
assigned to them by such definitions.
Section
1.03 Rules
of Construction.
Unless
the context otherwise requires:
(i) a
term
has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles as in effect from
time
to time;
(iii) “or”
is
not exclusive;
(iv) “including”
means
including without limitation;
(v) words
in
the singular include the plural and words in the plural include the singular;
and
(vi) 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
Original
Issuance of Notes
Section
2.01 Form.
The
Notes, together with the Indenture Trustee's certificate of authentication,
shall be in substantially the form set forth in Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required
or
permitted by this Indenture and may have such letters, numbers or other marks
of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes,
as
evidenced by their execution of the Notes. Any portion of the text of any
Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
2
The
Notes
shall be typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders), all
as
determined by the Authorized Officers executing such Notes, as evidenced
by
their execution of such Notes.
The
terms
of the Notes set forth in Exhibits A-1, A-2 and A-3 are part of the terms
of
this Indenture.
Section
2.02 Execution,
Authentication and Delivery.
The
Notes shall be executed on behalf of the Issuing Entity by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
Notes
bearing the manual or facsimile signature of individuals who were at any
time
Authorized Officers of the Issuing Entity shall bind the Issuing Entity,
notwithstanding that such individuals or any of them have ceased to hold
such
offices prior to the authentication and delivery of such Notes or did not
hold
such offices at the date of such Notes.
The
Indenture Trustee shall upon Issuing Entity Request authenticate and deliver
Notes for original issue in an aggregate initial principal amount of
$_________.
Each
Class of Notes shall be dated the date of its authentication. The Book-Entry
Notes shall be issuable in book-entry format and shall be issuable in the
minimum initial Note Balances of $25,000 and in integral multiples of $1
in
excess thereof. The Physical Notes will be evidenced by a physical, fully
registered Note transferable through the facilities of the Note Registrar
and
shall be issuable in the minimum initial Note Balances of $25,000 and in
integral multiples of $1 in excess thereof.
No
Note
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose, unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by
the
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Note shall be conclusive evidence, and the
only
evidence, that such Note has been duly authenticated and delivered
hereunder.
ARTICLE
III
Covenants
Section
3.01 Collection
of Payments With Respect to Loans.
The
Indenture Trustee shall establish and maintain with itself the Payments Account
in which the Indenture Trustee shall, subject to the terms of this paragraph,
deposit, on the same day as it is received from the Servicer, each remittance
received by the Indenture Trustee with respect to the Loans. The Indenture
Trustee shall make all payments of principal and interest on the Notes, subject
to Section 3.03, as provided in Section 3.05 herein from monies on deposit
in
the Payment Account.
3
Section
3.02 Maintenance
of Office or Agency.
The
Issuing Entity will maintain in the City of New York, an office or agency
where,
subject to satisfaction of conditions set forth herein, Notes may be surrendered
for registration of transfer or exchange, and where notices and demands to
or
upon the Issuing Entity in respect of the Notes and this Indenture may be
served. The Issuing Entity hereby initially appoints the Indenture Trustee
to
serve as its agent for the foregoing purposes. If at any time the Issuing
Entity
shall fail to maintain any such office or agency or shall fail to furnish
the
Indenture Trustee with the address thereof, such surrenders, notices and
demands
may be made or served at the Corporate Trust Office, and the Issuing Entity
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
Section
3.03 Money
For Payments to be Held in Trust; Paying Agent.
a)
As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Payment
Account
pursuant to Section 3.01 shall be made on behalf of the Issuing Entity by
the
Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from
the
Payment Account for payments of Notes shall be paid over to the Issuing Entity
except as provided in this Section 3.03.
The
Issuing Entity will cause each Paying Agent other than the Indenture Trustee
to
execute and deliver to the Indenture Trustee an instrument in which such
Paying
Agent shall agree with the Indenture Trustee (and if the Indenture Trustee
acts
as Paying Agent it hereby so agrees), subject to the provisions of this Section
3.03, that such Paying Agent will:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Notes
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 and pay
such
sums to such Persons as herein provided;
(ii) give
the
Indenture Trustee written notice of any default by the Issuing Entity of
which
it has actual knowledge in the making of any payment required to be made
with
respect to the Notes;
(iii) at
any
time during the continuance of any such default, upon the written request
of the
Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held
in
trust by such Paying Agent;
(iv) immediately
resign as Paying Agent and forthwith pay to the Indenture Trustee all sums
held
by it in trust for the payment of Notes if at any time it ceases to meet
the
standards required to be met by a 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 Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in connection
therewith; and
4
(vi) deliver
to the Indenture Trustee a copy of the report to Noteholders prepared with
respect to each Payment Date by the Servicer pursuant to Section 4.01 of
the
Servicing Agreement.
The
Issuing Entity may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuing Entity
Request direct any Paying Agent to pay to the Indenture Trustee all sums
held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee
upon
the same trusts as those upon which the sums were held by such Paying Agent;
and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Subject
to applicable laws with respect to escheat of funds, any money held by the
Indenture Trustee or any Paying Agent in trust for the payment of any amount
due
with respect to any Note and remaining unclaimed for one year after such
amount
has become due and payable shall be discharged from such trust and be paid
to
the Issuing Entity on Issuing Entity Request; and the Holder of such Note
shall
thereafter, as an unsecured general creditor, look only to the Issuing Entity
for payment thereof (but only to the extent of the amounts so paid to the
Issuing Entity), and all liability of the Indenture Trustee or such Paying
Agent
with respect to such trust money shall thereupon cease; provided, however,
that
the Indenture Trustee or such Paying Agent, before being required to make
any
such repayment, shall at the expense and direction of the Issuing Entity
cause
to be published once, in an Authorized Newspaper, notice that such money
remains
unclaimed and that, after a date specified therein, which shall not be less
than
30 days from the date of such publication, any unclaimed balance of such
money
then remaining will be repaid to the Issuing Entity. The Indenture Trustee
may
also adopt and employ, at the expense and direction of the Issuing Entity,
any
other reasonable means of notification of such repayment (including, but
not
limited to, mailing notice of such repayment to Holders whose Notes have
been
called but have not been surrendered for redemption or whose right to or
interest in monies due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address
of
record for each such Holder).
Section
3.04 Existence.
The
Issuing Entity will keep in full effect its existence, rights and franchises
as
a business trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuing Entity hereunder is or becomes, organized under the
laws
of any other state or of the United States of America, in which case the
Issuing
Entity will keep in full effect its existence, rights and franchises under
the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this Indenture, the
Notes and each other instrument or agreement included in the Trust
Estate.
Section
3.05 Payment
of Principal and Interest; Defaulted Interest.
b)
On each
Payment Date from amounts on deposit in the Payment Account the Paying Agent
shall pay to the Noteholders, the Certificate Paying Agent, on behalf of
the
Certificateholders, and to other Persons the Interest Remittance Amount and
Principal Payment Amount, as set forth in the statements delivered to the
Indenture Trustee pursuant to Section 4.01 of the Servicing Agreement, in
the
order of priority set forth in this Section 3.05.
5
(b) On
each
Payment Date, the Remittance Amount shall be distributed in the following
priority, in each case to the extent of the then remaining Remittance
Amount:
(i) first,
to
the Class A Notes, Current Interest and any Carryforward Interest for each
such
Payment Date;
(ii) second,
to the Class M-1 Notes, Current Interest and any Carryforward Interest for
such
class and such Payment Date;
(iii) third,
to
the Class M-2 Notes, Current Interest and any Carryforward Interest for such
class and such Payment Date;
(iv) fourth,
to the Class B-1 Notes, Current Interest and any Carryforward Interest for
such
class and such Payment Date; and
(v) fifth,
to
the Class B-2 Notes, Current Interest and any Carryforward Interest for such
class and such Payment Date.
(c) On
each
Payment Date, prior to the Stepdown Date, the remaining Remittance Amount
after
payments made pursuant to Section 3.01(b) above, not to exceed the Principal
Payment Amount, shall be distributed in the following order of
priority:
(i) first,
to
the Class A Notes, until their Class Principal Balance of the Class A Notes
has
been reduced to zero;
(ii) second,
to the Class M-1 Notes, until the Class Principal Balance of the Class M-1
Notes
has been reduced to zero;
(iii) third,
to
the Class M-2 Notes, until the Class Principal Balance of the Class M-2 Notes
has been reduced to zero;
(iv) fourth,
to the Class B-1 Notes, until the Class Principal Balance of the Class B-1
Notes
has been reduced to zero; and
(v) fifth,
to
the Class B-2 Notes, until the Class Principal Balance of the Class B-2 Notes
has been reduced to zero.
(d) On
each
Payment Date, on or after the Stepdown Date, the remaining Remittance Amount
after payments made pursuant to Section 3.01(b) and (c) above, not to exceed
the
Principal Payment Amount, shall be distributed in the following order of
priority:
(i) first,
to
the Class A Notes, the Senior Principal Payment Amount for such payment date,
until the Class Principal Balance of the Class A Notes has been reduced to
zero;
(ii) second,
to the Class M-1 Notes, the Class M-1 Principal Payment Amount for such payment
date, until the Class Principal Balance of such Class has been reduced to
zero;
6
(iii) third,
to
the Class M-2 Notes, the Class M-2 Principal Payment Amount for such payment
date, until the Class Principal Balance of such Class has been reduced to
zero;
(iv) fourth,
to the Class B-1 Notes, the Class B-1 Principal Payment Amount for such payment
date, until the Class Principal Balance of such Class has been reduced to
zero;
and
(v) fifth,
to
the Class B-2 Notes, the Class B-2 Principal Payment Amount for such payment
date, until the Class Principal Balance of such Class has been reduced to
zero.
(e) On
each
Payment Date, the Monthly Excess Cashflow shall be distributed in the following
order of priority:
(i) (1)
on each
Payment Date prior to the Stepdown Date, until the aggregate Class Principal
Balance of the Notes equals the Aggregate Loan Balance for such Payment Date
minus the Targeted Overcollateralization Amount for such date, in the following
order of priority:
(1)
first, to the Class A Notes until the Class Principal Balance has been reduced
to zero;
(2)
second, to the Class M-1 Notes, until the Class Principal Balance of such
Class
has been reduced to zero;
(3)
third, to the Class M-2 Notes, until the Class Principal Balance of such
Class
has been reduced to zero;
(4)
fourth, to the Class B-1 Notes, until the Class Principal Balance of such
Class
has been reduced to zero; and
(5)
fifth, to the Class B-2 Notes, until the Class Principal Balance of such
Class
has been reduced to zero.
(B) On
each
Payment Date on or after the Stepdown Date, to make any principal payments
required to be made on such payment date pursuant to Section 3.05(d), after
giving effect to the payment of the Principal Payment Amount for such date,
in
accordance with the priorities set forth therein but without regard to the
limitation of such payments in the aggregate to the Principal Payment
Amount;
(ii) to
the
Class M-1 Notes, any Deferred Amount for such class;
(iii) to
the
Class M-2 Notes, any Deferred Amount for such class;
(iv) to
the
Class B-1 Notes, any Deferred Amount for such class;
7
(v) to
the
Class B-2 Notes, any Deferred Amount for such class;
(vi) to
the
Class A Notes, any applicable Basis Risk Shortfall for each class;
(vii) to
the
Class M-2 Notes, any applicable Basis Risk Shortfall for such
class;
(viii) to
the
Class B-1 Notes, any applicable Basis Risk Shortfall for such
class;
(ix) to
the
Class B-2 Notes, any Available Funds Shortfall for such class;
(x) to
the
Indenture Trustee, any Trustee Additional Expenses and any amounts owing
to the
Indenture Trustee pursuant to Section 6.07 and the Owner Trustee pursuant
to
Article VII of the Trust Agreement, in each case remaining unpaid;
and
(xi) to
the
Certificate Paying Agent, all remaining Remittance Amounts.
(f) On
each
Payment Date, the Certificate Paying Agent shall deposit in the Certificate
Distribution Account all amounts it received pursuant to this Section 3.05
for
the purpose of reimbursing the Owner Trustee with respect to certain amounts
and
distributing such funds to the Class CE Certificateholder.
(g) The
amounts paid to Noteholders shall be paid to the Notes in accordance with
the
applicable percentage as set forth in paragraph (h) below. Any installment
of
interest or principal, if any, payable on any Note that is punctually paid
or
duly provided for by the Issuing Entity on the applicable Payment Date shall,
if
such Holder holds Notes of an aggregate initial Note Balance of at least
$1,000,000, be paid to each Holder of record on the preceding Record Date,
by
wire transfer to an account specified in writing by such Holder reasonably
satisfactory to the Indenture Trustee as of the preceding Record Date or
in all
other cases or if no such instructions have been delivered to the Indenture
Trustee, by check to such Noteholder mailed to such Holder's address as it
appears in the Note Register the amount required to be distributed to such
Holder on such Payment Date pursuant to such Holder's Securities; provided,
however, that the Indenture Trustee shall not pay to such Holders any amount
required to be withheld from a payment to such Holder by the Code.
(h) The
principal of each Note shall be due and payable in full on the Final Scheduled
Payment Date for such Note as provided in the related form of Note set forth
in
Exhibits A-1, A-2 and A-3. All principal payments on the Notes shall be made
to
the Noteholders entitled thereto in accordance with the Percentage Interests
represented by such Notes. The Indenture Trustee shall notify the Person
in
whose name a Note is registered at the close of business on the Record Date
preceding the Final Scheduled Payment Date or other final Payment Date. Such
notice shall be mailed no later than five Business Days prior to such Final
Scheduled Payment Date or other final Payment Date and shall specify that
payment of the principal amount and any interest due with respect to such
Note
at the Final Scheduled Payment Date or other final Payment Date will be payable
only upon presentation and surrender of such Note and shall specify the place
where such Note may be presented and surrendered for such final
payment.
Section
3.06 Protection
of Trust Estate.
c)
As and
when requested by the Indenture Trustee, the Issuing Entity will from time
to
time execute and deliver all such supplements and amendments hereto and all
such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
8
(b) maintain
or preserve the lien and security interest (and the priority thereof) of
this
Indenture or carry out more effectively the purposes hereof;
(i) perfect,
publish notice of or protect the validity of any Grant made or to be made
by
this Indenture; or
(ii) preserve
and defend title to the Trust Estate and the rights of the Indenture Trustee
and
the Noteholders in such Trust Estate against the claims of all persons and
parties.
(c) Except
as
otherwise provided in this Indenture, the Indenture Trustee shall not remove
any
portion of the Trust Estate that consists of money or is evidenced by an
instrument, certificate or other writing from the jurisdiction in which it was
held at the date of the most recent Opinion of Counsel delivered pursuant
to
Section 3.07 (or from the jurisdiction in which it was held as described
in the
Opinion of Counsel delivered at the Closing Date pursuant to Section 3.07(a),
if
no Opinion of Counsel has yet been delivered pursuant to Section 3.07(b))
unless
the Indenture Trustee shall have first received an Opinion of Counsel to
the
effect that the lien and security interest created by this Indenture with
respect to such property will continue to be maintained after giving effect
to
such action or actions.
The
Issuing Entity hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or
other instrument required to be executed pursuant to this Section
3.06.
Section
3.07 Opinions
as to Trust Estate.
d)
On the
Closing Date, the Issuing Entity shall furnish to the Indenture Trustee and
the
Owner Trustee an Opinion of Counsel at the expense of the Issuing Entity
either
stating that, in the opinion of such counsel, such action has been taken
with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect
to the
execution and filing of any financing statements and continuation statements,
as
are necessary to perfect and make effective the lien and security interest
in
the Loans and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On
or
before December 31st in each calendar year, beginning in ____, the Issuing
Entity shall furnish to the Indenture Trustee an Opinion of Counsel at the
expense of the Issuing Entity either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental
hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the lien and security interest in the Loans and reciting the details
of
such action or stating that in the opinion of such counsel no such action
is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and the execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to maintain
the lien and security interest in the Loans until December 31 in the following
calendar year.
9
Section
3.08 Performance
of Obligations; Servicing Agreement.
(a) The
Issuing Entity will punctually perform and observe all of its obligations
and
agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Trust Estate.
(a) The
Issuing Entity may contract with other Persons to assist it in performing
its
duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuing
Entity shall be deemed to be action taken by the Issuing Entity.
(b) The
Issuing Entity will not take any action or permit any action to be taken
by
others which would release any Person from any of such Person's covenants
or
obligations under any of the documents relating to the Loans or under any
instrument included in the Trust Estate, or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any of the documents relating to the Loans
or any
such instrument, except such actions as the Servicer is expressly permitted
to
take in the Servicing Agreement.
(c) The
Issuing Entity may retain an administrator and may enter into contracts with
other Persons for the performance of the Issuing Entity's obligations hereunder,
and performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuing Entity.
Section
3.09 Negative
Covenants.
So long
as any Notes are Outstanding, the Issuing Entity shall not:
(i) except
as
expressly permitted by this Indenture, sell, transfer, exchange or otherwise
dispose of the Trust Estate, unless directed to do so by the Indenture
Trustee;
(ii) claim
any
credit on, or make any deduction from the principal or interest payable in
respect of, the Notes (other than amounts properly withheld from such payments
under the Code) or assert any claim against any present or former Noteholder
by
reason of the payment of the taxes levied or assessed upon any part of the
Trust
Estate;
(iii)
(A)
permit the validity or effectiveness of this Indenture to be impaired, or
permit
the lien of this Indenture to be amended, hypothecated, subordinated, terminated
or discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may
be
expressly permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the Trust
Estate
or any part thereof or any interest therein or the proceeds thereof or (C)
permit the lien of this Indenture not to constitute a valid first priority
security interest in the Trust Estate; or
10
(iv) waive
or
impair, or fail to assert rights under, the Loan Purchase Agreement or in
any
Basic Document, if any such action would materially and adversely affect
the
interests of the Noteholders.
Section
3.10 Annual
Statement as to Compliance.
The
Issuing Entity will deliver to the Indenture Trustee, within 120 days after
the
end of each fiscal year of the Issuing Entity (commencing with the fiscal
year
____), an Officer's Certificate stating, as to the Authorized Officer signing
such Officer's Certificate, that:
(i) a
review
of the activities of the Issuing Entity during such year and of its performance
under this Indenture and the Owner Trust Agreement has been made under such
Authorized Officer's supervision; and
(ii) to
the
best of such Authorized Officer's knowledge, based on such review, the Issuing
Entity has complied with all conditions and covenants under this Indenture
and
the provisions of the Owner Trust Agreement throughout such year, or, if
there
has been a default in its compliance with any such condition or covenant,
specifying each such default known to such Authorized Officer and the nature
and
status thereof.
Section
3.11 Representations
and Warranties Concerning the Loans.
The
Indenture Trustee, as pledgee of the Loans, has the benefit of the
representations and warranties made by the Seller in Section 2 and Exhibit
B of
the Loan Purchase Agreement concerning the Loans and the right to enforce
the
remedies against the Seller provided in such Section 3.1(a) or Section 3.1(b)
to
the same extent as though such representations and warranties were made directly
to the Indenture Trustee.
Section
3.12 Assignee
of Record of the Loans.
The
Issuing Entity hereby directs and authorizes the Indenture Trustee to hold
record title to the Loans by being named as payee in the endorsements of
the
Mortgage Notes and assignee in the Assignments of Mortgage to be recorded.
Except as expressly provided in the Loan Purchase Agreement or in the Servicing
Agreement with respect to any specific Loan, the Indenture Trustee shall
not
execute any endorsement or assignment or otherwise release or transfer such
record title to any of the Loans until such time as the remaining Trust may
be
released pursuant to Section 8.05(b). The Indenture Trustee's holding of
such
record title shall in all respects be subject to its fiduciary obligations
to
the Noteholders hereunder.
Section
3.13 Investment
Company Act.
The
Issuing Entity shall not become an “investment company” or under the “control”
of an “investment company” as such terms are defined in the Investment Company
Act of 1940, as amended (or any successor or amendatory statute), and the
rules
and regulations thereunder (taking into account not only the general definition
of the term “investment company” but also any available exceptions to such
general definition); provided, however, that the Issuing Entity shall be
in
compliance with this Section 3.12 if it shall have obtained an order exempting
it from regulation as an “investment company” so long as it is in compliance
with the conditions imposed in such order.
11
Section
3.14 Servicer
as Agent and Bailee of the Indenture Trustee.
Solely
for purposes of perfection under Section 9-305 of the Uniform Commercial
Code or
other similar applicable law, rule or regulation of the state in which such
property is held by the Servicer, the Issuing Entity and the Indenture Trustee
hereby acknowledges that the Servicer is acting as agent and bailee of the
Indenture Trustee in holding amounts on deposit in the Custodial Account
pursuant to Section 3.02 of the Servicing Agreement that are allocable to
the
Loans, as well as its agent and bailee in holding any Related Documents released
to the Servicer pursuant to Section 3.06(c) of the Servicing Agreement, and
any
other items constituting a part of the Trust Estate which from time to time
come
into the possession of the Servicer. It is intended that, by the Servicer's
acceptance of such agency pursuant to Section 3.02 of the Servicing Agreement,
the Indenture Trustee, as a pledgee of the Loans, will be deemed to have
possession of such Related Documents, such monies and such other items for
purposes of Section 9-305 of the Uniform Commercial Code of the state in
which
such property is held by the Servicer.
Section
3.15 Issuing
Entity May Consolidate, Etc.
e)
The
Issuing Entity shall not consolidate or merge with or into any other Person,
unless:
(i) the
Person (if other than the Issuing Entity) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws
of the United States of America or any state or the District of Columbia
and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form reasonably satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of and interest
on all Notes and to the Certificate Paying Agent, on behalf of the
Certificateholders and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuing Entity to be performed
or
observed, all as provided herein;
(ii) immediately
after giving effect to such transaction, no Event of Default shall have occurred
and be continuing;
(iii) the
Rating Agencies shall have notified the Issuing Entity that such transaction
shall not cause the rating of any of the Notes to be reduced, suspended or
withdrawn or to be considered by either Rating Agency to be below investment
grade;
(iv) the
Issuing Entity shall have received an Opinion of Counsel (and shall have
delivered copies thereof to the Indenture Trustee) to the effect that such
transaction will not have any material adverse tax consequence to the Issuing
Entity, any Noteholder or any Certificateholder;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuing Entity shall have delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation
or
merger and such supplemental indenture comply with this Article III and that
all
conditions precedent herein provided for relating to such transaction have
been
complied with (including any filing required by the Exchange Act).
12
(b) The
Issuing Entity shall not convey or transfer any of its properties or assets,
including those included in the Trust Estate, to any Person
(unless:
(i) the
Person that acquires by conveyance or transfer the properties and assets
of the
Issuing Entity the conveyance or transfer of which is hereby restricted shall
(A) be a United States citizen or a Person organized and existing under the
laws
of the United States of America or any state, (B) expressly assumes, by an
indenture supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual payment
of
the principal of and interest on all Notes and the performance or observance
of
every agreement and covenant of this Indenture on the part of the Issuing
Entity
to be performed or observed, all as provided herein, (C) expressly agrees
by
means of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights of
Holders of the Notes, (D) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold harmless the Issuing
Entity against and from any loss, liability or expense arising under or related
to this Indenture and the Notes and (E) expressly agrees by means of such
supplemental indenture that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection with the
Notes;
(ii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;
(iii) the
Rating Agencies shall have notified the Issuing Entity that such transaction
shall not cause the rating of the Notes or the Certificates to be reduced,
suspended or withdrawn;
(iv) the
Issuing Entity shall have received an Opinion of Counsel (and shall have
delivered copies thereof to the Indenture Trustee) to the effect that such
transaction will not have any material adverse tax consequence to the Issuing
Entity or any Noteholder;
(v) any
action that is necessary to maintain the lien and security interest created
by
this Indenture shall have been taken; and
(vi) the
Issuing Entity shall have delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such conveyance or
transfer and such supplemental indenture comply with this Article III and
that
all conditions precedent herein provided for relating to such transaction
have
been complied with (including any filing required by the Exchange
Act).
Section
3.16 Successor
or Transferee.
f)
Upon any
consolidation or merger of the Issuing Entity in accordance with Section
3.13(a), the Person formed by or surviving such consolidation or merger (if
other than the Issuing Entity) shall succeed to, and be substituted for,
and may
exercise every right and power of, the Issuing Entity under this Indenture
with
the same effect as if such Person had been named as the Issuing Entity
herein.
13
(b) Upon
a
conveyance or transfer of all the assets and properties of the Issuing Entity
pursuant to Section 3.13(b), the Issuing Entity will be released from every
covenant and agreement of this Indenture to be observed or performed on the
part
of the Issuing Entity with respect to the Notes immediately upon the delivery
of
written notice to the Indenture Trustee of such conveyance or
transfer.
Section
3.17 No
Other Business.
The
Issuing Entity shall not engage in any business other than financing,
purchasing, owning and selling and managing the Loans and the issuance of
the
Notes and Certificates in the manner contemplated by this Indenture and the
Basic Documents and all activities incidental thereto.
Section
3.18 No
Borrowing.
The
Issuing Entity shall not issue, incur, assume, guarantee or otherwise become
liable, directly or indirectly, for any indebtedness except for the
Notes.
Section
3.19 Guarantees,
Loans, Advances and Other Liabilities.
Except
as contemplated by this Indenture or the Basic Documents, the Issuing Entity
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly,
in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section
3.20 Capital
Expenditures.
The
Issuing Entity shall not make any expenditure (by long-term or operating
lease
or otherwise) for capital assets (either realty or personalty).
Section
3.21 Owner
Trustee Not Liable for Certificates or Related Documents.
The
recitals contained herein 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
Indenture, of any Basic Document or of the Certificate (other than the
signatures of the Owner Trustee on the Certificate) or the Notes, 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
the Owner Trust Agreement or the Noteholders under this 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
Certificate Paying Agent, the Certificate Registrar or the Indenture Trustee
taken in the name of the Owner Trustee.
Section
3.22 Restricted
Payments.
The
Issuing Entity shall not, directly or indirectly, (i) pay any dividend or
make
any distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to the Owner Trustee or any
owner
of a beneficial interest in the Issuing Entity or otherwise with respect
to any
ownership or equity interest or security in or of the Issuing Entity, (ii)
redeem, purchase, retire or otherwise acquire for value any such ownership
or
equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; provided, however, that the Issuing Entity
may
make, or cause to be made, (x) distributions to the Owner Trustee and the
Certificateholders as contemplated by, and to the extent funds are available
for
such purpose under the Owner Trust Agreement and (y) payments to the Servicer
pursuant to the terms of the Servicing Agreement. The Issuing Entity will
not,
directly or indirectly, make payments to or distributions from the Custodial
Account except in accordance with this Indenture and the Basic
Documents.
14
Section
3.23 Notice
of Events of Default.
The
Issuing Entity shall give the Indenture Trustee and the Rating Agencies prompt
written notice of each Event of Default hereunder and under the Owner Trust
Agreement.
Section
3.24 Further
Instruments and Acts.
Upon
request of the Indenture Trustee, the Issuing Entity will execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this
Indenture.
Section
3.25 Statements
to Noteholders.
On each
Payment Date, the Indenture Trustee and the Certificate Registrar shall forward
by mail or facsimile to each Noteholder and Certificateholder, respectively,
the
Statement delivered to it, on the Business Day following the related
Determination Date pursuant to Section 4.01 of the Servicing
Agreement.
Section
3.26 Allocation
of Realized Losses.
On any
Payment Date in which the Overcollateralized Amount has been reduced to zero,
and an Applied Loss Amount exists, such Applied Loss Amount shall be allocated
in the following priority:
(a) first,
the Class Principal Balance of the Class B-2 Notes shall be reduced, until
the
Class Principal Balance thereof has been reduced to zero;
(b) second,
the Class Principal Balance of the Class B-1 Notes shall be reduced, until
the
Class Principal Balance thereof has been reduced to zero;
(c) third,
the Class Principal Balance of the Class M-2 Notes shall be reduced, until
the
Class Principal Balance thereof has been reduced to zero; and
(d) fourth,
the Class Principal Balance of the Class M-1 Notes shall be reduced, until
the
Class Principal Balance thereof has been reduced to zero.
The
Class
Principal Balance of the Class A Notes will not be so reduced and will continue
to receive Current Interest thereon in accordance with Section
3.05(b).
Section
3.27 Determination
of the Libor Rate.
On each
LIBOR Rate Adjustment Date, LIBOR shall be established by the Indenture Trustee
and as to any Accrual Period, LIBOR will equal the rate for United States
dollar
deposits for one month which appears on the Dow Xxxxx Telerate Screen Page
3750
as of 11:00 A M , London time, on that LIBOR rate adjustment date. Dow Xxxxx
Telerate Screen Page 3750 means the display designated as page 3750 on the
Telerate Service or any other page as may replace page 3750 on that service
for
the purpose of displaying London interbank offered rates of major banks.
If the
rate does not appear on that page or any other page as may replace that page
on
that service, or if the service is no longer offered, any other service for
displaying LIBOR or comparable rates as may be selected by the Indenture
Trustee
after consultation with the Servicer, the rate will be the reference bank
rate.
15
The
Reference Bank Rate will be determined on the basis of the rates at which
deposits in the U. S. Dollars are offered by the reference banks, which shall
be
three major banks that are engaged in transactions in the London interbank
market, selected by the Indenture Trustee after consultation with the Servicer.
The Reference Bank Rate will be determined as of 11:00 A M , London time,
on the
LIBOR rate adjustment date to prime banks in the London interbank market
for a
period of one month in amounts approximately equal to the Class Principal
Balance of the Class A Notes. The Indenture Trustee will request the principal
London office of each of the reference banks to provide a quotation of its
rate.
If at least two quotations are provided, the rate will be the arithmetic
mean of
the quotations. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean of the rates quoted by one
or
more major banks in New York City, selected by the Indenture Trustee after
consultation with the Servicer, as of 11:00 A M , New York City time, on
that
date for loans in U S Dollars to leading European banks for a period of one
month in amounts approximately equal to the note balance of the Class A Notes.
If no quotations can be obtained, the rate will be LIBOR for the prior Payment
Date; provided however, if, under the priorities listed previously in this
paragraph, LIBOR for a Payment Date would be based on LIBOR for the previous
Payment Date for the third consecutive Payment Date, the Indenture Trustee
after
consultation with the Servicer shall select an alternative comparable index
over
which the Indenture Trustee has no control, used for determining one-month
Eurodollar lending rates that is calculated and published or otherwise made
available by an independent party. LIBOR business day means any day other
than
(a) a Saturday or a Sunday or (b) a day on which banking institutions in
the
city of London, England or New York, New York are required or authorized
by law
to be closed.
The
establishment of LIBOR by the Indenture Trustee and the Indenture Trustee's
subsequent calculation of the Note Interest Rate applicable to the Class
A,
Class M-2 and Class B-1 Notes for the relevant Accrual Period, in the absence
of
manifest error, will be final and binding.
Section
3.28 Liquidation
on Final Maturity Date.
On the
Final Maturity Date, if the Securities are not paid in full on or prior to
the
Final Maturity Date, the Indenture Trustee shall take full account of the
assets
and liabilities of the Owner Trust, shall liquidate the assets, in a
commercially reasonable manner and on commercially reasonable terms, as promptly
as is consistent with obtaining the fair value thereof and in accordance
with
Section 5.15, and shall apply and distribute the proceeds therefrom in the
order
of priority described in Section 3.05(b), (c), (d), (e), (f) and
(g).
Section
3.29 No
Recourse.
Upon
the occurrence of an Event of Default under the Notes, this Indenture or
the
other Basic Documents, Holders of the Notes shall have recourse only to the
Collateral and all proceeds thereof, as and to the extent provided herein,
and
no recourse shall be had by such Holders against the Issuing Entity or its
other
assets or properties.
ARTICLE
IV
Section
4.01 The
Notes.
The
Book-Entry Notes shall be registered in the name of a nominee designated
by the
Depository. Beneficial Owners will hold interests in the Book-Entry Notes
through the book-entry facilities of the Depository in minimum initial Note
Balances of $25,000 and integral multiples of $1 in excess thereof. Ownership
in
any Physical Note will be evidenced by a physical, fully registered Note
transferable through the facilities of the Note Registrar.
16
The
Indenture Trustee may for all purposes (including the making of payments
due on
the Book- Entry Notes) deal with the Depository as the authorized representative
of the Beneficial Owners with respect to the Book-Entry Notes for the purposes
of exercising the rights of Holders of Book-Entry Notes hereunder. Except
as
provided in the next succeeding paragraph of this Section 4.01, the rights
of
Beneficial Owners with respect to the Book-Entry Notes shall be limited to
those
established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. Except as provided in Section 4.08,
Beneficial Owners shall not be entitled to definitive certificates for the
Book-Entry Notes as to which they are the Beneficial Owners. Requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Notes
shall not be deemed inconsistent if they are made with respect to different
Beneficial Owners. The Indenture Trustee may establish a reasonable record
date
in connection with solicitations of consents from or voting by Holders of
the
Book-Entry Notes and give notice to the Depository of such record date. Without
the consent of the Issuing Entity and the Indenture Trustee, no Book-Entry
Note
may be transferred by the Depository except to a successor Xxxxxxxxxx that
agrees to hold such Book-Entry Note for the account of the Beneficial
Owners.
In
the
event the Depository Trust Company resigns or is removed as Depository, the
Indenture Trustee with the approval of the Issuing Entity may appoint a
successor Depository. If no successor Depository has been appointed within
30
days of the effective date of the Depository's resignation or removal, each
Beneficial Owner shall be entitled to certificates representing the Book-Entry
Notes it beneficially owns in the manner prescribed in Section
4.08.
The
Notes
shall, on original issue, be executed on behalf of the Issuing Entity by
the
Owner Trustee, not in its individual capacity but solely as Owner Trustee,
authenticated by the Note Registrar and delivered by the Indenture Trustee
to or
upon the order of the Issuing Entity.
Section
4.02 Registration
of and Limitations on Transfer and Exchange of Notes; Appointment of Certificate
Registrar.
The
Issuing Entity shall cause to be kept at the Indenture Trustee's Corporate
Trust
Office a Note Register in which, subject to such reasonable regulations as
it
may prescribe, the Note Registrar shall provide for the registration of Notes
and of transfers and exchanges of Notes as herein provided.
Each
Person who has or who acquires any Note (other than a Class B-2 Note) shall
be
deemed by the acceptance or acquisition of such Note to have represented
that
the either (1) it is not acquiring the Note with the assets of a Plan or
(2) the
acquisition and holding of a Note will not give rise to a nonexempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code as a result
of any of the above-mentioned Persons being a “Party in Interest” (within the
meaning of ERISA) or Disqualified Person (within the meaning of the
Code).
No
Class
B-2 Note may be sold or transferred unless: (1) the transferee is not a Plan
or
any other person acting on behalf of a Plan, or using the assets of a Plan
to
acquire such Notes; or (2) the transferee is a Plan and has provided the
Issuing
Entity and the Indenture Trustee an Opinion of Counsel satisfactory to the
Issuing Entity and the Indenture Trustee that the purchase, holding and transfer
of the Class B-2 Notes or interests therein is permissible under applicable
law,
will not constitute or result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Issuing Entity,
the
Owner Trustee or the Indenture Trustee to any obligation in addition to those
undertaken in this Agreement.
17
The
Class
B-2 Notes cannot be sold or transferred to Non-United States
Persons.
No
transfer, sale, pledge or other disposition of a Class B-2 Note shall be
made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Indenture Trustee prior to such transfer either (i)
shall
require the transferee to execute an investment letter in substantially the
form
attached hereto as Exhibit C (or in such form and substance reasonably
satisfactory to the Indenture Trustee) which investment letters shall not
be an
expense of the Trust, the Indenture Trustee, the Servicer or the Depositor
and
which investment letter states that, among other things, such transferee
(a) is
a “qualified institutional buyer” as defined under Rule 144A, acting for its own
account or the accounts of other “qualified institutional buyers” as defined
under Rule 144A, and (b) is aware that the proposed transferor intends to
rely
on the exemption from registration requirements under the Securities Act
of
1933, as amended, provided by Rule 144A or (ii) (a) may require the delivery
of
a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Indenture Trustee that such transfer may be made pursuant
to
an exemption, describing the applicable exemption and the basis therefor,
from
said Act and laws or is being made pursuant to said Act and laws, which Opinion
of Counsel shall not be an expense of the Trust, the Indenture Trustee, the
Servicer or the Depositor and (b) shall require the transferee to execute
a
representation letter, substantially in the form of Exhibit D hereto, and
the
transferor to execute a representation letter, substantially in the form
of
Exhibit E hereto, each acceptable to and in form and substance satisfactory
to
the Indenture Trustee certifying the facts surrounding such transfer, which
representation letters shall not be an expense of the Trust, the Indenture
Trustee, the Servicer or the Depositor.
Subject
to the restrictions and limitations set forth below, upon surrender for
registration of transfer of any Class of Note at the Corporate Trust Office,
the
Issuing Entity shall execute and the Note Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more
new Notes of the same Class in authorized initial Note Balances evidencing
the
same aggregate Percentage Interests.
Subject
to the foregoing, at the option of the Noteholders, Notes may be exchanged
for
other Notes of the same Class and of like tenor, in authorized initial Note
Balances evidencing the same aggregate Percentage Interests upon surrender
of
the Notes to be exchanged at the Corporate Trust Office of the Note Registrar.
Whenever any Notes are so surrendered for exchange, the Indenture Trustee
shall
execute and the Note Registrar shall authenticate and deliver the Notes which
the Noteholder making the exchange is entitled to receive. Each Note presented
or surrendered for registration of transfer or exchange shall (if so required
by
the Note Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Note Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing
with such signature guaranteed by a commercial bank or trust company located
or
having a correspondent located in the city of New York. Notes delivered upon
any
such transfer or exchange will evidence the same obligations, and will be
entitled to the same rights and privileges, as the Notes
surrendered.
18
No
service charge shall be imposed for any registration of transfer or exchange
of
Notes, but the Note Registrar shall require payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes.
All
Notes
surrendered for registration of transfer and exchange shall be canceled by
the
Note Registrar and delivered to the Indenture Trustee for subsequent destruction
without liability on the part of either.
The
Issuing Entity hereby appoints the Indenture Trustee as Certificate Registrar
to
keep at its Corporate Trust Office a Certificate Register pursuant to Section
3.09 of the Owner Trust Agreement in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide
for the
registration of Certificates and of transfers and exchanges thereof pursuant
to
Section 3.05 of the Owner Trust Agreement. The Indenture Trustee hereby accepts
such appointment.
Section
4.03 Mutilated,
Destroyed, Lost or Stolen Notes.
If (i)
any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or
theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by it to hold the Issuing Entity and the
Indenture Trustee harmless, then, in the absence of notice to the Issuing
Entity, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, and provided that the requirements of
Section
8-405 of the UCC are met, the Issuing Entity shall execute, and upon its
request
the Indenture Trustee shall authenticate and deliver, in exchange for or
in lieu
of any such mutilated, destroyed, lost or stolen Note, a replacement Note
of the
same class; provided, however, that if any such destroyed, lost or stolen
Note,
but not a mutilated Note, shall have become or within seven days shall be
due
and payable, instead of issuing a replacement Note, the Issuing Entity may
pay
such destroyed, lost or stolen Note when so due or payable without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the
Issuing
Entity and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note
was
delivered or any assignee of such Person, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor
to
the extent of any loss, damage, cost or expense incurred by the Issuing Entity
or the Indenture Trustee in connection therewith.
Upon
the
issuance of any replacement Note under this Section 4.03, the Issuing Entity
may
require the payment by the Holder of such Note of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in relation thereto
and any
other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
19
Every
replacement Note issued pursuant to this Section 4.03 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuing Entity, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by
anyone, and shall be entitled to all the benefits of this Indenture equally
and
proportionately with any and all other Notes duly issued hereunder.
The
provisions of this Section 4.03 are exclusive and shall preclude (to the
extent
lawful) all other rights and remedies with respect to the replacement or
payment
of mutilated, destroyed, lost or stolen Notes.
Section
4.04 Persons
Deemed Owners.
Prior
to due presentment for registration of transfer of any Note, the Issuing
Entity,
the Indenture Trustee and any agent of the Issuing Entity or the Indenture
Trustee may treat the Person in whose name any Note is registered (as of
the day
of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuing Entity, the Indenture Trustee nor any agent of the Issuing Entity
or the
Indenture Trustee shall be affected by notice to the contrary.
Section
4.05 Cancellation.
All
Notes surrendered for payment, registration of transfer, exchange or redemption
shall, if surrendered to any Person other than the Indenture Trustee, be
delivered to the Indenture Trustee and shall be promptly canceled by the
Indenture Trustee. The Issuing Entity may at any time deliver to the Indenture
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Issuing Entity may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section 4.05, except as expressly permitted by this
Indenture. All canceled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuing Entity shall direct by an Issuing Entity
Request that they be destroyed or returned to it; provided however, that
such
Issuing Entity Request is timely and the Notes have not been previously disposed
of by the Indenture Trustee.
Section
4.06 Book-Entry
Notes.
The
Notes (other than the Class B-2 Notes), upon original issuance, will be issued
in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company, the initial Depository, by, or
on
behalf of, the Issuing Entity. The Notes shall initially be registered on
the
Note Register in the name of Cede & Co., the nominee of the initial
Depository, and no Beneficial Owner will receive a Definitive Note representing
such Beneficial Owner's interest in such Note, except as provided in Section
4.08. Unless and until definitive, fully registered Notes (the “Definitive
Notes”) have been issued to Beneficial Owners pursuant to Section
4.08:
(i) the
provisions of this Section 4.06 shall be in full force and effect;
(ii) the
Note
Registrar and the Indenture Trustee shall be entitled to deal with the
Depository for all purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole holder of the Notes, and shall have no
obligation to the Owners of the Notes;
20
(iii) to
the
extent that the provisions of this Section 4.06 conflict with any other
provisions of this Indenture, the provisions of this Section 4.06 shall
control;
(iv) the
rights of Beneficial Owners shall be exercised only through the Depository
and
shall be limited to those established by law and agreements between such
Owners
of Notes and the Depository and/or the Depository Participants. Unless and
until
Definitive Notes are issued pursuant to Section 4.08, the initial Depository
will make book-entry transfers among the Depository Participants and receive
and
transmit payments of principal of and interest on the Notes to such Depository
Participants; and
(v) whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Holders of Notes evidencing a specified percentage of the
Note
Balances of the Notes, the Depository shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Beneficial Owners and/or Depository Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes
and has delivered such instructions to the Indenture Trustee.
Section
4.07 Notices
to Depository.
Whenever a notice or other communication to the Holders of the Notes is required
under this Indenture, unless and until Definitive Notes shall have been issued
to Beneficial Owners pursuant to Section 4.08, the Indenture Trustee shall
give
all such notices and communications specified herein to be given to Holders
of
the Notes to the Depository, and shall have no obligation to the Beneficial
Owners.
Section
4.08 Definitive
Notes.
If (i)
the Indenture Trustee determines that the Depository is no longer willing
or
able to properly discharge its responsibilities with respect to the Notes
and
the Indenture Trustee is unable to locate a qualified successor, (ii) the
Indenture Trustee elects to terminate the book-entry system through the
Depository or (iii) after the occurrence of an Event of Default, Owners of
the
Notes representing beneficial interests aggregating at least a majority of
the
Note Balances of the Notes advise the Depository in writing that the
continuation of a book-entry system through the Depository is no longer in
the
best interests of the Beneficial Owners, then the Depository shall notify
all
Beneficial Owners and the Indenture Trustee of the occurrence of any such
event
and of the availability of Definitive Notes to Beneficial Owners requesting
the
same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Depository, accompanied by registration
instructions, the Issuing Entity shall execute and the Indenture Trustee
shall
authenticate the Definitive Notes in accordance with the instructions of
the
Depository. None of the Issuing Entity, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and
may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize
the
Holders of the Definitive Notes as Noteholders.
Section
4.09 Tax
Treatment.
The
Issuing Entity has entered into this Indenture, and the Notes will be issued,
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuing Entity. The Issuing Entity, by entering into this Indenture, and
each
Noteholder, by its acceptance of its Note (and each Beneficial Owner by its
acceptance of an interest in the applicable Book-Entry Note), agree to treat
the
Notes for federal, state and local income, single business and franchise
tax
purposes as indebtedness of the Issuing Entity and agree, so long as the
equity
of the Issuing Entity is owned by one person for federal income tax purposes,
to
disregard the Issuing Entity as an entity separate from its 100% owner. However,
in the event the Issuing Entity is treated as a partnership, then the
Administrator pursuant to the Administration Agreement shall, for federal
income
tax information and reporting purposes, treat the Issuing Entity as a
partnership and will file such tax returns relating to a partnership (including
the partnership information return on IRS Form 1065). All of the parties
hereto
and each Noteholder agrees to appoint the Administrator as agent to the “tax
matters person” for federal income tax purposes, if necessary.
21
Section
4.10 Satisfaction
and Discharge of Indenture.
This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution
of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections
3.03,
3.04, 3.06, 3.09, 3.13, 3.15, 3.16 and the last paragraph of Section 4.02,
(v)
the rights, obligations and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under Section 6.07 and the
obligations of the Indenture Trustee under Section 4.11) and (vi) the rights
of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuing Entity, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when
(A) either
(1)
each
Class of Notes theretofore authenticated and delivered (other than (i) Notes
that have been destroyed, lost or stolen and that have been replaced or paid
as
provided in Section 4.03 and (ii) Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Issuing Entity
and thereafter repaid to the Issuing Entity or discharged from such trust,
as
provided in Section 3.03) have been delivered to the Indenture Trustee for
cancellation; or
(2)
each
Class of Notes not theretofore delivered to the Indenture Trustee for
cancellation
a.
have
become due and payable,
b.
will
become due and payable within one year, or
c.
have
been declared immediately due and payable pursuant to Section 5.02.
and
the
Issuing Entity, in the case of a. or b. above, has irrevocably deposited
or
caused to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America
(which
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness
on
such Notes then outstanding not theretofore delivered to the Indenture Trustee
for cancellation when due on the Final Scheduled Payment Date;
22
(B) the
Issuing Entity has paid or caused to be paid all other sums payable hereunder
by
the Issuing Entity; and
(C) the
Issuing Entity has delivered to the Indenture Trustee an Officer's Certificate
and an Opinion of Counsel, each meeting the applicable requirements of Section
10.01, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied with
and,
if the Opinion of Counsel relates to a deposit made in connection with Section
4.10(A)(2)b. above, such opinion shall further be to the effect that such
deposit will not have any material adverse tax consequences to the Issuing
Entity, any Noteholders or any Certificateholders.
Section
4.11 Application
of Trust Money.
All
monies deposited with the Indenture Trustee pursuant to Section 4.10 hereof
shall be held in trust and applied by it, in accordance with the provisions
of
the Notes and this Indenture, to the payment, either directly or through
any
Paying Agent or Certificate Paying Agent, as the Indenture Trustee may
determine, to the Holders of Securities, of all sums due and to become due
thereon for principal and interest; but such monies need not be segregated
from
other funds except to the extent required herein or required by
law.
Section
4.12 [RESERVED]
Section
4.13 Repayment
of Monies Held by
Paying Agent.
In
connection with the satisfaction and discharge of this Indenture with respect
to
the Notes, all monies then held by any Person other than the Indenture Trustee
under the provisions of this Indenture with respect to such Notes shall,
upon
demand of the Issuing Entity, be paid to the Indenture Trustee to be held
and
applied according to Section 3.05 and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
Section
4.14 Temporary
Notes.
Pending
the preparation of any Definitive Notes, the Issuing Entity may execute and
upon
its written direction, the Indenture Trustee may authenticate and make available
for delivery, temporary Notes that are printed, lithographed, typewritten,
photocopied or otherwise produced, in any denomination, substantially of
the
tenor of the Definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as
the
officers executing such Notes may determine, as evidenced by their execution
of
such Notes.
If
temporary Notes are issued, the Issuing Entity will cause Definitive Notes
to be
prepared without unreasonable delay. After the preparation of the Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Indenture
Trustee, without charge to the Holder. Upon surrender for cancellation of
any
one or more temporary Notes, the Issuing Entity shall execute and the Indenture
Trustee shall authenticate and make available for delivery, in exchange
therefor, Definitive Notes of authorized denominations and of like tenor
and
aggregate principal amount. Until so exchanged, such temporary Notes shall
in
all respects be entitled to the same benefits under this Indenture as Definitive
Notes.
23
ARTICLE
V
Section
5.01 Events
of Default.
The
Issuing Entity shall deliver to the Indenture Trustee, within five days after
learning of the occurrence any event which with the giving of notice and
the
lapse of time would become an Event of Default under clause (iii) of the
definition of “Event of Default” written notice in the form of an Officer's
Certificate of its status and what action the Issuing Entity is taking or
proposes to take with respect thereto.
Section
5.02 Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default should occur and be continuing, then and in every such case
the
Indenture Trustee may, and upon the request of the Holders of Notes representing
not less than a majority of the Note Balances of all Notes, the Indenture
Trustee shall, declare the Notes to be immediately due and payable, by a
notice
in writing to the Issuing Entity (and to the Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid principal amount of
each
class of Notes, together with accrued and unpaid interest thereon through
the
date of acceleration, shall become immediately due and payable.
At
any
time after such declaration of acceleration of maturity with respect to an
Event
of Default has been made and before a judgment or decree for payment of the
money due has been obtained by the Indenture Trustee as hereinafter in this
Article V provided, the Holders of Notes representing a majority of the Note
Balances of all Notes, by written notice to the Issuing Entity and the Indenture
Trustee may in writing waive the related Event of Default and rescind and
annul
such declaration and its consequences if:
(i) the
Issuing Entity has paid or deposited with the Indenture Trustee a sum sufficient
to pay:
(A) all
payments of principal of and interest on the Notes and all other amounts
that
would then be due hereunder or upon the Notes if the Event of Default giving
rise to such acceleration had not occurred; and
(B) all
sums
paid by the Indenture Trustee hereunder and the reasonable compensation,
expenses and disbursements of the Indenture Trustee and its agents and counsel;
and
(ii) all
Events of Default, other than the nonpayment of the principal of the Notes
that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.12.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereto.
24
Section
5.03 Collection
of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) Subject
to Section 3.27, the Issuing Entity covenants that if a default occurs in
the
payment of (i) any interest on any Note when the same becomes due and payable,
and such default continues for a period of five days, or (ii) the principal
of
or any installment of the principal of any Note when the same becomes due
and
payable, the Issuing Entity shall, upon demand of the Indenture Trustee,
pay to
it, for the benefit of the Holders of Notes, the whole amount then due and
payable on the Notes for principal and interest, with interest upon the overdue
principal, and in addition thereto such further amount as shall be sufficient
to
cover the costs and expenses of collection, including the reasonable
compensation, expenses and disbursements of the Indenture Trustee and its
agents
and counsel.
(b) In
case
the Issuing Entity shall fail forthwith to pay such amounts upon such demand,
the Indenture Trustee, in its own name and as trustee of an express trust,
subject to the provisions of Section 10.17 hereof may institute a Proceeding
for
the collection of the sums so due and unpaid, and may prosecute such Proceeding
to judgment or final decree, and may enforce the same against the Issuing
Entity
or other obligor upon the Notes and collect in the manner provided by law
out of
the property of the Issuing Entity or other obligor upon the Notes, wherever
situated, the monies adjudged or decreed to be payable.
(c) If
an
Event of Default occurs and is continuing, the Indenture Trustee subject
to the
provisions of Section 10.17 hereof may, as more particularly provided in
Section
5.04, in its discretion, proceed to protect and enforce its rights and the
rights of the Noteholders, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In
case
there shall be pending, relative to the Issuing Entity or any other obligor
upon
the Notes or any Person having or claiming an ownership interest in the Trust
Estate, Proceedings under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or other similar law,
or in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for
or
taken possession of the Issuing Entity or its property or such other obligor
or
Person, or in case of any other comparable judicial Proceedings relative
to the
Issuing Entity or other obligor upon the Notes, or to the creditors or property
of the Issuing Entity or such other obligor, the Indenture Trustee, irrespective
of whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of
this
Section, shall be entitled and empowered, by intervention in such Proceedings
or
otherwise:
(i) to
file
and prove a claim or claims for the whole amount of principal and interest
owing
and unpaid in respect of the Notes and to file such other papers or documents
as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, by the Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence, willful misconduct or bad faith) and of
the
Noteholders allowed in such Proceedings;
25
(ii) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of Notes in any election of a trustee, a standby trustee or Person performing
similar functions in any such Proceedings;
(iii) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute all amounts received with respect to the claims
of
the Noteholders and of the Indenture Trustee on their behalf; and
(iv) to
file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee or the Holders
of
Notes allowed in any judicial proceedings relative to the Issuing Entity,
its
creditors and its property;
and
any
trustee, receiver, liquidator, custodian or other similar official in any
such
Proceeding is hereby authorized by each of such Noteholders to make payments
to
the Indenture Trustee, and, in the event that the Indenture Trustee shall
consent to the making of payments directly to such Noteholders, to pay to
the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee
and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence, willful misconduct or bad
faith.
(e) Nothing
herein contained shall be deemed to authorize the Indenture Trustee to authorize
or consent to or vote for or accept or adopt on behalf of any Noteholder
any
plan of reorganization, arrangement, adjustment or composition affecting
the
Notes or the rights of any Holder thereof or to authorize the Indenture Trustee
to vote in respect of the claim of any Noteholder in any such proceeding
except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All
rights of action and of asserting claims under this Indenture, or under any
of
the Notes, may be enforced by the Indenture Trustee without the possession
of
any of the Notes or the production thereof in any trial or other Proceedings
relative thereto, and any such action or proceedings instituted by the Indenture
Trustee shall be brought in its own name as trustee of an express trust,
and any
recovery of judgment, subject to the payment of the expenses, disbursements
and
compensation of the Indenture Trustee, each predecessor Indenture Trustee
and
their respective agents and attorneys, shall be for the ratable benefit of
the
Holders of the Notes.
(g) In
any
Proceedings brought by the Indenture Trustee (and also any Proceedings involving
the interpretation of any provision of this Indenture to which the Indenture
Trustee shall be a party), the Indenture Trustee shall be held to represent
all
the Holders of the Notes, and it shall not be necessary to make any Noteholder
a
party to any such Proceedings.
26
Section
5.04 Remedies;
Priorities.
g)
If an
Event of Default shall have occurred and be continuing, the Indenture Trustee
subject to the provisions of Section 10.17 hereof may do one or more of the
following (subject to Section 5.05):
(i) institute
Proceedings in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Notes or under this Indenture
with
respect thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuing Entity and any other obligor upon
such
Notes monies adjudged due;
(ii) institute
Proceedings from time to time for the complete or partial foreclosure of
this
Indenture with respect to the Trust Estate;
(iii) exercise
any remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Indenture Trustee
and the Holders of the Notes;
(iv) [Reserved]
(v) refrain
from selling the Trust Estate (unless otherwise directed by a majority of
noteholders) and continue to apply all amounts received thereon to payments
on
the Notes in accordance with Section 3.05; and
(vi) sell
the
Trust Estate or any portion thereof or rights or interest therein, at one
or
more public or private sales called and conducted in any manner permitted
by
law.
provided,
however, that the Indenture Trustee must sell or otherwise liquidate the
Trust
Estate following an Event of Default, if (i) the Holders of the Notes
representing not less than a majority of the Note Balance of all of the Notes
direct the Indenture Trustee to sell or otherwise liquidate the Trust Estate
or
(ii) the Indenture Trustee determines that the Loans will not continue to
provide sufficient funds for (A) the payment of expenses under this Indenture
and (B) the payment of principal of and interest on the Notes as they would
have
become due if the Notes had not been declared due and payable. In determining
such sufficiency or insufficiency with respect to clause (A) and (B), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation
as to
the feasibility of such proposed action and as to the sufficiency of the
Trust
Estate for such purpose. Notwithstanding the foregoing, so long as a Servicing
Default has not occurred, any Sale of the Trust Estate shall be made subject
to
the continued servicing of the Loans by the Servicer as provided in the
Servicing Agreement.
(b) If
the
Indenture Trustee collects any money or property pursuant to this Article
V, it
shall pay out the money or property in the following order:
FIRST:
to
the Indenture Trustee for amounts due and unpaid under Section 6.07 and to
the
Owner Trustee for amounts due and unpaid under Article VII of the Amended
and
Restated Trust Agreement;
27
SECOND:
to the Class A Noteholders, the amount of any Current Interest and any
Carryforward Interest, any applicable Basis Risk Shortfall, and further as
principal until the Class Principal Balance of such Class has been reduced
to
zero;
THIRD:
to
the Class M-1 Noteholders, the amount of any Current Interest and any
Carryforward Interest, any applicable Deferred Amounts, and further as principal
until the Class Principal Balance of such Class has been reduced to
zero;
FOURTH:
to the Class M-2 Noteholders, the amount of any Current Interest and any
Carryforward Interest, any applicable Deferred Amounts, any applicable Basis
Risk Shortfall, and further as principal until the Class Principal Balance
of
such Class has been reduced to zero;
FIFTH:
to
the Class B-1 Noteholders, the amount of any Current Interest and any
Carryforward Interest, any applicable Deferred Amounts, any applicable Basis
Risk Shortfall, and further as principal until the Class Principal Balance
of
such Class has been reduced to zero;
SIXTH:
to
the Class B-2 Noteholders, the amount of any Current Interest and any
Carryforward Interest, any applicable Deferred Amounts, any applicable Available
Funds Shortfall, and further as principal until the Class Principal Balance
of
such Class has been reduced to zero; and
SEVENTH:
to the payment of the remainder, if any to the Certificate Paying Agent on
behalf of the Issuing Entity or to any other person legally entitled
thereto.
The
Indenture Trustee may fix a record date and payment date for any payment
to
Noteholders pursuant to this Section 5.04. At least 15 days before such record
date, the Indenture Trustee shall mail to each Noteholder a notice that states
the record date, the payment date and the amount to be paid.
Section
5.05 Optional
Preservation of the Trust Estate.
If the
Notes have been declared to be due and payable under Section 5.02 following
an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee shall, unless otherwise directed
to by a majority of noteholders, elect to take and maintain possession of
the
Trust Estate. It is the desire of the parties hereto and the Noteholders
that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes and other obligations of the Issuing Entity.
Section
5.06 Limitation
of Suits.
No
Holder of any Note shall have any right to institute any Proceeding, judicial
or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless and subject to the
provisions of Section 10.17 hereof:
(i) such
Holder has previously given written notice to the Indenture Trustee of a
continuing Event of Default;
28
(ii) the
Holders of not less than 25% of the Note Balances of the Notes have made
written
request to the Indenture Trustee to institute such Proceeding in respect
of such
Event of Default in its own name as Indenture Trustee hereunder;
(iii) such
Holder or Holders have offered to the Indenture Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in complying with
such request;
(iv) the
Indenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute such Proceedings; and
(v) no
direction inconsistent with such written request has been given to the Indenture
Trustee during such 60-day period by the Holders of a majority of the Note
Balances of the Notes.
It
is
understood and intended that no one or more Holders of Notes shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Notes or to obtain or to seek to obtain priority or preference over any
other
Holders or to enforce any right under this Indenture, except in the manner
herein provided.
In
the
event the Indenture Trustee shall receive conflicting or inconsistent requests
and indemnity from two or more groups of Holders of Notes, each representing
less than a majority of the Note Balances of the Notes, the Indenture Trustee
in
its sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture.
Section
5.07 Unconditional
Rights of Noteholders to Receive Principal and Interest.
Notwithstanding any other provisions in this Indenture, but subject to Section
3.27, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and interest, on such
Note on or after the respective due dates thereof expressed in such Note
or in
this Indenture and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such
Holder.
Section
5.08 Restoration
of Rights and Remedies.
If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuing Entity,
the Indenture Trustee and the Noteholders shall, subject to any determination
in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been
instituted.
Section
5.09 Rights
and Remedies Cumulative.
No
right or remedy herein conferred upon or reserved to the Indenture Trustee
or to
the Noteholders is intended to be exclusive of any other right or remedy,
and
every right and remedy shall, to the extent permitted by law, be cumulative
and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
29
Section
5.10 Delay
or Omission not a Waiver.
No
delay or omission of the Indenture Trustee or any Holder of any Note to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by
law
to the Indenture Trustee or to the Noteholders may be exercised from time
to
time, and as often as may be deemed expedient, by the Indenture Trustee or
by
the Noteholders, as the case may be.
Section
5.11 Control
by Noteholders.
The
Holders of a majority of the Note Balances of Notes shall have the right
to
direct the time, method and place of conducting any Proceeding for any remedy
available to the Indenture Trustee with respect to the Notes or exercising
any
trust or power conferred on the Indenture Trustee; provided that:
(i) such
direction shall not be in conflict with any rule of law or with this
Indenture;
(ii) subject
to the express terms of Section 5.04, any direction to the Indenture Trustee
to
sell or liquidate the Trust Estate shall be by Holders of Notes representing
not
less than a majority of the Note Balances of Notes;
(iii) if
the
conditions set forth in Section 5.05 have been satisfied and the Indenture
Trustee is directed to retain the Trust Estate pursuant to such Section,
then
any direction to the Indenture Trustee by Holders of Notes representing less
than a majority of the Note Balances of Notes to sell or liquidate the Trust
Estate shall be of no force and effect; and
(iv) the
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction.
Notwithstanding
the rights of Noteholders set forth in this Section, subject to Section 6.01,
the Indenture Trustee need not take any action that it determines might involve
it in liability or might materially adversely affect the rights of any
Noteholders not consenting to such action.
Section
5.12 Waiver
of Past Defaults.
Prior
to the declaration of the acceleration of the maturity of the Notes as provided
in Section 5.02, the Holders of Notes of not less than a majority of the
Note
Balances of the Notes may waive any past Event of Default and its consequences
except an Event of Default (a) with respect to payment of principal of or
interest on any of the Notes or (b) in respect of a covenant or provision
hereof
which cannot be modified or amended without the consent of the Holder of
each
Note. In the case of any such waiver, the Issuing Entity, the Indenture Trustee
and the Holders of the Notes shall be restored to their former positions
and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent
thereto.
Upon
any
such waiver, any Event of Default arising therefrom shall be deemed to have
been
cured and not to have occurred, for every purpose of this Indenture; but
no such
waiver shall extend to any subsequent or other Event of Default or impair
any
right consequent thereto.
30
Section
5.13 Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Note by such Xxxxxx's
acceptance thereof shall be deemed to have agreed, that any court may in
its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Indenture Trustee for any action
taken, suffered or omitted by it as Indenture Trustee, the filing by any
party
litigant in such suit of an undertaking to pay the costs of such suit, and
that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard
to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.13 shall not apply to (a) any suit
instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder,
or group of Noteholders, in each case holding in the aggregate more than
10% of
the Note Balances of the Notes or (c) any suit instituted by any Noteholder
for
the enforcement of the payment of principal of or interest on any Note on
or
after the respective due dates expressed in such Note and in this
Indenture.
Section
5.14 Waiver
of Stay or Extension Laws.
The
Issuing Entity covenants (to the extent that it may lawfully do so) that
it will
not at any time insist upon, or plead or in any manner whatsoever, claim
or take
the benefit or advantage of, any stay or extension law wherever enacted,
now or
at any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Issuing Entity (to the extent that it may lawfully
do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any
power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been
enacted.
Section
5.15 Sale
of Trust Estate.
h)
The
power to effect any sale or other disposition (a “Sale”) of any portion of the
Trust Estate pursuant to Section 5.04 is expressly subject to the provisions
of
Section 5.05 and this Section 5.15. The power to effect any such Sale shall
not
be exhausted by any one or more Sales as to any portion of the Trust Estate
remaining unsold, but shall continue unimpaired until the entire Trust Estate
shall have been sold or all amounts payable on the Notes and under this
Indenture shall have been paid. The Indenture Trustee may from time to time
postpone any public Sale by public announcement made at the time and place
of
such Sale. The Indenture Trustee hereby expressly waives its right to any
amount
fixed by law as compensation for any Sale.
(b) The
Indenture Trustee shall not in any private Sale sell the Trust Estate, or
any
portion thereof, unless:
(1)
the
Holders of all Notes consent to or direct the Indenture Trustee to make,
such
Sale, or
(2)
the
proceeds of such Sale would be not less than the entire amount which would
be
payable to the Noteholders under the Notes and the Certificateholders under
the
Certificates, in full payment thereof in accordance with Section 5.02, on
the
Payment Date next succeeding the date of such Sale.
The
purchase by the Indenture Trustee of all or any portion of the Trust Estate
at a
private Sale shall not be deemed a Sale or other disposition thereof for
purposes of this Section 5.15(b).
31
(c) Unless
the Holders have otherwise consented or directed the Indenture Trustee, at
any
public Sale of all or any portion of the Trust Estate at which a minimum
bid
equal to or greater than the amount described in paragraph (2) of subsection
(b)
of this Section 5.15 has not been established by the Indenture Trustee and
no
Person bids an amount equal to or greater than such amount.
(d) In
connection with a Sale of all or any portion of the Trust Estate:
(1)
any
Holder or Holders of Notes may bid for and purchase the property offered
for
sale, and upon compliance with the terms of sale may hold, retain and possess
and dispose of such property, without further accountability, and may, in
paying
the purchase money therefor, deliver any Notes or claims for interest thereon
in
lieu of cash up to the amount which shall, upon distribution of the net proceeds
of such sale, be payable thereon, and such Notes, in case the amounts so
payable
thereon shall be less than the amount due thereon, shall be returned to the
Holders thereof after being appropriately stamped to show such partial
payment;
(2)
the
Indenture Trustee may bid for and acquire the property offered for Sale in
connection with any Sale thereof, and, subject to any requirements of, and
to
the extent permitted by, applicable law in connection therewith, may purchase
all or any portion of the Trust Estate in a private sale, and, in lieu of
paying
cash therefor, may make settlement for the purchase price by crediting the
gross
Sale price against the sum of (A) the amount which would be distributable
to the
Holders of the Notes and Holders of Certificates as a result of such Sale
in
accordance with Section 5.04(b) on the Payment Date next succeeding the date of
such Sale and (B) the expenses of the Sale and of any Proceedings in connection
therewith which are reimbursable to it, without being required to produce
the
Notes in order to complete any such Sale or in order for the net Sale price
to
be credited against such Notes, and any property so acquired by the Indenture
Trustee shall be held and dealt with by it in accordance with the provisions
of
this Indenture;
(3)
the
Indenture Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Trust Estate in
connection with a Sale thereof;
(4)
the
Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact
of the Issuing Entity to transfer and convey its interest in any portion
of the
Trust Estate in connection with a Sale thereof, and to take all action necessary
to effect such Sale; and
(5)
no
purchaser or transferee at such a Sale shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any monies.
Section
5.16 Action
on Notes.
The
Indenture Trustee's right to seek and recover judgment on the Notes or under
this Indenture shall not be affected by the seeking, obtaining or application
of
any other relief under or with respect to this Indenture. Neither the lien
of
this Indenture nor any rights or remedies of the Indenture Trustee or the
Noteholders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuing Entity or by the levy of any execution under
such
judgment upon any portion of the Trust Estate or upon any of the assets of
the
Issuing Entity. Any money or property collected by the Indenture Trustee
shall
be applied in accordance with Section 5.04(b).
32
ARTICLE
VI
The
Indenture Trustee
Section
6.01 Duties
of Indenture Trustee.
i)
If an
Event of Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the
same
degree of care and skill in their exercise as a prudent person would exercise
or
use under the circumstances in the conduct of such person's own
affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
Indenture Trustee undertakes to perform such duties and only such duties
as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Indenture Trustee;
and
(ii) in
the
absence of bad faith on its part, the Indenture Trustee may conclusively
rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture Trustee
and
conforming to the requirements of this Indenture; however, the Indenture
Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The
Indenture Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section
6.01;
(ii) the
Indenture Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the
Indenture Trustee shall not be liable with respect to any action it takes
or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 5.11 which it is entitled to give under any of the Basic
Documents.
(d) The
Indenture Trustee shall not be liable for interest on any money received
by it
except as the Indenture Trustee may agree in writing with the Issuing
Entity.
33
(e) Money
held in trust by the Indenture Trustee need not be segregated from other
funds
except to the extent required by law or the terms of this Indenture or the
Owner
Trust Agreement.
(f) No
provision of this Indenture shall require the Indenture Trustee to expend
or
risk its own funds or otherwise incur financial liability in the performance
of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
(g) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be subject to the
provisions of this Section and to the provisions of the TIA.
Section
6.02 Rights
of Indenture Trustee.
j)
The
Indenture Trustee may rely on any document believed by it to be genuine and
to
have been signed or presented by the proper person. The Indenture Trustee
need
not investigate any fact or matter stated in the document.
(b) Before
the Indenture Trustee acts or refrains from acting, it may require an Officer's
Certificate or an Opinion of Counsel. The Indenture Trustee shall not be
liable
for any action it takes or omits to take in good faith in reliance on an
Officer's Certificate or Opinion of Counsel.
(c) The
Indenture Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys
or a
custodian or nominee, and the Indenture Trustee shall not be responsible
for any
misconduct or negligence on the part of, or for the supervision of, any such
agent, attorney, custodian or nominee appointed with due care by it
hereunder.
(d) The
Indenture Trustee shall not be liable for any action it takes or omits to
take
in good faith which it believes to be authorized or within its rights or
powers;
provided, however, that the Indenture Trustee's conduct does not constitute
willful misconduct, negligence or bad faith.
(e) The
Indenture Trustee may consult with counsel, and the advice or opinion of
counsel
with respect to legal matters relating to this Indenture and the Notes shall
be
full and complete authorization and protection from liability in respect
to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
Section
6.03 Individual
Rights of Indenture Trustee.
The
Indenture Trustee in its individual or any other capacity may become the
owner
or pledgee of Notes and may otherwise deal with the Issuing Entity or its
Affiliates with the same rights it would have if it were not Indenture Trustee.
Any Note Registrar, coregistrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and
6.12.
Section
6.04 Indenture
Trustee's Disclaimer.
The
Indenture Trustee shall not be (i) responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, (ii) accountable
for the Issuing Entity's use of the proceeds from the Notes or (iii) responsible
for any statement of the Issuing Entity or any other Person in the Indenture
or
in any document issued in connection with the sale of the Notes or in the
Notes
other than the Indenture Trustee's certificate of authentication.
34
Section
6.05 Notice
of Event Of Default.
The Indenture Trustee shall mail to each Noteholder notice of the Event of
Default within 90 days after it occurs. Except in the case of an Event of
Default in payment of principal of or interest on any Note, the Indenture
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
Section
6.06 Reports
by Indenture Trustee to Holders.
The
Indenture Trustee shall deliver to each Noteholder such information as may
be
required to enable such holder to prepare its federal and state income tax
returns including without limitation Form 1099, to the extent such form is
required by law. In addition, upon the Issuing Entity's written request,
the
Indenture Trustee shall promptly furnish information reasonably requested
by the
Issuing Entity that is reasonably available to the Indenture Trustee to enable
the Issuing Entity to perform its federal and state income tax reporting
obligations.
Section
6.07 Compensation
and Indemnity.
The
Issuing Entity shall pay to the Indenture Trustee on each Payment Date
reasonable compensation for its services. The Indenture Trustee shall be
compensated and indemnified by the Seller in accordance with Section 4(b)
of the
Administration Agreement, and all amounts owing to the Indenture Trustee
hereunder in excess of such amount shall be paid solely as provided in Section
3.05 hereof (subject to the priorities set forth therein). The Indenture
Trustee's compensation shall not be limited by any law on compensation of
a
trustee of an express trust. The Issuing Entity shall reimburse the Indenture
Trustee for all Trustee Additional Expenses, in addition to the compensation
for
its services. The Issuing Entity shall indemnify the Indenture Trustee against
any and all loss, liability or expense (including attorneys' fees) incurred
by
it in connection with the administration of this trust and the performance
of
its duties hereunder. The Indenture Trustee shall notify the Issuing Entity
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee to so notify the Issuing Entity shall not relieve the Issuing Entity
of
its obligations hereunder. The Issuing Entity shall defend any such claim,
and
the Indenture Trustee may have separate counsel and the Issuing Entity shall
pay
the reasonable fees and expenses of such counsel. The Issuing Entity is not
obligated to reimburse any expense or indemnify against any loss, liability
or
expense incurred by the Indenture Trustee through the Indenture Trustee's
own
willful misconduct, negligence or bad faith.
The
Issuing Entity's payment obligations to the Indenture Trustee pursuant to
this
Section 6.07 shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of an Event of Default with
respect
to the Issuing Entity, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
Section
6.08 Replacement
of Indenture Trustee.
No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section 6.08.
No
termination of the Indenture Trustee without cause will be effective unless
the
costs and expenses of such Indenture Trustee have been reimbursed in connection
with such removal. The Indenture Trustee may resign at any time by so notifying
the Issuing Entity. The Holders of a majority of Note Balances of the Notes
may
remove the Indenture Trustee by so notifying the Indenture Trustee and may
appoint a successor Indenture Trustee. The Issuing Entity shall remove the
Indenture Trustee if:
35
(i) the
Indenture Trustee fails to comply with Section 6.11;
(ii) the
Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a
receiver or other public officer takes charge of the Indenture Trustee or
its
property; or
(iv) the
Indenture Trustee otherwise becomes incapable of acting.
If
the
Indenture Trustee resigns or is removed or if a vacancy exists in the office
of
the Indenture Trustee for any reason (the Indenture Trustee in such event
being
referred to herein as the retiring Indenture Trustee), the Issuing Entity
shall
promptly appoint a successor Indenture Trustee. In addition, the Indenture
Trustee will resign to avoid being directly or indirectly controlled by the
Issuing Entity.
A
successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuing Entity.
Thereupon, the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the
rights,
powers and duties of the Indenture Trustee under this Indenture. The successor
Indenture Trustee shall mail a notice of its succession to Noteholders. The
retiring Indenture Trustee shall promptly transfer all property held by it
as
Indenture Trustee to the successor Indenture Trustee.
If
a
successor Indenture Trustee does not take office within 60 days after the
retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuing Entity or the Holders of a majority of Note Balances
of the
Notes may petition any court of competent jurisdiction for the appointment
of a
successor Indenture Trustee.
If
the
Indenture Trustee fails to comply with Section 6.11, any Noteholder may petition
any court of competent jurisdiction for the removal of the Indenture Trustee
and
the appointment of a successor Indenture Trustee.
Notwithstanding
the replacement of the Indenture Trustee pursuant to this Section, the Issuing
Entity's obligations under Section 6.07 shall continue for the benefit of
the
retiring Indenture Trustee.
Section
6.09 Successor
Indenture Trustee by Xxxxxx.
If the
Indenture Trustee consolidates with, merges or converts into, or transfers
all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided, that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agencies written notice of any such transaction after the Closing
Date.
36
In
case
at the time such successor or successors by merger, conversion or consolidation
to the Indenture Trustee shall succeed to the trusts created by this Indenture
any of the Notes shall have been authenticated but not delivered, any such
successor to the Indenture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and
in case
at that time any of the Notes shall not have been authenticated, any successor
to the Indenture Trustee may authenticate such Notes either in the name of
any
predecessor hereunder or in the name of the successor to the Indenture Trustee;
and in all such cases such certificates shall have the full force which it
is
anywhere in the Notes or in this Indenture provided that the certificate
of the
Indenture Trustee shall have.
Section
6.10 Appointment
of Co-Indenture Trustee or Separate Indenture Trustee.
k)
Notwithstanding any other provisions of this Indenture, at any time, for
the
purpose of meeting any legal requirement of any jurisdiction in which any
part
of the Trust Estate may at the time be located, the Indenture Trustee shall
have
the power and may execute and deliver all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Owner Trust, and to vest in such Person
or
Persons, in such capacity and for the benefit of the Noteholders, such title
to
the Trust Estate, or any part thereof, and, subject to the other provisions
of
this Section, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any cotrustee or separate trustee shall be required under
Section
6.08 hereof.
(b) Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by
the
Indenture 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 Indenture 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 Indenture 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 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 Indenture Trustee;
(ii) no
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
(iii) the
Indenture Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee.
37
(c) Any
notice, request or other writing given to the Indenture Trustee shall be
deemed
to have been given to each of the then separate trustees and co-trustees,
as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VI. 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 Indenture Trustee
or
separately, as may be provided therein, subject to all the provisions of
this
Indenture, specifically including every provision of this Indenture relating
to
the conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any
separate trustee or co-trustee may at any time constitute the Indenture Trustee,
its agent or attorney-in-fact with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
the
Indenture Trustee, to the extent permitted by law, without the appointment
of a
new or successor trustee.
Section
6.11 Eligibility;
Disqualification.
The
Indenture Trustee shall at all times satisfy the requirements of TIA ss.
310(a).
The Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and it or its parent shall have a long-term debt rating of A2 or better by
Xxxxx'x. The Indenture Trustee shall comply with TIA ss. 310(b), including
the
optional provision permitted by the second sentence of TIA ss. 310(b)(9);
provided, however, that there shall be excluded from the operation of TIA
ss.
310(b)(1) any indenture or indentures under which other securities of the
Issuing Entity are outstanding if the requirements for such exclusion set
forth
in TIA ss. 310(b)(1) are met.
Section
6.12 Preferential
Collection of Claims Against Issuing Entity.
The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned
or
been removed shall be subject to TIA ss. 311(a) to the extent
indicated.
Section
6.13 Representations
and Warranties.
The
Indenture Trustee hereby represents that:
(i) The
Indenture Trustee is duly organized, validly existing and in good standing
under
the laws of the State of New York 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
Indenture Trustee has the power and authority to execute and deliver this
Indenture and to carry out its terms; and the execution, delivery and
performance of this Indenture have been duly authorized by the Indenture
Trustee
by all necessary corporate action.
38
(iii) The
consummation of the transactions contemplated by this Indenture and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice
or
lapse of time) a default under, the articles of organization or bylaws of
the
Indenture Trustee or any agreement or other instrument to which the Indenture
Trustee is a party or by which it is bound which conflict or breach would
have a
materially adverse impact on the ability of the Indenture Trustee to perform
its
obligations under the Basic Documents to which it is a party.
(iv) To
the
Indenture Trustee's best knowledge, there are no proceedings or investigations
pending or threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Indenture
Trustee or its properties: (A) asserting the invalidity of this Indenture
(B)
seeking to prevent the consummation of any of the transactions contemplated
by
this Indenture or (C) seeking any determination or ruling that might materially
and adversely affect the performance by the Indenture Trustee of its obligations
under, or the validity or enforceability of, this Indenture.
(v) The
Indenture Trustee does not have notice of any adverse claim (as such terms
are
used in Delaware UCC Section 8-302) with respect to the Loans.
Section
6.14 Directions
to Indenture Trustee.
The
Indenture Trustee is hereby directed:
(a) to
accept
the pledge of the Loans and hold the assets of the Trust in trust for the
Noteholders;
(b) to
authenticate and deliver the Notes substantially in the form prescribed by
Exhibit A in accordance with the terms of this Indenture; and
(c) to
take
all other actions as shall be required to be taken by the terms of this
Indenture.
Section
6.15 Indenture
Trustee May Own Securities.
The
Indenture Trustee, in its individual or any other capacity may become the
owner
or pledgee of Securities with the same rights it would have if it were not
Indenture Trustee.
Section
6.16 Compliance
with Withholding Requirements.
Notwithstanding any other provision of this Indenture, the Indenture Trustee
shall comply with all federal withholding requirements respecting payments
to
Noteholders of interest that the Indenture Trustee reasonably believes are
applicable under the Code. The consent of Noteholders shall not be required
for
such withholding.
ARTICLE
VII
Noteholders'
Lists and Reports
Section
7.01 Issuing
Entity To Furnish Indenture Trustee Names and Addresses of Noteholders. The
Issuing Entity will furnish or cause to be furnished to the Indenture Trustee
(a) not more than five days after each Record Date, a list, in such form
as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date and, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by
the
Issuing Entity of any such request, a list of similar form and content as
of a
date not more than 10 days prior to the time such list is furnished; provided,
however, that so long as the Indenture Trustee is the Note Registrar, no
such
list shall be required to be furnished.
39
Section
7.02 Preservation
of Information; Communications to Noteholders.
l)
The
Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in
the
most recent list furnished to the Indenture Trustee as provided in Section
7.01
and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy
any
list furnished to it as provided in such Section 7.01 upon receipt of a new
list
so furnished.
(b) Noteholders
may communicate pursuant to TIA ss. 312(b) with other Noteholders with respect
to their rights under this Indenture or under the Notes.
(c) The
Issuing Entity, the Indenture Trustee and the Note Registrar shall have the
protection of TIAss.312(c).
Section
7.03 Reports
by Issuing Entity.
m)
The
Issuing Entity shall:
(i) file
with
the Indenture Trustee, within 15 days after the Issuing Entity is required
to
file the same with the Commission, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any
of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) that the Issuing Entity may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file
with
the Indenture Trustee, and the Commission in accordance with rules and
regulations prescribed from time to time by the Commission such additional
information, documents and reports with respect to compliance by the Issuing
Entity with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(iii) supply
to
the Indenture Trustee (and the Indenture Trustee shall transmit by mail to
all
Noteholders described in TIA ss. 313(c)) such summaries of any information,
documents and reports required to be filed by the Issuing Entity pursuant
to
clauses (i) and (ii) of this Section 7.03(a) and by rules and regulations
prescribed from time to time by the Commission.
(b) Unless
the Issuing Entity otherwise determines, the fiscal year of the Issuing Entity
shall end on December 31 of each year.
Section
7.04 Reports
by Indenture Trustee.
If
required by TIA ss. 313(a), within 60 days after each January 1 beginning
with
January 1, ____, the Indenture Trustee shall mail to each Noteholder as required
by TIA ss. 313(c) a brief report dated as of such date that complies with
TIA
ss. 313(a). The Indenture Trustee also shall comply with TIA ss.
313(b).
40
A
copy of
each report at the time of its mailing to Noteholders shall be filed by the
Indenture Trustee with the Commission and each stock exchange, if any, on
which
the Notes are listed. The Issuing Entity shall notify the Indenture Trustee
if
and when the Notes are listed on any stock exchange.
Section
7.05 Reports
Filed with Securities and Exchange Commission.
(a) (i) Within
15
days after each Distribution Date, the Indenture Trustee shall, in accordance
with industry standards, file with the Commission via the Electronic Data
Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D,
signed by the Servicer, with a copy of the monthly statement to be furnished
by
the Indenture Trustee to the Noteholders for such Distribution Date and
detailing all data elements specified in Item 1121(a) of Regulation AB as
part
of the monthly statement; provided that the Indenture Trustee shall have
received no later than 2 days prior to the date such Distribution Report
on Form
10-D is required to be filed, all information required to be provided to
the
Indenture Trustee as described in clause (a)(iv) below.
(ii) The
Indenture Trustee will prepare and file Current Reports on Form 8-K in respect
of the Trust, signed by the Servicer, as and when required; provided, that,
the
Indenture Trustee shall have received no later than one Business Day prior
to
the filing deadline for such Current Report, all information, data, and exhibits
required to be provided or filed with such Current Report and required to
be
provided to the Indenture Trustee as described in clause (a)(iv)
below.
(iii) Prior
to
January 30 in each year commencing in 2007, the Indenture Trustee shall,
in
accordance with industry standards, file a Form 15 Suspension Notice with
respect to the Trust Fund, if applicable. Prior to (x) March 15, 2007 and
(y)
unless and until a Form 15 Suspension Notice shall have been filed, prior
to
March 15 of each year thereafter, the Servicer shall provide the Indenture
Trustee with an Annual Compliance Statement, together with a copy of the
Assessment of Compliance and Attestation Report to be delivered by the Servicer
pursuant to the Servicing Agreement (including with respect to any subservicer
or subcontractor, if required to be filed). Prior to (x) March 31, 2007 and
(y)
unless and until a Form 15 Suspension Notice shall have been filed, March
31 of
each year thereafter, the Indenture Trustee shall, subject to subsection
(d)
below, file a Form 10-K, in substance conforming to industry standards, with
respect to the Trust Fund. Such Form 10-K shall include the Assessment of
Compliance, Attestation Report, Annual Compliance Statements and other
documentation provided by the Servicer pursuant to the Servicing Agreement
(including with respect to any subservicer or subcontractor, if required
to be
filed) and with respect to the Indenture Trustee and the Custodian, and the
Form
10-K certification signed by the Depositor; provided that the Indenture Trustee
shall have received no later than March 15 of each calendar year prior to
the
filing deadline for the Form 10-K all information, data and exhibits required
to
be provided or filed with such Form 10-K and required to be provided to the
Indenture Trustee as described in clause (a)(iv) below.
(iv) As
to
each item of information required to be included in any Form 10-D, Form 8-K
or
Form 10-K, the Indenture Trustee's obligation to include the information
in the
applicable report is subject to receipt from the entity that is indicated
in
Exhibit __ as the responsible party for providing that information, if other
than the Indenture Trustee, as and when required as described above. Each
of the
Servicer, Seller and Depositor hereby agree to notify and provide to the
Indenture Trustee all information that is required to be included in any
Form
10-D, Form 8-K or Form 10-K, with respect to which that entity is indicated
in
Exhibit __ as the responsible party for providing that information. The Swap
Provider will be obligated pursuant to the Swap Agreement to provide to the
Indenture Trustee any information that may be required to be included in
any
Form 10-D, Form 8-K or Form 10-K. The Indenture Trustee shall be responsible
for
determining the significance percentage (as defined in Item 1115 of Regulation
AB) of the Swap Provider at any time. The Servicer shall be responsible for
determining the pool concentration applicable to any subservicer or originator
at any time, for purposes of disclosure as required by Items 1117 and 1119
of
Regulation AB.
41
The
Depositor hereby grants to the Servicer a limited power of attorney to sign
each
Form 10-D, Form 8-K and Form 10-K on behalf of the Depositor. Such power
of
attorney shall continue until either the earlier of (x) receipt by the Servicer
from the Depositor of written termination of such power of attorney and (y)
the
termination of the Trust Fund. The Depositor agrees to promptly furnish to
the
Indenture Trustee, from time to time upon request, such further information,
reports and financial statements within its control related to this Agreement,
the Mortgage Loans as the Indenture Trustee reasonably deems appropriate
to
prepare and file all necessary reports with the Commission. The Indenture
Trustee shall have no responsibility to file any items other than those
specified in this Section 7.05; provided, however, the Indenture Trustee
will
cooperate with the Depositor in connection with any additional filings with
respect to the Trust Fund as the Depositor deems necessary under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Copies of all reports
filed by the Indenture Trustee under the Exchange Act shall be sent to: the
Depositor c/o _____________, Attn: _____________, _____________, _____________,
_____________. Fees and expenses incurred by the Indenture Trustee in connection
with this Section 7.05 shall not be reimbursable from the Trust
Fund.
(b) In
connection with the filing of any 10-K hereunder, the Indenture Trustee shall
sign a certification (in the form attached hereto as Exhibit __) for the
Depositor regarding certain aspects of the Form 10-K certification signed
by the
Depositor, provided, however, that the Indenture Trustee shall not be required
to undertake an analysis of any accountant’s report attached as an exhibit to
the Form 10-K.
(c) In
connection with the filing of any 10-K hereunder, the Servicer shall sign
a
certification (in the form attached hereto as Exhibit __) for the benefit
of the
Depositor regarding certain aspects of the Form 10-K certification signed
by the
Depositor, provided, however, that the Servicer shall not be required to
undertake an analysis of any accountant’s report attached as an exhibit to the
Form 10-K.
(d) The
Indenture Trustee shall indemnify and hold harmless the Depositor and its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
a
breach of the Indenture Trustee’s obligations under this Section 7.05 or the
Indenture Trustee’s negligence, bad faith or willful misconduct in connection
therewith.
42
The
Depositor shall indemnify and hold harmless the Indenture Trustee and its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
a
breach of the obligations of the Depositor under this Section 7.05 or the
Depositor’s negligence, bad faith or willful misconduct in connection
therewith.
The
Servicer shall indemnify and hold harmless the Indenture Trustee and the
Depositor and their respective officers, directors and affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Servicer
under
this Section 7.05 or the Servicer’s negligence, bad faith or willful misconduct
in connection therewith.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor or the Indenture Trustee, as applicable, then the
defaulting party, in connection with a breach of its respective obligations
under this Section 7.05 or its respective negligence, bad faith or willful
misconduct in connection therewith, agrees that it shall contribute to the
amount paid or payable by the other parties as a result of the losses, claims,
damages or liabilities of the other party in such proportion as is appropriate
to reflect the relative fault and the relative benefit of the Depositor on
the
one hand and the Indenture Trustee on the other.
(e) Nothing
shall be construed from the foregoing subsections (a), (b) and (c) to require
the Indenture Trustee or any officer, director or Affiliate thereof to sign
any
Form 10-K or any certification contained therein. Furthermore, the inability
of
the Indenture Trustee to file a Form 10-K as a result of the lack of required
information as set forth in Section 7.05(a) or required signatures on such
Form
10-K or any certification contained therein shall not be regarded as a breach
by
the Indenture Trustee of any obligation under this Agreement.
This
Section 7.05 may be amended without the consent of the Noteholders.
ARTICLE
VIII
Accounts,
Disbursements and Releases
Section
8.01 Collection
of Money.
Except
as otherwise expressly provided herein, the Indenture Trustee may demand
payment
or delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it
as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Trust Estate, the
Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
43
Section
8.02 Trust
Accounts.
n)
On or
prior to the Closing Date, the Indenture Trustee shall establish and maintain,
in the name of the Indenture Trustee, for the benefit of the Noteholders
and the
Certificate Paying Agent, on behalf of the Certificateholders, the Payment
Account as provided in Section 3.01 of this Indenture.
(b) All
monies deposited from time to time in the Payment Account pursuant to the
Servicing Agreement and all deposits therein pursuant to this Indenture are
for
the benefit of the Noteholders and the Certificate Paying Agent, on behalf
of
the Certificateholders.
(c) Any
institution maintaining the Payment Account shall at the direction of the
Indenture Trustee invest the funds in such account in Permitted Investments,
each of which shall mature not later than (i) the Business Day immediately
preceding the date on which such funds are required to be withdrawn from
such
account pursuant to this Indenture, if a Person other than the Indenture
Trustee
is the obligor thereon, and (ii) no later than the date on which such funds
are
required to be withdrawn from such account pursuant to this Agreement, if
the
Indenture Trustee is the obligor thereon and shall not be sold or disposed
of
prior to its maturity. All income and gain realized from any such investment
as
well as any interest earned on deposits in the Payment Account shall be for
the
benefit of the Indenture Trustee. The Indenture shall deposit in the Payment
Account an amount equal to the amount of any loss incurred in respect of
any
such investment immediately upon realization of such loss without right of
reimbursement.
(d) On
each
Payment Date, the Indenture Trustee shall distribute all amounts on deposit
in
the Payment Account to Noteholders in respect of the Notes and in its capacity
as Certificate Paying Agent to Certificateholders in the order of priority
set
forth in Section 3.05 (except as otherwise provided in Section
5.04(b)).
Section
8.03 Officer's
Certificate.
The
Indenture Trustee shall receive at least seven days notice when requested
by the
Issuing Entity to take any action pursuant to Section 8.05(a), accompanied
by
copies of any instruments to be executed, and the Indenture Trustee shall
also
require, as a condition to such action, an Officer's Certificate, in form
and
substance satisfactory to the Indenture Trustee, stating the legal effect
of any
such action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been complied
with.
Section
8.04 Termination
Upon Payment to Noteholders.
This
Indenture and the respective obligations and responsibilities of the Issuing
Entity and the Indenture Trustee created hereby shall terminate upon the
payment
to the Noteholders, the Certificate Paying Agent (on behalf of the
Certificateholders) and the Indenture Trustee of all amounts required to
be
distributed pursuant to Article III.
Section
8.05 Release
of Trust Estate.
o)
Subject
to the payment of its fees and expenses, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that
are not
inconsistent with the provisions of this Indenture. No party relying upon
an
instrument executed by the Indenture Trustee as provided in Article VIII
hereunder shall be bound to ascertain the Indenture Trustee's authority,
inquire
into the satisfaction of any conditions precedent, or see to the application
of
any monies.
44
(b) The
Indenture Trustee shall, at such time as (i) there are no Notes Outstanding
and
(ii) all sums due the Indenture Trustee pursuant to this Indenture have been
paid, release any remaining portion of the Trust Estate that secured the
Notes
from the lien of this Indenture.
(c) The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.05 only upon receipt of a request from the Issuing
Entity accompanied by an Officers' Certificate.
Section
8.06 Surrender
of Notes Upon Final Payment.
By
acceptance of any Note, the Holder thereof agrees to surrender such Note
to the
Indenture Trustee promptly, prior to such Noteholder's receipt of the final
payment thereon.
ARTICLE
IX
Section
9.01 Supplemental
Indentures Without Consent of Noteholders.
p)
Without
the consent of the Holders of any Notes but with prior notice to the Rating
Agencies, the Issuing Entity and the Indenture Trustee, when authorized by
an
Issuing Entity Request, at any time and from time to time, may enter into
one or
more indentures supplemental hereto (which shall conform to the provisions
of
the Trust Indenture Act as in force at the date of the execution thereof),
in
form satisfactory to the Indenture Trustee, for any of the following
purposes:
(i) to
correct or amplify the description of any property at any time subject to
the
lien of this Indenture, or better to assure, convey and confirm unto the
Indenture Trustee any property subject or required to be subjected to the
lien
of this Indenture, or to subject to the lien of this Indenture additional
property;
(ii) to
evidence the succession, in compliance with the applicable provisions hereof,
of
another person to the Issuing Entity, and the assumption by any such successor
of the covenants of the Issuing Entity herein and in the Notes
contained;
(iii) to
add to
the covenants of the Issuing Entity, for the benefit of the Holders of the
Notes, or to surrender any right or power herein conferred upon the Issuing
Entity;
(iv) to
convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee;
(v) to
cure
any ambiguity, to correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provision
herein
or in any supplemental indenture;
45
(vi) to
make
any other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, that such action shall
not
materially and adversely affect the interests of the Holders of the
Notes;
(vii) to
evidence and provide for the acceptance of the appointment hereunder by a
successor trustee with respect to the Notes and to add to or change any of
the
provisions of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the
requirements of Article VI; or
(viii) to
modify, eliminate or add to the provisions of this Indenture to such extent
as
shall be necessary to effect the qualification of this Indenture under the
TIA
or under any similar federal statute hereafter enacted and to add to this
Indenture such other provisions as may be expressly required by the
TIA;
provided,
however, that no such indenture supplements shall be entered into unless
the
Indenture Trustee shall have received an opinion of counsel of the Issuing
Entity that entering into such indenture supplement will not (A) have any
material adverse tax consequences to the Noteholders and (B) adversely affect
in
any material respect the interests of the Certificateholder.
The
Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The
Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity
Request, may, also without the consent of any of the Holders of the Notes
but
with prior notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture.
(c) The
Issuing Entity and the Indenture Trustee shall, as directed by the Holders
of
Certificates which represent not less than 100% of the Certificate Percentage
Interests thereof, enter into an indenture or indentures supplemental hereto
for
the purpose of providing for the issuance of one or more additional Classes
of
Notes entitled to payments derived solely from all or a portion of the payments
to which the Certificate issued on the Closing Date pursuant to the Owner
Trust
Agreement are entitled; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, (i) adversely affect in any material
respect
the interests of any Noteholder or (ii) cause the Issuing Entity to be subject
to an entity level tax. Each such Class of Notes shall be a non-recourse
obligation of the Issuing Entity and shall be entitled to interest and principal
in such amounts, and to such security for the repayment thereof, as shall
be
specified in such amendment or amendments. Promptly after the execution by
the
Issuing Entity and the Indenture Trustee of any amendments pursuant to this
Section or the creation of a new Indenture and the issuance of the related
Class
or Classes of Notes, the Issuing Entity shall require the Indenture Trustee
to
give notice to the Holders of the Notes and the Rating Agencies setting forth
in
general terms the substance of the provisions of such amendment. Any failure
of
the Indenture Trustee to provide such notice as is required under this
paragraph, or any defect therein, shall not, however, in any way impair or
affect the validity of such amendment or any Class of Notes issued pursuant
thereto.
46
Section
9.02 Supplemental
Indentures with Consent of Noteholders.
The
Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity
Request, also may, with prior notice to the Rating Agencies and with the
consent
of the Holders of not less than a majority of the Note Balances of the Notes
affected thereby, by Act of such Holders delivered to the Issuing Entity
and the
Indenture Trustee, enter into an indenture or indentures supplemental hereto
for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided
however, that no such supplemental indenture shall, without the consent of
the
Holder of each Note affected thereby:
(i) change
the date of payment of any installment of principal of or interest on any
Note,
or reduce the principal amount thereof or the interest rate thereon, change
the
provisions of this Indenture relating to the application of collections on,
or
the proceeds of the sale of, the Trust Estate to payment of principal of
or
interest on the Notes, or change any place of payment where, or the coin
or
currency in which, any Note or the interest thereon is payable, or impair
the
right to institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in Article
V,
to the payment of any such amount due on the Notes on or after the respective
due dates thereof;
(ii) reduce
the percentage of the Note Balances of the Notes, the consent of the Holders
of
which is required for any such supplemental indenture, or the consent of
the
Holders of which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify
or
alter the provisions of the proviso to the definition of the term “Outstanding”
or modify or alter the exception in the definition of the term
“Holder”;
(iv) reduce
the percentage of the Note Balances of the Notes required to direct the
Indenture Trustee to direct the Issuing Entity to sell or liquidate the Trust
Estate pursuant to Section 5.04;
(v) modify
any provision of this Section 9.02 except to increase any percentage specified
herein or to provide that certain additional provisions of this Indenture
or the
Basic Documents cannot be modified or waived without the consent of the Holder
of each Note affected thereby;
(vi) modify
any of the provisions of this Indenture in such manner as to affect the
calculation of the amount of any payment of interest or principal due on
any
Note on any Payment Date (including the calculation of any of the individual
components of such calculation); or
(vii) permit
the creation of any lien ranking prior to or on a parity with the lien of
this
Indenture with respect to any part of the Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on
any
property at any time subject hereto or deprive the Holder of any Note of
the
security provided by the lien of this Indenture; and provided, further, that
such action shall not, as evidenced by an Opinion of Counsel, cause the Issuing
Entity to be subject to an entity level tax.
47
and
provided, further, that no such indenture supplements shall be entered into
unless the Indenture Trustee shall have received an Opinion of Counsel that
entering into such indenture supplement will not adversely affect in any
material respect the interests of the Certificateholder.
The
Indenture Trustee may in its discretion determine whether or not any Notes
would
be affected by any supplemental indenture and any such determination shall
be
conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Indenture Trustee shall not be
liable
for any such determination made in good faith.
It
shall
not be necessary for any Act of Noteholders (as defined in Section 10.03)
under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly
after the execution by the Issuing Entity and the Indenture Trustee of any
supplemental indenture pursuant to this Section 9.02, the Indenture Trustee
shall mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of
such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section
9.03 Execution
of Supplemental Indentures.
In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the
trusts
created by this Indenture, the Indenture Trustee shall be entitled to receive,
and subject to Sections 6.01 and 6.02, shall be fully protected in relying
upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Indenture Trustee may,
but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise.
Section
9.04 Effect
of Supplemental Indenture.
Upon
the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and shall be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and
immunities under this Indenture of the Indenture Trustee, the Issuing Entity
and
the Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all
the terms and conditions of any such supplemental indenture shall be and
be
deemed to be part of the terms and conditions of this Indenture for any and
all
purposes.
Section
9.05 Conformity
with Trust Indenture Act.
Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture
Act
as then in effect so long as this Indenture shall then be qualified under
the
Trust Indenture Act.
48
Section
9.06 Reference
in Notes to Supplemental Indentures.
Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee
shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuing Entity or the
Indenture Trustee shall so determine, new Notes so modified as to conform,
in
the opinion of the Indenture Trustee and the Issuing Entity, to any such
supplemental indenture may be prepared and executed by the Issuing Entity
and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes.
ARTICLE
X
Section
10.01 Compliance
Certificates and Opinions, Etc.
q)
Upon any
application or request by the Issuing Entity to the Indenture Trustee to
take
any action under any provision of this Indenture, the Issuing Entity shall
furnish to the Indenture Trustee (i) an Officer's Certificate stating that
all
conditions precedent, if any, provided for in this Indenture relating to
the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have
been complied with, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by
any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1)
a
statement that each signatory of such certificate or opinion has read or
has
caused to be read such covenant or condition and the definitions herein relating
thereto;
(2)
a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(3)
a
statement that, in the opinion of each such signatory, such signatory has
made
such examination or investigation as is necessary to enable such signatory
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with;
(4)
a
statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with; and
(5)
if
the Signer of such Certificate or Opinion is required to be Independent,
the
Statement required by the definition of the term “Independent”.
49
(b) i)
Prior to
the deposit of any Collateral or other property or securities with the Indenture
Trustee that is to be made the basis for the release of any property or
securities subject to the lien of this Indenture, the Issuing Entity shall,
in
addition to any obligation imposed in Section 10.01(a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such certificate as to the
fair
value (within 90 days of such deposit) to the Issuing Entity of the Collateral
or other property or securities to be so deposited.
(ii) Whenever
the Issuing Entity is required to furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of any signer thereof as to
the
matters described in clause (i) above, the Issuing Entity shall also deliver
to
the Indenture Trustee an Independent Certificate as to the same matters,
if the
fair value to the Issuing Entity of the securities to be so deposited and
of all
other such securities made the basis of any such withdrawal or release since
the
commencement of the then-current fiscal year of the Issuing Entity, as set
forth
in the certificates delivered pursuant to clause (i) above and this clause
(ii),
is 10% or more of the Note Balances of the Notes, but such a certificate
need
not be furnished with respect to any securities so deposited, if the fair
value
thereof to the Issuing Entity as set forth in the related Officer's Certificate
is less than $25,000 or less than one percent of the Note Balances of the
Notes.
(iii) Whenever
any property or securities are to be released from the lien of this Indenture,
the Issuing Entity shall also furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of the
property or securities proposed to be released and stating that in the opinion
of such person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(iv) Whenever
the Issuing Entity is required to furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of any signer thereof as to
the
matters described in clause (iii) above, the Issuing Entity shall also furnish
to the Indenture Trustee an Independent Certificate as to the same matters
if
the fair value of the property or securities and of all other property, other
than property as contemplated by clause (v) below or securities released
from
the lien of this Indenture since the commencement of the then-current calendar
year, as set forth in the certificates required by clause (iii) above and
this
clause (iv), equals 10% or more of the Note Balances of the Notes, but such
certificate need not be furnished in the case of any release of property
or
securities if the fair value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the then Note
Balances of the Notes.
(v) Notwithstanding
any provision of this Indenture, the Issuing Entity may, without compliance
with
the requirements of the other provisions of this Section 10.01, (A) collect,
sell or otherwise dispose of the Loans as and to the extent permitted or
required by the Basic Documents or (B) make cash payments out of the Payment
Account as and to the extent permitted or required by the Basic Documents,
so
long as the Issuing Entity shall deliver to the Indenture Trustee every six
months, commencing June 30, ____, an Officer's Certificate of the Issuing
Entity
stating that all the dispositions of Collateral described in clauses (A)
or (B)
above that occurred during the preceding six calendar months were in the
ordinary course of the Issuing Entity's business and that the proceeds thereof
were applied in accordance with the Basic Documents.
50
Section
10.02 Form
of Documents Delivered to Indenture Trustee.
In any
case where several matters are required to be certified by, or covered by
an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that
they
be so certified or covered by only one document, but one such Person may
certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an Authorized Officer of the Issuing Entity may
be
based, insofar as it relates to legal matters, upon a certificate or opinion
of,
or representations by, counsel, unless such officer knows, or in the exercise
of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based
are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or
opinion of, or representations by, an officer or officers of the Seller or
the
Issuing Entity, stating that the information with respect to such factual
matters is in the possession of the Seller or the Issuing Entity, unless
such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Whenever
in this Indenture, in connection with any application or certificate or report
to the Indenture Trustee, it is provided that the Issuing Entity shall deliver
any document as a condition of the granting of such application, or as evidence
of the Issuing Entity's compliance with any term hereof, it is intended that
the
truth and accuracy, at the time of the granting of such application or at
the
effective date of such certificate or report (as the case may be), of the
facts
and opinions stated in such document shall in such case be conditions precedent
to the right of the Issuing Entity to have such application granted or to
the
sufficiency of such certificate or report. The foregoing shall not, however,
be
construed to affect the Indenture Trustee's right to rely upon the truth
and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section
10.03 Acts
of Noteholders.
r)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Noteholders may
be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the Issuing
Entity. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the
Noteholders signing such instrument or instruments. Proof of execution of
any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive
in
favor of the Indenture Trustee and the Issuing Entity, if made in the manner
provided in this Section 10.03.
51
(b) The
fact
and date of the execution by any person of any such instrument or writing
may be
proved in any manner that the Indenture Trustee deems sufficient.
(c) The
ownership of Notes shall be proved by the Note Registrar.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Notes shall bind the Holder of every Note issued
upon the registration thereof or in exchange therefor or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuing Entity in reliance thereon, whether or not notation
of
such action is made upon such Note.
Section
10.04 Notices,
Etc., to Indenture Trustee, Issuing Entity and Rating Agencies.
Any
request, demand, authorization, direction, notice, consent, waiver or Act
of
Noteholders or other documents provided or permitted by this Indenture shall
be
in writing and if such request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders is to be made upon, given or furnished
to
or filed with:
(i) the
Indenture Trustee by any Noteholder or by the Issuing Entity shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or
with the Indenture Trustee at the Corporate Trust Office. The Indenture Trustee
shall promptly transmit any notice received by it from the Noteholders to
the
Issuing Entity, or
(ii) the
Issuing Entity by the Indenture Trustee or by any Noteholder shall be sufficient
for every purpose hereunder if in writing and mailed first-class, postage
prepaid to the Issuing Entity addressed to: DEUTSCHE MORTGAGE SECURITIES,
INC.
TRUST SERIES ____-__, in care of [Name of Owner Trustee], or at any other
address previously furnished in writing to the Indenture Trustee by the Issuing
Entity. The Issuing Entity shall promptly transmit any notice received by
it
from the Noteholders to the Indenture Trustee.
Notices
required to be given to the Rating Agencies by the Issuing Entity, the Indenture
Trustee or the Owner Trustee shall be in writing, personally delivered or
mailed
by certified mail, return receipt requested, to (i) in the case of S&P, at
the following address: 00 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention Mortgage
Surveillance Monitoring and (ii) in the case of Moody's, at the following
address: Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance
Group; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
Section
10.05 Notices
to Noteholders; Waiver.
Where
this Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided)
if in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by
such event, at such Person's address as it appears on the Note Register,
not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Noteholders is
given
by mail, neither the failure to mail such notice nor any defect in any notice
so
mailed to any particular Noteholder shall affect the sufficiency of such
notice
with respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
52
Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Noteholders shall be filed with the Indenture Trustee but such
filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such a waiver.
In
case,
by reason of the suspension of regular mail service as a result of a strike,
work stoppage or similar activity, it shall be impractical to mail notice
of any
event to Noteholders when such notice is required to be given pursuant to
any
provision of this Indenture, then any manner of giving such notice as shall
be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving
of such notice.
Where
this Indenture provides for notice to the Rating Agencies, failure to give
such
notice shall not affect any other rights or obligations created hereunder,
and
shall not under any circumstance constitute an Event of Default.
Section
10.06 Alternate
Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuing Entity may enter into any agreement with any Holder
of a
Note providing for a method of payment, or notice by the Indenture Trustee
to
such Holder, that is different from the methods provided for in this Indenture
for such payments or notices. The Issuing Entity shall furnish to the Indenture
Trustee a copy of each such agreement and the Indenture Trustee shall cause
payments to be made and notices to be given in accordance with such
agreements.
Section
10.07 Conflict
with Trust Indenture Act.
If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions
of
the Trust Indenture Act, such required provision shall control.
The
provisions of TIA xx.xx. 310 through 317 that impose duties on any Person
(including the provisions automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether
or
not physically contained herein.
Section
10.08 Effect
of Headings.
The
Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
Section
10.09 Successors
and Assigns.
All
covenants and agreements in this Indenture and the Notes by the Issuing Entity
shall bind its successors and assigns, whether so expressed or not. All
agreements of the Indenture Trustee in this Indenture shall bind its successors,
co-trustees and agents.
Section
10.10 Separability.
In case
any provision in this Indenture or in the Notes shall be invalid, illegal
or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
53
Section
10.11 Benefits
of Indenture.
Nothing
in this Indenture or in the Notes, express or implied, shall give to any
Person,
other than the parties hereto and their successors hereunder, and the
Noteholders and any other party secured hereunder, and any other Person with
an
ownership interest in any part of the Trust Estate, any benefit or any legal
or
equitable right, remedy or claim under this Indenture.
Section
10.12 Legal
Holidays.
In any
case where the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after
any
such nominal date.
Section
10.13 GOVERNING
LAW. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE
OF NEW YORK, 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
10.14 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
10.15 Recording
of Indenture.
If this
Indenture is subject to recording in any appropriate public recording offices,
such recording is to be effected by the Issuing Entity and at its expense
accompanied by an Opinion of Counsel (which may be counsel to the Indenture
Trustee or any other counsel reasonably acceptable to the Indenture Trustee)
to
the effect that such recording is necessary either for the protection of
the
Noteholders or any other Person secured hereunder or for the enforcement
of any
right or remedy granted to the Indenture Trustee under this
Indenture.
Section
10.16 Issuing
Entity Obligation.
No
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the
Notes
or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Indenture Trustee or the
Owner
Trustee in its individual capacity, (ii) any owner of a beneficial interest
in
the Issuing Entity or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee
in its
individual capacity, any holder of a beneficial interest in the Issuing Entity,
the Owner Trustee or the Indenture Trustee or of any successor or assign
of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be
fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment
or call
owing to such entity. For all purposes of this Indenture, in the performance
of
any duties or obligations of the Issuing Entity hereunder, the Owner Trustee
shall be subject to, and entitled to the benefits of, the terms and provisions
of Article VI, VII and VIII of the Owner Trust Agreement.
54
Section
10.17 No
Petition.
The
Indenture Trustee, by entering into this Indenture, and each Noteholder,
by
accepting a Note, hereby covenant and agree that they will not at any time
prior
to the day one year and one day after the date this Indenture terminates
institute against the Depositor or the Issuing Entity, or join in any
institution against the Depositor or the Issuing Entity 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 Notes, this Indenture
or any
of the Basic Documents.
Section
10.18 Inspection.
The
Issuing Entity agrees that, on reasonable prior notice, it shall permit any
representative of the Indenture Trustee, during the Issuing Entity's normal
business hours, to examine all the books of account, records, reports and
other
papers of the Issuing Entity, to make copies and extracts therefrom, to cause
such books to be audited by Independent certified public accountants, and
to
discuss the Issuing Entity's affairs, finances and accounts with the Issuing
Entity's officers, employees, and Independent certified public accountants,
all
at such reasonable times and as often as may be reasonably requested. The
Indenture Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations
hereunder.
55
DEUTSCHE
MORTGAGE SECURITIES, INC.
TRUST
SERIES ____-__,
as
Issuing Entity
[Name
of
Owner Trustee], not in its individual
capacity
but solely as Owner Trustee
By:
_____________________________
Name:
Title:
[NAME
OF
INDENTURE TRUSTEE],
as
Indenture Trustee
By:
_____________________________
Name:
Title:
[NAME
OF
INDENTURE TRUSTEE] xxxxxx accepts the appointment as Paying Agent pursuant
to
Section 3.03 hereof and as Note Registrar pursuant to Section 4.02
hereof.
By:
_____________________________
Name:
Title:
STATE
OF
|
)
|
|
)
ss.:
|
||
COUNTY
OF
|
)
|
|
On
this
____ day of ________________, before me personally appeared ____________________
to me known, who being by me duly sworn, did depose and say, that he is the
______________________ of the Owner Trustee, one of the corporations described
in and which executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he signed his name thereto by like order.
_____________________________
Notary
Public
NOTARIAL
SEAL
STATE
OF
|
)
|
|
)
ss.:
|
||
COUNTY
OF
|
)
|
|
On
this
____ day of __________________, before me personally appeared
______________________, to me known, who being by me duly sworn, did depose
and
say, that she is the _____________________ of [Name of Indenture Trustee],
as
Indenture Trustee, one of the corporations described in and which executed
the
above instrument; that she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed
by
order of the Board of Directors of said corporation; and that he signed his
name
thereto by like order.
_____________________________
Notary
Public
NOTARIAL
SEAL
EXHIBIT
A-1
FORM
OF
CLASS A NOTES
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS
NOTE
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR,
THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE INDENTURE OR THE
BASIC DOCUMENTS.
A-1-1
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
Asset-Backed
Note
Class
A
|
Principal
Amount:$ _____________
|
Registered
|
|
Percentage
Interest: ___%
|
|
No.
___
|
Note
Interest Rate: ___%
|
CUSIP
NO. ___________
|
|
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__, a business trust duly organized
and existing under the laws of the State of Delaware (herein referred to
as the
“Issuing Entity”), for value received, hereby promises to pay to Cede & Co.
or registered assigns, the principal sum of $ ____________, payable on each
Payment Date in an amount equal to the Percentage Interest specified above
of
the aggregate amount, if any, payable from the Payment Account in respect
of
principal and interest on the Class A Notes pursuant to Section 3.05 of the
Indenture dated as of ______________ (the “Indenture”) between the Issuing
Entity, as Issuing Entity, and [Name of Indenture Trustee], as Indenture
Trustee
(the “Indenture Trustee”); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the Payment Date in
_____________, to the extent not previously paid on a prior Payment Date.
Capitalized terms used but not defined herein are defined in Appendix A of
the
Indenture.
Interest
on the Class A Notes will be paid monthly on each Payment Date at the Note
Interest Rate subject to limitations which may result in Interest Shortfalls
(as
further described in the Indenture). The Note Interest Rate for the Class
A
Notes, is a rate per annum equal to the least of (i) LIBOR plus ____%, in
the
each payment date; (ii) the Net Funds Cap; and (iii) the Maximum Note Interest
Rate. LIBOR for each applicable Interest Accrual Period will be determined
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 by the Indenture Trustee as set forth in the Indenture. All
determinations of LIBOR by the Indenture Trustee shall, in the absence of
manifest error, be conclusive for all purposes, and each holder of this Note,
by
accepting this Note, agrees to be bound by such determination. Interest on
this
Note will accrue for each Payment Date from and including the most recent
Payment Date on which interest has been paid (in the case of the first Payment
Date, from the Closing Date) to but excluding such Payment Date. Interest
will
be computed on the basis of the actual number of days in each Interest Period
and a year assumed to consist of 360 days. Principal of Interest on this
Note
shall be paid in the manner specified on the reverse hereof.
Principal
of and Interest on this Note are payable in such coin or currency of the
United
States of America as at the time of payment is legal tender for payment of
public and private debts. All payments made by the Issuing Entity with respect
to this Note shall be applied first to interest due and payable on this Note
as
provided above and then to the unpaid principal of this Note.
A-1-2
Reference
is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of
this
Note.
Unless
the certificate of authentication hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Note shall not
be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
This
Note
is one of a duly authorized issue of Notes of the Issuing Entity, designated
as
its Asset- Backed Notes (herein called the “Notes”), all issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuing Entity, the Indenture Trustee and the holders of
the
Notes. The Notes are subject to all terms of the Indenture.
The
Notes
(the “Notes”) are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal
of and Interest on this Note will be payable on each Payment Date, commencing
on
________________, as described in the Indenture. “Payment Date” means the
twenty-fifth day of each month, or, if any such date is not a Business Day,
then
the next Business Day.
The
entire unpaid principal amount of this Note shall be due and payable in full
on
the Payment Date in ___________ pursuant to the Indenture, to the extent
not
previously paid on a prior Payment Date. Notwithstanding the foregoing, if
an
Event of Default shall have occurred and be continuing, then the Indenture
Trustee or the holders of Notes representing not less than a majority of
the
Note Balances of all Notes may declare the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture.
Payments
of interest on this Note due and payable on each Payment Date, together with
the
installment of principal, if any, to the extent not in full payment of this
Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the
Note
Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee
of the
Depository Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register
as of
the applicable Record Date without requiring that this Note be submitted
for
notation of payment. Any reduction in the principal amount of this Note (or
any
one or more Predecessor Notes) effected by any payments made on any Payment
Date
shall be binding upon all future holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available,
as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee,
in
the name of and on behalf of the Issuing Entity, will notify the Person who
was
the Registered Holder hereof as of the Record Date preceding such Payment
Date
by notice mailed or transmitted by facsimile prior to such Payment Date,
and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the address specified in such notice of final
payment.
A-1-3
As
provided in the Indenture and subject to certain limitations set forth therein,
the transfer of this Note may be registered on the Note Register upon surrender
of this Note for registration of transfer at the Corporate Trust Office,
duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the holder hereof
or
such holder's attorney duly authorized in writing, with such signature
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation
in
the Securities Transfer Agent's Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes
in authorized denominations and in the same aggregate principal amount will
be
issued to the designated transferee or transferees. No service charge will
be
charged for any registration of transfer or exchange of this Note, but the
Note
Registrar shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any registration
of
transfer or exchange of this Note.
Each
holder or Beneficial Owner of a Note, by acceptance of a Note, or, in the
case
of a Beneficial Owner of a Note, a beneficial interest in a Note, covenants
and
agrees that no recourse may be taken, directly or indirectly, with respect
to
the obligations of the Issuing Entity, the Owner Trustee, the Seller, the
Servicer, the Depositor or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuing Entity or
(iii)
any partner, owner, beneficiary, agent, officer, director or employee of
the
Indenture Trustee or the Owner Trustee in its individual capacity, any holder
of
a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment
or call
owing to such entity.
Each
holder or Beneficial Owner of a Note, by acceptance of a Note or, in the
case of
a Beneficial Owner of a Note, a beneficial interest in a Note, covenants
and
agrees by accepting the benefits of the Indenture that such holder or Beneficial
Owner of a Note will not prior to the day that is one year and one day after
the
date this Indenture terminates, institute against the Issuing Entity or the
Depositor, or join in any institution against the Issuing Entity or the
Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or state bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or the Basic Documents.
Each
Holder or Beneficial Owner of a Note, by acceptance of a Note or, in the
case of
a Beneficial Owner of a Note, a beneficial interest in a Note, represents
that
either (1) it is not acquiring the Note with the assets of a Plan or (2)
the
acquisition and holding of a Note will not give rise to a nonexempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code as a result
of any of the above-mentioned Persons being a “Party in Interest” (within the
meaning of ERISA) or Disqualified Person (within the meaning of the
Code).
A-1-4
The
Issuing Entity has entered into the Indenture and this Note is issued with
the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuing
Entity. Each holder of a Note, by acceptance of a Note (and each Beneficial
Owner of a Note by acceptance of a beneficial interest in a Note), agrees
to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuing Entity.
Prior
to
the due presentment for registration of transfer of this Note, the Issuing
Entity, the Indenture Trustee and any agent of the Issuing Entity or the
Indenture Trustee may treat the Person in whose name this Note is registered
(as
of the day of determination or as of such other date as may be specified
in the
Indenture) as the owner hereof for all purposes, whether or not this Note
be
overdue, and none of the Issuing Entity, the Indenture Trustee or any such
agent
shall be affected by notice to the contrary.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuing
Entity
and the Indenture Trustee and the rights of the holders of the Notes under
the
Indenture at any time by the Issuing Entity and the Indenture Trustee with
the
consent of the holders of Notes representing a majority of the Note Balances
of
all Notes at the time Outstanding and with prior notice to the Rating Agencies.
The Indenture also contains provisions permitting the holders of Notes
representing specified percentages of the Note Balances of all Notes, on
behalf
of the holders of all the Notes, to waive compliance by the Issuing Entity
with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder
of
this Note (or any one of more Predecessor Notes) shall be conclusive and
binding
upon such holder and upon all future holders of this Note and of any Note
issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof
whether or not notation of such consent or waiver is made upon this Note.
The
Indenture also permits the Issuing Entity and the Indenture Trustee to amend
or
waive certain terms and conditions set forth in the Indenture without the
consent of holders of the Notes issued thereunder but with prior notice to
the
Rating Agencies.
The
term
“Issuing Entity” as used in this Note includes any successor or the Issuing
Entity under the Indenture.
The
Issuing Entity is permitted by the Indenture, under certain circumstances,
to
merge or consolidate, subject to the rights of the Indenture Trustee and
the
holders of Notes under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations therein set forth.
This
Note
and the Indenture shall be construed in accordance with the laws of the State
of
New York, without reference to its conflict of law provisions and the
obligations, rights and remedies of the parties hereunder and thereunder
shall
be determined in accordance with such laws.
A-1-5
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair, the obligation of the Issuing Entity, which
is
absolute and unconditional, to pay the principal of and interest on this
Note at
the times, place and rate, and in the coin or currency herein
prescribed.
Anything
herein to the contrary notwithstanding, except as expressly provided in the
Basic Documents, none of [Name of Owner Trustee], in its individual capacity,
[Name of Indenture Trustee], in its individual capacity, any owner of a
beneficial interest in the Issuing Entity, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them
for,
the payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the
case of
an Event of Default under the Indenture, the holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to,
and enforcement against, the assets of the Issuing Entity for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this
Note.
A-1-6
DEUTSCHE
MORTGAGE SECURITIES, INC.
TRUST
SERIES ____-__
|
||
By
|
[NAME
OF OWNER TRUSTEE], not
|
|
in
its individual capacity but solely as
|
||
Owner
Trustee
|
||
Dated:
________________
|
||
By
|
_____________________________
|
|
Authorized
Signatory
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Notes referred to in the within mentioned Indenture.
[NAME
OF
INDENTURE TRUSTEE], not in
its
individual capacity but solely as Indenture
Trustee
Dated:
_______________
By
_____________________________
Authorized
Signatory
A-1-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
__________________________________________________________
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfer unto
______________________________________________________________________________
______________________________________________________________________________
(name
and
address of assignee) the within Note and all rights thereunder, and hereby
irrevocably
constitutes
and appoints _________________________________________________________
___________________________,
attorney, to transfer said Note on the books kept for
registration
thereof, with full power of substitution in the premises.
Dated:
_____________________
_____________________________*/
Signature
Guaranteed:
_____________________________*/
__________
*
NOTICE:
The signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Note in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation
in
STAMP or such other “signature guarantee program” as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-1-8
EXHIBIT
A-2
FORM
OF
CLASS M NOTES
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS
NOTE
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR,
THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE INDENTURE OR THE
BASIC DOCUMENTS.
A-2-1
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
Asset-Backed
Note
Class
M-__
|
|
Registered
|
|
Principal
Amount:$ ___________
|
|
Percentage
Interest: ___%
|
|
No.
___
|
Note
Interest Rate: ___%
|
CUSIP
NO. ___________
|
|
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__, a business trust duly organized
and existing under the laws of the State of Delaware (herein referred to
as the
“Issuing Entity”), for value received, hereby promises to pay to __________ or
registered assigns, the principal sum of $___________, payable on each Payment
Date in an amount equal to the Percentage Interest specified above of the
aggregate amount, if any, payable from the Payment Account in respect of
principal on the Class M-__ Notes pursuant to Section 3.05 of the Indenture
dated as of _______________ (the “Indenture”) between the Issuing Entity, as
Issuing Entity, and [Name of Indenture Trustee], as Indenture Trustee (the
“Indenture Trustee”); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the Payment Date in ________________,
to the extent not previously paid on a prior Payment Date. Capitalized terms
used but not defined herein are defined in Appendix A of the
Indenture.
Interest
on the Class M-_ Notes will be paid monthly on each Payment Date at the Note
Interest Rate subject to limitations which may result in Interest Shortfalls
(as
further described in the Indenture). The Note Interest Rate for the Class
M-_
Notes will be [___% per annum] [a rate per annum equal to the least of (i)
LIBOR
plus ____%, in each payment date(ii) the Net Funds Cap for that payment date
and
(iii) the Maximum Note Interest Rate]. Interest will be computed on the basis
of
a [30-day month and a 360-day year] [the actual number of days in each Interest
Period and a year assumed to consist of 360 days]. Principal of and interest
on
this Note shall be paid in the manner specified on the reverse
hereof.
Principal
of and interest on this Note are payable in such coin or currency of the
United
States of America as at the time of payment is legal tender for payment of
public and private debts. All payments made by the Issuing Entity with respect
to this Note shall be applied first to interest due and payable on this Note
as
provided above and then to the unpaid principal of this Note.
Reference
is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of
this
Note.
Unless
the certificate of authentication hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Note shall not
be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
A-2-2
This
Note
is one of a duly authorized issue of Notes of the Issuing Entity, designated
as
its Asset- Backed Notes (herein called the “Notes”), all issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuing Entity, the Indenture Trustee and the holders of
the
Notes. The Notes are subject to all terms of the Indenture.
The
Notes
(the “Notes”) are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal
of and interest on this Note will be payable on each Payment Date, commencing
on
_______________, as described in the Indenture. “Payment Date” means the
twenty-fifth day of each month, or, if any such date is not a Business Day,
then
the next Business Day.
The
entire unpaid principal amount of this Note shall be due and payable in full
on
the Payment Date in ____________ pursuant to the Indenture, to the extent
not
previously paid on a prior Payment Date. Notwithstanding the foregoing, if
an
Event of Default shall have occurred and be continuing, then the Indenture
Trustee or the holders of Notes representing not less than a majority of
the
Note Balances of all Notes may declare the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture.
Payments
of interest on this Note due and payable on each Payment Date, together with
the
installment of principal, if any, to the extent not in full payment of this
Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the
Note
Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee
of the
Depository Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register
as of
the applicable Record Date without requiring that this Note be submitted
for
notation of payment. Any reduction in the principal amount of this Note (or
any
one or more Predecessor Notes) effected by any payments made on any Payment
Date
shall be binding upon all future holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available,
as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee,
in
the name of and on behalf of the Issuing Entity, will notify the Person who
was
the Registered Holder hereof as of the Record Date preceding such Payment
Date
by notice mailed or transmitted by facsimile prior to such Payment Date,
and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the address specified in such notice of final
payment.
As
provided in the Indenture and subject to certain limitations set forth therein,
the transfer of this Note may be registered on the Note Register upon surrender
of this Note for registration of transfer at the Corporate Trust Office,
duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the holder hereof
or
such holder's attorney duly authorized in writing, with such signature
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation
in
the Securities Transfer Agent's Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes
in authorized denominations and in the same aggregate principal amount will
be
issued to the designated transferee or transferees. No service charge will
be
charged for any registration of transfer or exchange of this Note, but the
Note
Registrar shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any registration
of
transfer or exchange of this Note.
A-2-3
Each
holder or Beneficial Owner of a Note, by acceptance of a Note, or, in the
case
of a Beneficial Owner of a Note, a beneficial interest in a Note, covenants
and
agrees that no recourse may be taken, directly or indirectly, with respect
to
the obligations of the Issuing Entity, the Owner Trustee, the Seller, the
Servicer, the Depositor or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuing Entity or
(iii)
any partner, owner, beneficiary, agent, officer, director or employee of
the
Indenture Trustee or the Owner Trustee in its individual capacity, any holder
of
a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment
or call
owing to such entity.
Each
holder or Beneficial Owner of a Note, by acceptance of a Note or, in the
case of
a Beneficial Owner of a Note, a beneficial interest in a Note, covenants
and
agrees by accepting the benefits of the Indenture that such holder or Beneficial
Owner of a Note will not prior to the day that is one year and one day after
the
date this Indenture terminates, institute against the Issuing Entity or the
Depositor, or join in any institution against the Issuing Entity or the
Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or state bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or the Basic Documents.
Each
Holder or Beneficial Owner of a Note, by acceptance of a Note or, in the
case of
a Beneficial Owner of a Note, a beneficial interest in a Note, represents
that
either (1) it is not acquiring the Note with the assets of a Plan or (2)
the
acquisition and holding of a Note will not give rise to a nonexempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code as a result
of any of the above-mentioned Persons being a “Party in Interest” (within the
meaning of ERISA) or Disqualified Person (within the meaning of the
Code).
The
Issuing Entity has entered into the Indenture and this Note is issued with
the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuing
Entity. Each holder of a Note, by acceptance of a Note (and each Beneficial
Owner of a Note by acceptance of a beneficial interest in a Note), agrees
to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuing Entity.
A-2-4
Prior
to
the due presentment for registration of transfer of this Note, the Issuing
Entity, the Indenture Trustee and any agent of the Issuing Entity or the
Indenture Trustee may treat the Person in whose name this Note is registered
(as
of the day of determination or as of such other date as may be specified
in the
Indenture) as the owner hereof for all purposes, whether or not this Note
be
overdue, and none of the Issuing Entity, the Indenture Trustee or any such
agent
shall be affected by notice to the contrary.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuing
Entity
and the Indenture Trustee and the rights of the holders of the Notes under
the
Indenture at any time by the Issuing Entity and the Indenture Trustee with
the
consent of the holders of Notes representing a majority of the Note Balances
of
all Notes at the time Outstanding and with prior notice to the Rating Agencies.
The Indenture also contains provisions permitting the holders of Notes
representing specified percentages of the Note Balances of all Notes, on
behalf
of the holders of all the Notes, to waive compliance by the Issuing Entity
with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder
of
this Note (or any one of more Predecessor Notes) shall be conclusive and
binding
upon such holder and upon all future holders of this Note and of any Note
issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof
whether or not notation of such consent or waiver is made upon this Note.
The
Indenture also permits the Issuing Entity and the Indenture Trustee to amend
or
waive certain terms and conditions set forth in the Indenture without the
consent of holders of the Notes issued thereunder but with prior notice to
the
Rating Agencies.
The
term
“Issuing Entity” as used in this Note includes any successor or the Issuing
Entity under the Indenture.
The
Issuing Entity is permitted by the Indenture, under certain circumstances,
to
merge or consolidate, subject to the rights of the Indenture Trustee and
the
holders of Notes under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations therein set forth.
This
Note
and the Indenture shall be construed in accordance with the laws of the State
of
New York, without reference to its conflict of law provisions and the
obligations, rights and remedies of the parties hereunder and thereunder
shall
be determined in accordance with such laws.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair, the obligation of the Issuing Entity, which
is
absolute and unconditional, to pay the principal of and interest on this
Note at
the times, place and rate, and in the coin or currency herein
prescribed.
A-2-5
Anything
herein to the contrary notwithstanding, except as expressly provided in the
Basic Documents, none of [Name of Owner Trustee], in its individual capacity,
[Name of Indenture Trustee], in its individual capacity, any owner of a
beneficial interest in the Issuing Entity, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them
for,
the payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the
case of
an Event of Default under the Indenture, the holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to,
and enforcement against, the assets of the Issuing Entity for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this
Note.
A-2-6
DEUTSCHE
MORTGAGE SECURITIES, INC.
TRUST
SERIES ____-__
|
||
By
|
[NAME
OF OWNER TRUSTEE], not
|
|
in
its individual capacity but solely as
|
||
Owner
Trustee
|
||
Dated:
________________
|
||
By
|
_____________________________
|
|
Authorized
Signatory
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Notes referred to in the within mentioned Indenture.
[NAME
OF
INDENTURE TRUSTEE], not in
its
individual capacity but solely as Indenture
Trustee
Dated:
_______________
By
_____________________________
Authorized
Signatory
A-2-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
__________________________________________________________
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns
and transfer unto
______________________________________________________________________________
______________________________________________________________________________
(name
and
address of assignee) the within Note and all rights thereunder, and hereby
irrevocably
constitutes
and appoints _________________________________________________________
___________________________,
attorney, to transfer said Note on the books kept for
registration
thereof, with full power of substitution in the premises.
Dated:
________________________________*/
Signature
Guaranteed:
________________________________*/
__________
*
NOTICE:
The signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Note in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation
in
STAMP or such other “signature guarantee program” as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-2-8
EXHIBIT
A-3
FORM
OF
CLASS B NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS
NOTE
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER, THE DEPOSITOR,
THE SERVICER, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE INDENTURE OR THE
BASIC DOCUMENTS.
NO
CLASS
B-2 NOTE MAY BE SOLD OR TRANSFERRED UNLESS: (1) THE TRANSFEREE IS NOT A PLAN
TRUSTEE OR ANY OTHER PERSON ACTING ON BEHALF OF A PLAN, OR USING THE ASSETS
OF A
PLAN TO ACQUIRE SUCH NOTES; OR (2) THE TRANSFEREE IS A PLAN AND HAS PROVIDED
THE
ISSUING ENTITY AND THE INDENTURE TRUSTEE AN OPINION OF COUNSEL SATISFACTORY
TO
THE ISSUING ENTITY AND THE INDENTURE TRUSTEE THAT THE PURCHASE, HOLDING AND
TRANSFER OF THE CLASS B-2 NOTES OR INTERESTS THEREIN IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE
ISSUING ENTITY, THE OWNER TRUSTEE OR THE INDENTURE TRUSTEE TO ANY OBLIGATION
IN
ADDITION TO THOSE UNDERTAKEN IN THIS AGREEMENT.
A-3-1
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
Asset-Backed
Note
Class
B-__
|
|
Registered
|
|
Principal
Amount:$ ___________
|
|
Percentage
Interest: ___%
|
|
No.
___
|
Note
Interest Rate: ___%
|
CUSIP
NO. ___________
|
|
_____
Trust ____-__, a business trust duly organized and existing under the laws
of
the State of Delaware (herein referred to as the “Issuing Entity”), for value
received, hereby promises to pay to __________ or registered assigns, the
principal sum of $___________, payable on each Payment Date in an amount
equal
to the Percentage Interest specified above of the aggregate amount, if any,
payable from the Payment Account in respect of principal on the Class B-__
Notes
pursuant to Section 3.05 of the Indenture dated as of ______________ (the
“Indenture”) between the Issuing Entity, as Issuing Entity, and [Name of
Indenture Trustee], as Indenture Trustee (the “Indenture Trustee”); provided,
however, that the entire unpaid principal amount of this Note shall be due
and
payable on the Payment Date in ___________, to the extent not previously
paid on
a prior Payment Date. Capitalized terms used but not defined herein are defined
in Appendix A of the Indenture.
Interest
on the Class B-_ Notes will be paid monthly on each Payment Date at the Note
Interest Rate subject to limitations which may result in [Basis Risk Shortfalls]
[Available Funds Shortfalls] (as further described in the Indenture). The
Note
Interest Rate for the Class B-_ Notes [___% per annum] [a rate per annum
equal
to the least of (i) LIBOR plus ____%, in each Payment Date; (ii) the Net
Funds
Cap for that Payment Date; and (iii) the Maximum Note Interest Rate]. Interest
will be computed on the basis of a [30-day month and a 360-day year] [the
actual
number of days in each Interest Period and a year assumed to consist of 360
days]. Principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
Principal
of and interest on this Note are payable in such coin or currency of the
United
States of America as at the time of payment is legal tender for payment of
public and private debts. All payments made by the Issuing Entity with respect
to this Note shall be applied first to interest due and payable on this Note
as
provided above and then to the unpaid principal of this Note.
Reference
is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of
this
Note.
Unless
the certificate of authentication hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Note shall not
be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
A-3-2
This
Note
is one of a duly authorized issue of Notes of the Issuing Entity, designated
as
its Asset- Backed Notes (herein called the “Notes”), all issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuing Entity, the Indenture Trustee and the holders of
the
Notes. The Notes are subject to all terms of the Indenture.
The
Notes
(the “Notes”) are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal
of and interest on this Note will be payable on each Payment Date, commencing
on
_____________, as described in the Indenture. “Payment Date” means the
twenty-fifth day of each month, or, if any such date is not a Business Day,
then
the next Business Day.
The
entire unpaid principal amount of this Note shall be due and payable in full
on
the Payment Date in ___________ pursuant to the Indenture, to the extent
not
previously paid on a prior Payment Date. Notwithstanding the foregoing, if
an
Event of Default shall have occurred and be continuing, then the Indenture
Trustee or the holders of Notes representing not less than a majority of
the
Note Balances of all Notes may declare the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture.
Payments
of interest on this Note due and payable on each Payment Date, together with
the
installment of principal, if any, to the extent not in full payment of this
Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the
Note
Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee
of the
Depository Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register
as of
the applicable Record Date without requiring that this Note be submitted
for
notation of payment. Any reduction in the principal amount of this Note (or
any
one or more Predecessor Notes) effected by any payments made on any Payment
Date
shall be binding upon all future holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available,
as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee,
in
the name of and on behalf of the Issuing Entity, will notify the Person who
was
the Registered Holder hereof as of the Record Date preceding such Payment
Date
by notice mailed or transmitted by facsimile prior to such Payment Date,
and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the address specified in such notice of final
payment.
As
provided in the Indenture and subject to certain limitations set forth therein,
the transfer of this Note may be registered on the Note Register upon surrender
of this Note for registration of transfer at the Corporate Trust Office,
duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the holder hereof
or
such holder's attorney duly authorized in writing, with such signature
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation
in
the Securities Transfer Agent's Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes
in authorized denominations and in the same aggregate principal amount will
be
issued to the designated transferee or transferees. No service charge will
be
charged for any registration of transfer or exchange of this Note, but the
Note
Registrar shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any registration
of
transfer or exchange of this Note.
A-3-3
Each
holder or Beneficial Owner of a Note, by acceptance of a Note, or, in the
case
of a Beneficial Owner of a Note, a beneficial interest in a Note, covenants
and
agrees that no recourse may be taken, directly or indirectly, with respect
to
the obligations of the Issuing Entity, the Owner Trustee, the Seller, the
Servicer, the Depositor or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuing Entity or
(iii)
any partner, owner, beneficiary, agent, officer, director or employee of
the
Indenture Trustee or the Owner Trustee in its individual capacity, any holder
of
a beneficial interest in the Issuing Entity, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment
or call
owing to such entity.
Each
holder or Beneficial Owner of a Note, by acceptance of a Note or, in the
case of
a Beneficial Owner of a Note, a beneficial interest in a Note, covenants
and
agrees by accepting the benefits of the Indenture that such holder or Beneficial
Owner of a Note will not prior to the day that is one year and one day after
the
day this Indenture terminates, institute against the Issuing Entity or the
Depositor, or join in any institution against the Issuing Entity or the
Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or state bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or the Basic Documents.
[Class
B-1] Each Holder or Beneficial Owner of a Note, by acceptance of a Note or,
in
the case of a Beneficial Owner of a Note, a beneficial interest in a Note,
represents that either (1) it is not acquiring the Note with the assets of
a
Plan or (2) the acquisition and holding of a Note will not give rise to a
nonexempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code as a result of any of the above-mentioned Persons being a “Party in
Interest” (within the meaning of ERISA) or Disqualified Person (within the
meaning of the Code).
[Class
B-2] Each Holder or Beneficial Owner of a Note, by acceptance of a Note it
represents that it is not a “Non-US Person”.
The
Issuing Entity has entered into the Indenture and this Note is issued with
the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuing
Entity. Each holder of a Note, by acceptance of a Note (and each Beneficial
Owner of a Note by acceptance of a beneficial interest in a Note), agrees
to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuing Entity. Prior to the
due
presentment for registration of transfer of this Note, the Issuing Entity,
the
Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee
may treat the Person in whose name this Note is registered (as of the day
of
determination or as of such other date as may be specified in the Indenture)
as
the owner hereof for all purposes, whether or not this Note be overdue, and
none
of the Issuing Entity, the Indenture Trustee or any such agent shall be affected
by notice to the contrary.
A-3-4
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuing
Entity
and the Indenture Trustee and the rights of the holders of the Notes under
the
Indenture at any time by the Issuing Entity and the Indenture Trustee with
the
consent of the holders of Notes representing a majority of the Note Balances
of
all Notes at the time Outstanding and with prior notice to the Rating Agencies.
The Indenture also contains provisions permitting the holders of Notes
representing specified percentages of the Note Balances of all Notes, on
behalf
of the holders of all the Notes, to waive compliance by the Issuing Entity
with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder
of
this Note (or any one of more Predecessor Notes) shall be conclusive and
binding
upon such holder and upon all future holders of this Note and of any Note
issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof
whether or not notation of such consent or waiver is made upon this Note.
The
Indenture also permits the Issuing Entity and the Indenture Trustee to amend
or
waive certain terms and conditions set forth in the Indenture without the
consent of holders of the Notes issued thereunder but with prior notice to
the
Rating Agencies.
The
term
“Issuing Entity” as used in this Note includes any successor or the Issuing
Entity under the Indenture.
The
Issuing Entity is permitted by the Indenture, under certain circumstances,
to
merge or consolidate, subject to the rights of the Indenture Trustee and
the
holders of Notes under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations therein set forth.
This
Note
and the Indenture shall be construed in accordance with the laws of the State
of
New York, without reference to its conflict of law provisions and the
obligations, rights and remedies of the parties hereunder and thereunder
shall
be determined in accordance with such laws.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair, the obligation of the Issuing Entity, which
is
absolute and unconditional, to pay the principal of and interest on this
Note at
the times, place and rate, and in the coin or currency herein
prescribed.
A-3-5
Anything
herein to the contrary notwithstanding, except as expressly provided in the
Basic Documents, none of [Name of Owner Trustee], in its individual capacity,
[Name of Indenture Trustee], in its individual capacity, any owner of a
beneficial interest in the Issuing Entity, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them
for,
the payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the
case of
an Event of Default under the Indenture, the holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent recourse
to,
and enforcement against, the assets of the Issuing Entity for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this
Note.
A-3-6
DEUTSCHE
MORTGAGE SECURITIES, INC.
TRUST
SERIES ____-__
|
||
By
|
[NAME
OF OWNER TRUSTEE], not
|
|
in
its individual capacity but solely as
|
||
Owner
Trustee
|
||
Dated:
________________
|
||
By
|
_____________________________
|
|
Authorized
Signatory
|
||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Notes referred to in the within mentioned Indenture.
[NAME
OF
INDENTURE TRUSTEE], not in
its
individual capacity but solely as Indenture
Trustee
Dated:
_______________
By
_____________________________
Authorized
Signatory
A-3-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
__________________________________________________________
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfer unto
______________________________________________________________________________
______________________________________________________________________________
(name
and
address of assignee) the within Note and all rights thereunder, and hereby
irrevocably
constitutes
and appoints ________________________________________________________
___________________________,
attorney, to transfer said Note on the books kept for
registration
thereof, with full power of substitution in the premises.
Dated:
___________________________
___________________________*/
Signature
Guaranteed:
___________________________*/
_________
*
NOTICE:
The signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Note in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Note Registrar, which requirements include membership or participation
in
STAMP or such other “signature guarantee program” as may be determined by the
Note Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-3-8
EXHIBIT
C
FORM
OF
RULE 144A INVESTMENT REPRESENTATION
Description
of Rule 144A Securities, including numbers:
______
Trust ____-__
Asset-Backed
Notes
Series
____-__, Class B-2, No. ___
The
undersigned seller, as registered holder (the “Transferor”), 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 Transferor hereby certifies
the
following facts: Neither the Transferor 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, 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, which would constitute a distribution of the Rule
144A Securities under the Securities Act of 1933, as amended (the “1933 Act”),
or which 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
Transferor 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 1933 Act.
2.
The
Buyer warrants and represents to, and covenants with, the Transferor and
the
Indenture Trustee pursuant to Section 5.02 of the Indenture 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 Transferor, the Indenture 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.
C-1
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 account 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 Transferor and
the
Indenture Trustee that either (1) the Buyer is not an employee benefit plan
within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) (“Plan”), or a plan within the meaning of
Section 4975(e)(1) of the Internal Revenue Code of 1986 (the “Code”) (also a
“Plan”), and the Buyer 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 assets of a Plan, or (2) has provided the Indenture Trustee,
the Issuing Entity and the Servicer with an opinion of counsel acceptable
to and
in form and substance satisfactory to the Indenture Trustee, the Issuing
Entity
and the Servicer to the effect that the purchase of the Rule 144A Securities
is
permissible under applicable law, will not constitute or result in any nonexempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Indenture Trustee, the Issuing Entity or the Servicer to any
obligation or liability (including obligations or liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in the
Indenture.
The
Buyer
is a citizen or resident of the United States, a corporation or a partnership
(including an entity treated as a corporation or partnership for United States
federal income tax purposes) created or organized in, or under the laws of,
the
United States or any State thereof or the District of Columbia (except, in
the
case of a partnership, to the extent provided in regulations).
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.
C-2
___________________________________
|
___________________________________
|
Print
Name of Transferor
|
Print
Name of Buyer
|
By:
________________________________
|
By:
________________________________
|
Name:
|
Name:
|
Title:
|
Title:
|
Taxpayer
Identification:
|
Taxpayer
Identification:
|
No.
________________________________
|
No.
________________________________
|
Date:
________________________________
|
Date:
________________________________
|
C-3
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2.
In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $______________________** 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.
_______
**
Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-4
3.
The
term “securities” as used herein does not include (i) securities of Issuing
Entitys that are affiliated with the Buyer, (ii) securities that are part
of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934.
5.
The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
seller to it and other parties related to the Certificates are relying and
will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
C-5
____
|
____
|
Will
the Buyer be purchasing the Rule 144A Yes No Securities only for
the
Buyer's own account?
|
Yes
|
No
|
6.
If the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
will
only purchase for the account of a third party that at the time is a “qualified
institutional buyer” within the meaning of Rule 144A. In addition, the Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer has obtained a current representation letter from such third party
or
taken other appropriate steps contemplated by Rule 144A to conclude that
such
third party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
7.
The
Buyer will notify each of the parties to which this certification is made
of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of
this certification as of the date of such purchase.
_________________________________
Print
Name of Buyer
By:
_____________________________
Name:
Title:
Date:
___________________________
C-6
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers That Are Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2.
In
connection with purchases by Xxxxx, 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 Issuing
Entitys 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.
C-7
6.
The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of this
certification by the undersigned as of the date of such purchase.
_________________________________
Print
Name of Buyer
By:
_____________________________
Name:
Title:
IF
AN
ADVISER:
________________________________
Print
Name of Buyer
________________________________
Date:
C-8
EXHIBIT
D
FORM
OF
INVESTOR REPRESENTATION LETTER
_______________,
_____
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
c/o
[Owner Trustee]
[Indenture
Trustee]
Attention:
_______
Re:
|
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
|
Asset-Backed
Notes, Series ____-__, Class B-2
|
Ladies
and Gentlemen:
______________
(the “Purchaser”) intends to purchase from (the “Seller”) $ Initial Note
Principal Balance of DEUTSCHE MORTGAGE SECURITIES, INC. TRUST SERIES ____-__,
Asset-Backed Notes, Series ____-__, Class B-2 (the “Notes”), issued pursuant to
the Indenture (the “Indenture”), dated as of _______________, between [Name of
Indenture Trustee], as indenture trustee (the “Indenture Trustee”), and DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__, as Issuing Entity (the “Issuing
Entity”). All terms used herein and not otherwise defined shall have the
meanings set forth in the Indenture. The Purchaser hereby certifies, represents
and warrants to, and covenants with, the Issuing Entity and the Indenture
Trustee that:
1.
The
Purchaser understands that (a) the Notes have not been and will not be
registered or qualified under the Securities Act of 1933, as amended (the
“Act”)
or any state securities law, (b) the Issuing Entity is not required to so
register or qualify the Notes, (c) the Notes may be resold only if registered
and qualified pursuant to the provisions of the Act or any state securities
law,
or if an exemption from such registration and qualification is available,
(d)
the Indenture contains restrictions regarding the transfer of the Notes and
(e)
the Notes will bear a legend to the foregoing effect.
2.
The
Purchaser is acquiring the Notes for its own account for investment only
and not
with a view to or for sale in connection with any distribution thereof in
any
manner that would violate the Act or any applicable state securities
laws.
3.
The
Purchaser is (a) a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters, and, in particular,
in such matters related to securities similar to the Notes, such that it
is
capable of evaluating the merits and risks of investment in the Notes, (b)
able
to bear the economic risks of such an investment and (c) an “accredited
investor” within the meaning of Rule 501(a) promulgated pursuant to the
Act.
4.
The
Purchaser has been furnished with, and has had an opportunity to review (a)
a
copy of the Private Placement Memorandum, dated _________________, relating
to
the Notes, (b) a copy of the Indenture and (c) such other information concerning
the Notes, the Loans and the Issuing Entity as has been requested by the
Purchaser from the Issuing Entity or the Seller and is relevant to the
Purchaser's decision to purchase the Notes. The Purchaser has had any questions
arising from such review answered by the Issuing Entity or the Seller to
the
satisfaction of the Purchaser. [If the Purchaser did not purchase the Notes
from
the Seller in connection with the initial distribution of the Notes and was
provided with a copy of the Private Placement Memorandum (the “Memorandum”)
relating to the original sale (the “Original Sale”) of the Notes by the Issuing
Entity, the Purchaser acknowledges that such Memorandum was provided to it
by
the Seller, that the Memorandum was prepared by the Issuing Entity solely
for
use in connection with the Original Sale and the Issuing Entity did not
participate in or facilitate in any way the purchase of the Notes by the
Purchaser from the Seller, and the Purchaser agrees that it will look solely
to
the Seller and not to the Issuing Entity with respect to any damage, liability,
claim or expense arising out of, resulting from or in connection with (a)
any
error or omission, or alleged error or omission, contained in the Memorandum,
or
(b) any information, development or event arising after the date of the
Memorandum.]
D-1
5.
The
Purchaser has not and will not nor has it authorized or will it authorize
any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any Note,
any interest in any Note or any other similar security to any person in any
manner, (b) solicit any offer to buy or to accept a pledge, disposition of
other
transfer of any Note, any interest in any Note or any other similar security
from any person in any manner, (c) otherwise approach or negotiate with respect
to any Note, any interest in any Note or any other similar security with
any
person in any manner, (d) make any general solicitation by means of general
advertising or in any other manner or (e) take any other action, that (as
to any
of (a) through (e) above) would constitute a distribution of any Note under
the
Act, that would render the disposition of any Note a violation of Section
5 of
the Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not sell or otherwise
transfer any of the Notes, except in compliance with the provisions of the
Indenture.
6.
The
Purchaser
(a) is
not an
employee benefit or other plan subject to the prohibited transaction 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”) (a
“Plan”), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Note with “plan assets” of any Plan within the meaning of the
Department of Labor (“DOL”) regulation at 29 C.F.R. ss.2510.3- 101;
or
(b) has
provided the Indenture Trustee, the Issuing Entity and the Servicer with
an
opinion of counsel acceptable to and in form and substance satisfactory to
the
Indenture Trustee, the Issuing Entity and the Servicer to the effect that
the
purchase of Notes is permissible under applicable law, will not constitute
or
result in any non-exempt prohibited transaction under ERISA or Section 4975
of
the Code and will not subject the Indenture Trustee, the Issuing Entity or
the
Servicer to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken
in the
Indenture.
D-2
In
addition, the Purchaser hereby certifies, represents and warrants to, and
covenants with, the Issuing Entity, the Indenture Trustee and the Servicer
that
the Purchaser will not transfer such Notes to any Plan or person unless either
such Plan or person meets the requirements set forth in either (a) or (b)
above.
7.
The
Purchaser is a citizen or resident of the United States, a corporation or
a
partnership (including an entity treated as a corporation or partnership
for
United States federal income tax purposes) created or organized in, or under
the
laws of, the United States or any State thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in
regulations).
Very
truly yours,
______________________________
(purchaser)
By: ______________________________
Name:
Title:
D-3
EXHIBIT
E
FORM
OF
TRANSFEROR REPRESENTATION LETTER
_______________,
_____
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
c/o
[Owner Trustee]
[Indenture
Trustee]
Attention:
_______
Re:
|
DEUTSCHE
MORTGAGE SECURITIES, INC. TRUST SERIES ____-__
|
Asset-Backed
Notes, Series ____-__, Class B-2
|
Ladies
and Gentlemen:
In
connection with the sale by (the “Seller”) to (the “Purchaser”) of $________
Initial Note Principal Balance of DEUTSCHE MORTGAGE SECURITIES, INC. TRUST
SERIES ____-__, Asset-Backed Notes, Series ____-__, Class B-2 (the “Notes”),
issued pursuant to the Indenture (the “Indenture”), dated as of ______________,
between DEUTSCHE MORTGAGE SECURITIES, INC. TRUST SERIES ____-__, as Issuing
Entity (the “Issuing Entity”), and [Name of Indenture Trustee], as indenture
trustee (the “Indenture Trustee”). The Seller hereby certifies, represents and
warrants to, and covenants with, the Issuing Entity and the Indenture Trustee
that:
Neither
the Seller nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Note, any interest in any Note or
any
other similar security to any person in any manner, (b) has solicited any
offer
to buy or to accept a pledge, disposition or other transfer of any Note,
any
interest in any Note or any other similar security from any person in any
manner, (c) has otherwise approached or negotiated with respect to any Note,
any
interest in any Note or any other similar security with any person in any
manner, (d) has made any general solicitation by means of general advertising
or
in any other manner, or (e) has taken any other action, that (as to any of
(a)
through (e) above) would constitute a distribution of the Notes under the
Securities Act of 1933 (the “Act”), that would render the disposition of any
Note a violation of Section 5 of the Act or any state securities law, or
that
would require registration or qualification pursuant thereto. The Seller
will
not act in any manner set forth in the foregoing sentence with respect to
any
Note. The Seller has not and will not sell or otherwise transfer any of the
Notes, except in compliance with the provisions of the Indenture.
E-1
Very
truly yours,
______________________________
(Seller)
By: ______________________________
Name:
Title:
E-2
APPENDIX
A
DEFINITIONS
Accrual
Period: For the Class A, Class M-2 and Class B-1 Notes and any Payment Date,
the
period commencing on the immediately preceding Payment Date (or the Closing
Date, in the case of the first Accrual Period) and ending on the day immediately
preceding the related Payment Date. For the Class M-1 and Class B-2 Notes
and
any Payment Date, the calendar month immediately preceding the related Payment
Date.
Affiliate:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
Aggregate
Loan Balance: As of any Payment Date will be equal to the aggregate of the
Principal Balances of the Loans as of the last day of the prior
month.
Applied
Loss Amount: For any Payment Date, the excess of the aggregate Class Principal
Balance of the Notes over the Aggregate Loan Balance after giving effect
to all
Realized Losses incurred with respect to loans during the Collection Period
for
such Payment Date and payments of principal on such Payment Date.
Appraised
Value: With respect to any Loan, the value of the related Mortgaged Property
determined at the time of origination of such Loan in accordance with the
Originator's underwriting standards.
Assignment
of Mortgage: With respect to any Mortgage, an assignment, notice of transfer
or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction in which the related Mortgaged Property is located to reflect
the
sale of the Mortgage, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same
jurisdiction.
Authorized
Officer: With respect to the Issuing Entity, any officer of the Owner Trustee
who is authorized to act for the Owner Trustee in matters relating to the
Issuing Entity and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Closing Date
(as
such list may be modified or supplemented from time to time
thereafter).
Available
Funds Cap: For any Payment Date, the Remittance Amount less all amounts used
to
pay Current Interest and Carryforward Interest on each Class of Notes other
than
the Class B-2 Notes, divided by the Class Principal Balance of the Class
B-2
Notes immediately prior to such Payment Date, and multiplied by 12.
Available
Funds Shortfall: For the Class B-2 Notes and any Payment Date, the sum
of:
AA-1
(1)
the
excess, if any, of (x) the Current Interest calculated at the rate of _____%
per
annum over (y) Current Interest calculated at the Available Funds
Cap;
(2)
any
Available Funds Shortfall remaining unpaid from prior Payment Dates;
and
(3)
30
days interest on the amount in clause (2) calculated at the rate of ____%
per
annum.
Bankruptcy
Code: The Bankruptcy Code of 1978, as amended.
Basic
Documents: The Owner Trust Agreement, the Indenture, the Loan Purchase
Agreement, the Servicing Agreement and the Custodial Agreements and the other
documents and certificates delivered in connection with any of the
above.
Basis
Risk Shortfall: For the Class A, Class M-2 and Class B-1 Notes, and any Payment
Date, the sum of:
(1)
the
excess, if any, of the related Current Interest calculated on the basis of
the
lesser of (x) one-month LIBOR plus the applicable Note Margin and (y) the
Maximum Interest Rate over the Net Funds Cap for the applicable Payment
Date;
(2)
any
Basis Risk Shortfall remaining unpaid from prior Payment Dates, and
(3)
30
days interest on the amount in clause (2) calculated on the basis of the
lesser
of (x) one-month LIBOR plus the applicable note margin and (y) the Maximum
Interest Rate.
Beneficial
Owner: With respect to any Note, the Person who is the beneficial owner of
such
Note as reflected on the books of the Depository or on the books of a Person
maintaining an account with such Depository (directly as a Depository
Participant or indirectly through a Depository Participant, in accordance
with
the rules of such Depository).
Book-Entry
Notes: Beneficial interests in the Notes, ownership and transfers of which
shall
be made through book entries by the Depository as described in Section 4.06
of
the Indenture. Initially, the Book-Entry Notes shall be the Notes (other
than
the Class B-2 Notes).
Business
Day: Any day other than (i) a Saturday or a Sunday or (ii) a day on which
banking institutions in the State of New York or Delaware are required or
authorized by law to be closed.
Business
Trust Statute: Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Codess.ss.3801 et seq., as the same may be amended from time to
time.
Capitalization
Workout: As defined in Section 3.02 of the Servicing Agreement.
Carryforward
Interest: For any class of Notes and Payment Date, the sum of (1) the amount,
if
any, by which (x) the sum of (A) Current Interest for such Class for the
immediately preceding Payment Date and (B) any unpaid Carryforward Interest
from
previous Payment Dates exceeds (y) the amount paid in respect of interest
on
such Class on such immediately preceding Payment Date, and (2) interest on
such
amount for the related Accrual Period at the applicable Note Interest
Rate.
AA-2
Certificate:
The Class CE Certificates issued and outstanding pursuant to the terms of
the
Owner Trust Agreement, evidencing a beneficial ownership interest in the
Issuing
Entity.
Certificate
Distribution Account: The account or accounts created and maintained by the
Certificate Paying Agent pursuant to Section 3.10(c) of the Owner Trust
Agreement. The Certificate Paying Agent will make all distributions on the
Certificate from money on deposit in the Certificate Distribution Account.
The
Certificate Distribution Account shall be an Eligible Account.
Certificate
Distribution Amount: The amount payable to the Certificate Paying Agent under
Section 3.05(g)(x) of the Indenture for payment to the Certificate under
the
Owner Trust Agreement.
Certificate
of Trust: The Certificate of Trust filed for the Trust pursuant to Section
3810(a) of the Business Trust Statute, including all amendments and
restatements.
Certificate
Paying Agent: The meaning specified in Section 3.10 of the Owner Trust
Agreement.
Certificate
Percentage Interest: With respect to the Certificate, the Certificate Percentage
Interest stated on the face thereof.
Certificate
Register: The register maintained by the Certificate Registrar in which the
Certificate Registrar shall provide for the registration of the Certificate
and
of transfers and exchanges of the Certificate.
Certificate
Registrar: Initially, the Indenture Trustee, in its capacity as Certificate
Registrar, or any successor to the Indenture Trustee in such
capacity.
Certificateholder:
The Person in whose name a Certificate is registered in the Certificate Register
except that, any Certificate registered in the name of the Issuing Entity,
the
Owner Trustee or the Indenture Trustee or any Affiliate of any of them shall
be
deemed not to be outstanding and the registered holder will not be considered
a
Certificateholder or a holder for purposes of giving any request, demand,
authorization, direction, notice, consent or waiver under the Indenture or
the
Owner Trust Agreement provided that, in determining whether the Indenture
Trustee or the Owner Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Certificates that the Indenture Trustee or the Owner Trustee knows to be
so
owned shall be so disregarded. Owners of Certificates that have been pledged
in
good faith may be regarded as Holders if the pledgee establishes to the
satisfaction of the Indenture Trustee or the Owner Trustee, as the case may
be,
the pledgee's right so to act with respect to such Certificates and that
the
pledgee is not the Issuing Entity, any other obligor upon the Certificates
or
any Affiliate of any of the foregoing Persons.
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Class:
Collectively, all of the Notes bearing the same designation.
Class
A
Notes or Senior Notes: The Class A Notes.
Class
B
Notes: The Class B-1 or Class B-2 Notes.
Class
B-1
Principal Payment Amount: For any Payment Date on or after the Stepdown Date,
will be the amount, if any, by which (x) the sum of (i) the Class Principal
Balance of the Senior Notes and the aggregate Class Principal Balances of
the
Class M-1 and Class M-2 Notes, in each case, after giving effect to payments
on
such Payment Date and (ii) the Class Principal Balance of the Class B-1 Notes
immediately prior to such Payment Date exceeds (y) the lesser of (A) the
product
of (i) ____% and (ii) the Aggregate Loan Balance for such Payment Date and
(B)
the amount, if any, by which (i) the Aggregate Loan Balance for such Payment
Date exceeds (ii) ____% of the Aggregate Loan Balance as of the Cut-off
Date.
Class
B-2
Principal Payment Amount: For any Payment Date on or after the Stepdown Date,
will be the amount, if any, by which (x) the sum of (i) the Class Principal
Balance of the Senior Notes and the aggregate Class Principal Balances of
the
Class M-1, Class M-2 and Class B-1 Notes, in each case, after giving effect
to
payments on such Payment Date and (ii) the Class Principal Balance of the
Class
B-2 Notes immediately prior to such Payment Date exceeds (y) the lesser of
(A)
the product of (i) _____% and (ii) the Aggregate Loan Balance for such Payment
Date and (B) the amount, if any, by which (i) the Aggregate Loan Balance
for
such Payment Date exceeds (ii) ____% of the Aggregate Loan Balance as of
the
Cut-off Date.
Class
M
Notes: The Class M-1 and Class M-2 Notes.
Class
M-1
Principal Payment Amount: For any Payment Date on or after the Stepdown Date
with respect to such Payment Date, will be the amount, if any, by which (x)
the
sum of (i) the Class Principal Balance of the Senior Notes after giving effect
to payments on such Payment Date and (ii) the Class Principal Balance of
the
Class M-1 Notes immediately prior to such Payment Date exceeds (y) the lesser
of
(A) the product of (i) _____% and (ii) the Aggregate Loan Balance for such
Payment Date and (B) the amount, if any, by which (i) the Aggregate Loan
Balance
for such Payment Date exceeds (ii) ____% of the Aggregate Loan Balance as
of the
Cut-off Date.
Class
M-2
Principal Payment Amount: For any Payment Date on or after the Stepdown Date
with respect to such Payment Date, will be the amount, if any, by which (x)
the
sum of (i) the Class Principal Balance of the Senior Notes and the Class
Principal Balance of the Class M-1 Notes, in each case, after giving effect
to
payments on such Payment Date and (ii) the Class Principal Balance of the
Class
M-2 Notes immediately prior to such Payment Date exceeds (y) the lesser of
(A)
the product of (i) _____% and (ii) the Aggregate Loan Balance for such Payment
Date and (B) the amount, if any, by which (i) the Aggregate Loan Balance
for
such Payment Date exceeds (ii) ____% of the Aggregate Loan Balance as of
the
Cut-off Date.
Class
Principal Balance: For any Class of Notes, as of any Determination Date,
an
amount equal to the initial principal balance of that Class, reduced by the
aggregate of the following amounts allocable to that Class: (i) all amounts
previously distributed to holders of Notes of that class as payments of
Principal; and (ii) in the case of any class of Subordinate Notes, any
reductions to the Class Principal Balance thereof due to Realized
Losses.
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Closing
Date: _______________.
Code:
The
Internal Revenue Code of 1986 and the rules and regulations promulgated
thereunder.
Collateral:
The meaning specified in the Granting Clause of the Indenture.
Collection
Period: With respect to each Payment Date, the calendar month preceding the
month of that Payment Date.
Combined
Loan-to-Value Ratio: With respect to any Loan at origination, the ratio,
expressed as a percentage of (i) the sum of (A) the original principal balance
of such Loan, and (B) any outstanding principal balance at origination of
such
Loan, of all other loans, if any, secured by senior liens on the related
Mortgaged Property, to (ii) the Appraised Value.
Corporate
Trust Office: With respect to the Indenture Trustee, Certificate Registrar,
Certificate Paying Agent and Paying Agent, the principal corporate trust
office
of the Indenture Trustee and Note Registrar at which at any particular time
its
corporate trust business shall be administered, which office at the date
of the
execution of this instrument is located at ______________________________,
Attention:__________. With respect to the Owner Trustee, the principal corporate
trust office of the Owner Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of the execution
of this Owner Trust Agreement is located at
_________________________.
Credit
Scores: The figure assigned to a Loan that is designed to assess the Mortgagor's
credit history which is obtained from credit reports provided by various
credit
reporting organizations and obtained by many lenders in connection with Loan
applications to help assess a Xxxxxxxxx's creditworthiness.
Current
Interest: For any Payment Date, the amount of interest accruing at the
applicable Note Interest Rate on the related Class Principal Balance as
applicable, during the related Accrual Period.
Custodial
Account: The account or accounts created and maintained by the Servicer pursuant
to Section 3.02(b) of the Servicing Agreement, in which the Servicer shall
deposit or cause to be deposited certain amounts in respect of the
Loans.
Custodian:
[Name of Custodian].
Cut-off
Date: __________ 1, ____.
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Cut-off
Date Loan Balance: With respect to any Loan, the unpaid principal balance
thereof as of the close of business on the Business Day immediately prior
to the
Cut-off Date.
Default:
Any occurrence which is or with notice or the lapse of time or both would
become
an Event of Default.
Deficient
Valuation: With respect to any Loan, a reduction in the scheduled Monthly
Payment for such Loan by a court of competent jurisdiction in a proceeding
under
the Bankruptcy Code, except such a reduction constituting a Deficient Valuation
or any reduction that results in a permanent forgiveness of
principal.
Deferred
Amount: For any Class of Subordinate Notes and Payment Date, will equal the
amount by which (x) the aggregate of the Applied Loss Amounts previously
applied
in reduction of the Class Principal Balance thereof exceeds (y) the aggregate
of
amounts previously paid in reimbursement thereof.
Definitive
Notes: The meaning specified in Section 4.06 of the Indenture.
Deleted
Loan: A Loan replaced or to be replaced with an Eligible Substitute Loan
pursuant to Section 3.1(c) of the Loan Purchase Agreement.
Delinquency
Rate: For any month will be, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding note balance of all loans
60 or
more days delinquent as of the close of business on the last day of such
month,
and the denominator of which is the Aggregate Loan Balance as of the close
of
business on the last day of such month.
Depositor:
Deutsche Mortgage Securities, Inc., or its successor in interest.
Depository
or Depository Agency: The Depository Trust Company or a successor appointed
by
the Indenture Trustee with the approval of the Depositor. Any successor to
the
Depository shall be an organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act and the regulations of the Securities
and
Exchange Commission thereunder.
Depository
Participant: A Person for whom, from time to time, the Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination
Date: With respect to any Payment Date, the 15th day of the month in which
such
Payment Date occurs or if such day is not a Business Day, the next succeeding
Business Day. Due Date: The date on which the Monthly Payment on the related
Loan is due in accordance with the terms of the related Mortgage
Note.
Eligible
Account: An account that is any of the following: (i) maintained with a
depository institution the debt obligations of which have been rated by each
Rating Agency in its highest short-term rating available, or (ii) an account
or
accounts in a depository institution in which such accounts are fully insured
to
the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered
to the
Indenture Trustee and each Rating Agency) the Indenture Trustee have a claim
with respect to the funds in such account or a perfected first security interest
against any collateral (which shall be limited to Permitted Investments)
securing such funds that is superior to claims of any other depositors or
creditors of the depository institution with which such account is maintained,
or (iii) a trust account or accounts maintained in the corporate trust division
of the Indenture Trustee, or (v) an account or accounts of a depository
institution acceptable to each Rating Agency (as evidenced in writing by
each
Rating Agency that use of any such account as the Custodial Account or the
Payment Account will not reduce the rating assigned to any of the Securities
by
such Rating Agency below the lower of the thencurrent rating or the rating
assigned to such Securities as of the Closing Date by such Rating
Agency).
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Eligible
Substitute Loan: A Loan substituted by the Seller for a Deleted Loan which
must,
on the date of such substitution, as confirmed in an Officer's Certificate
delivered to the Indenture Trustee, (i) have an outstanding principal balance,
after deduction of the principal portion of the monthly payment due in the
month
of substitution (or in the case of a substitution of more than one Loan for
a
Deleted Loan, an aggregate outstanding principal balance, after such deduction),
not in excess of the outstanding principal balance of the Deleted Loan (the
amount of any shortfall to be deposited by the Seller in the Custodial Account
in the month of substitution); (ii) comply with each representation and warranty
set forth in Annex B to the Loan Purchase Agreement; (iii) have a Mortgage
Rate
no lower than and not more than 1% per annum higher than the Mortgage Rate
of
the Deleted Loan as of the date of substitution; (iv) have a Combined
Loan-to-Value Ratio at the time of substitution no higher than that of the
Deleted Loan at the time of substitution; (v) have a remaining term to stated
maturity not greater than (and not more than one year less than) that of
the
Deleted Loan; (vi) be ineligible for inclusion in a real estate mortgage
investment conduit (“REMIC”) (a “REMIC Ineligible Loan”) if the Deleted Loan was
a REMIC Ineligible Loan (because (a) the value of the real property securing
the
Deleted Loan was not at least equal to eighty percent of the adjusted issue
price of such loan at the time of origination, calculated by subtracting
the
amount of any liens that are senior to such loan and a proportionate amount
of
any lien of equal priority from the value of such property when the Deleted
Loan
was originated and (b) substantially all of the proceeds of the Deleted Loan
were not used to acquire, improve or protect an interest in the real property
securing such loan and such real property was the only security for such
Deleted
Loan); and (vii) not be 30 days or more delinquent.
ERISA:
The Employee Retirement Income Security Act of 1974, as amended.
Event
of
Default: With respect to the Indenture, any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the
failure to pay the Current Interest on any Payment Date;
(ii) the
failure by the Issuing Entity on the final maturity date to reduce the Class
Principal Balances of any Note then outstanding to zero;
(iii) there
occurs a default in the observance or performance of any negative covenant,
covenant or agreement of the Issuing Entity made in the Indenture, or any
representation or warranty of the Issuing Entity made in the Indenture or
in any
certificate, note or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material respect as of the
time
when the same shall have been made which has a material adverse effect on
Securityholders, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such representation or warranty
was incorrect shall not have been eliminated or otherwise cured, for a period
of
30 days after there shall have been given, by registered or certified mail,
to
the Issuing Entity by the Indenture Trustee or to the Issuing Entity and
the
Indenture Trustee by the Holders of at least 25% of the outstanding Note
Balance
of the Notes, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating that
such
notice is a notice of default hereunder; or
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(iv) there
occurs the filing of a decree or order for relief by a court having jurisdiction
in the premises in respect of the Issuing Entity or any substantial part
of the
Trust Estate in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or
similar official of the Issuing Entity or for any substantial part of the
Trust
Estate, or ordering the winding-up or liquidation of the Issuing Entity's
affairs, and such decree or order shall remain unstayed and in effect for
a
period of 60 consecutive days; or
(v) there
occurs the commencement by the Issuing Entity of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now
or
hereafter in effect, or the consent by the Issuing Entity to the entry of
an
order for relief in an involuntary case under any such law, or the consent
by
the Issuing Entity to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of
the Issuing Entity or for any substantial part of the assets of the Trust
Estate, or the making by the Issuing Entity of any general assignment for
the
benefit of creditors, or the failure by the Issuing Entity generally to pay
its
debts as such debts become due, or the taking of any action by the Issuing
Entity in furtherance of any of the foregoing.
Event
of
Servicer Termination: With respect to the Servicing Agreement, a Servicing
Default as defined in Section 7.01 of the Servicing Agreement.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
FHLMC:
The Federal Loan Mortgage Corporation, or any successor thereto.
Final
Maturity Date: ____________.
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Final
Scheduled Payment Date: ______________.
FNMA:
The
Federal National Mortgage Association, or any successor thereto.
Foreclosure
Profit: With respect to a Liquidated Loan, the amount, if any, by which (i)
the
aggregate of its Net Liquidation Proceeds exceeds (ii) the related Loan Balance
(plus accrued and unpaid interest thereon at the applicable Mortgage Rate
from
the date interest was last paid through the date of receipt of the final
Liquidation Proceeds) of such Liquidated Loan immediately prior to the final
recovery of its Liquidation Proceeds.
Holder:
Any of the Noteholders or Certificateholders.
HUD:
The
United States Department of Housing and Urban Development and any successor
thereto.
Indemnified
Party: The meaning specified in Section 7.02 of the Owner Trust
Agreement.
Indenture:
The indenture dated as of _________________ between the Issuing Entity, as
debtor, and the Indenture Trustee, as indenture trustee.
Indenture
Trustee: [Name of Indenture Trustee], and its successors and assigns or any
successor indenture trustee appointed pursuant to the terms of the
Indenture.
Independent
Certificate: A certificate or opinion to be delivered to the Indenture Trustee
under the circumstances described in, and otherwise complying with, the
applicable requirements of Section 10.01 of the Indenture, made by an
Independent appraiser or other expert appointed by an Issuing Entity Order
and
approved by the Indenture Trustee in the exercise of reasonable care, and
such
opinion or certificate shall state that the signer has read the definition
of
“Independent” in this Indenture and that the signer is Independent within the
meaning thereof.
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Initial
Note Balance: With respect to the Class A Notes $ ___________, the Class
M-1
Notes $ _________, the Class M-2 Notes $ __________, the Class B-1 Notes
$_________ and the Class B-2 Notes $ __________.
Insolvency
Event: With respect to a specified Person, (a) the filing of a decree or
order
for relief by a court having jurisdiction in the premises in respect of such
Person or any substantial part of its property in an involuntary case under
any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part
of
its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for
a
period of 60 consecutive days; or (b) the commencement by such Person of
a
voluntary case under any applicable bankruptcy, insolvency or other similar
law
now or hereafter in effect, or the consent by such Person to the entry of
an
order for relief in an involuntary case under any such law, or the consent
by
such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
for
such Person or for any substantial part of its property, or the making by
such
Person of any general assignment for the benefit of creditors, or the failure
by
such Person generally to pay its debts as such debts become due or the admission
by such Person in writing (as to which the Indenture Trustee shall have notice)
of its inability to pay its debts generally, or the adoption by the Board
of
Directors or managing member of such Person of a resolution which authorizes
action by such Person in furtherance of any of the foregoing.
Insurance
Proceeds: Proceeds paid by any insurer pursuant to any insurance policy covering
a Loan which are required to be remitted to the Servicer, or amounts required
to
be paid by the Servicer pursuant to the next to last sentence of Section
3.04 of
the Servicing Agreement, net of any component thereof (i) covering any expenses
incurred by or on behalf of the Servicer in connection with obtaining such
proceeds, (ii) that is applied to the restoration or repair of the related
Mortgaged Property, (iii) released to the Mortgagor in accordance with the
Servicer's normal servicing procedures or (iv) required to be paid to any
holder
of a mortgage senior to such Loan
Interest
Remittance Amount: With respect to any Payment Date, the sum of the
following:
(i) all
interest collected (other than Payaheads) in respect of Scheduled Payments
on
the loans during the related Collection Period, the interest portion of
Xxxxxxxxx previously received and intended for application in the related
Collection Period and the interest portion of all prepayments received on
the
loans during the related Prepayment Period, less (x) the Servicing Fees with
respect to such loans and (y) amounts due to the Servicer or the Indenture
Trustee with respect to such loans, to the extent allocable to
interest,
(ii) the
portion of any Substitution Amount or purchase price paid with respect to
such
loans during the related Collection Period allocable to interest and the
interest portion of the Termination Price paid in connection with any optional
purchase of the Loans by the Servicer; and
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(iii) all
Net
Liquidation Proceeds and any other recoveries (net of any servicing expenses,
to
the extent allocable to interest, and unpaid Servicing Fees) collected with
respect to the loans during the related Collection Period, to the extent
allocable to interest.
Issuing
Entity, Owner Trust or Trust: The DEUTSCHE MORTGAGE SECURITIES, INC. TRUST
SERIES ____-__, a Delaware business trust, or its successor in
interest.
Issuing
Entity Request: A written order or request signed in the name of the Issuing
Entity by any one of its Authorized Officers and delivered to the Indenture
Trustee.
LIBOR:
On
each LIBOR Rate Adjustment Date, LIBOR shall be established by the Indenture
Trustee and as to any Accrual Period, LIBOR will equal the rate for United
States dollar deposits for one month which appears on the Dow Xxxxx Telerate
Screen Page 3750 as of 11:00 A.M., London time, on that LIBOR Rate Adjustment
Date. Dow Xxxxx Telerate Screen Page 3750 means the display designated as
page
3750 on the Telerate Service or any other page as may replace page 3750 on
that
service for the purpose of displaying London interbank offered rates of major
banks. If the rate does not appear on that page or any other page as may
replace
that page on that service, or if the service is no longer offered, any other
service for displaying LIBOR or comparable rates as may be selected by the
Indenture Trustee after consultation with the Servicer, the rate will be
the
Reference Bank Rate.
The
Reference Bank Rate will be determined on the basis of the rates at which
deposits in the U. S. Dollars are offered by the reference banks, which shall
be
three major banks that are engaged in transactions in the London interbank
market, selected by the Indenture Trustee after consultation with the Servicer.
The Reference Bank Rate will be determined as of 11:00 A M , London time,
on the
LIBOR Rate Adjustment Date to prime banks in the London interbank market
for a
period of one month in amounts approximately equal to the Class Principal
Balance of the Class A Notes. The Indenture Trustee will request the principal
London office of each of the reference banks to provide a quotation of its
rate.
If at least two quotations are provided, the rate will be the arithmetic
mean of
the quotations. If on that date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean of the rates quoted by one
or
more major banks in New York City, selected by the Indenture Trustee after
consultation with the Servicer, as of 11:00 A M , New York City time, on
that
date for loans in U S Dollars to leading European banks for a period of one
month in amounts approximately equal to the Class Principal Balance of the
Class
A Notes. If no quotations can be obtained, the rate will be LIBOR for the
prior
Payment Date; provided however, if, under the priorities listed previously
in
this paragraph, LIBOR for a Payment Date would be based on LIBOR for the
previous Payment Date for the third consecutive Payment Date, the Indenture
Trustee after consultation with the Servicer, shall select an alternative
comparable index over which the Indenture Trustee has no control, used for
determining one-month Eurodollar lending rates that is calculated and published
or otherwise made available by an independent party. LIBOR business day means
any day other than (a) a Saturday or a Sunday or (b) a day on which banking
institutions in the city of London, England or New York, New York are required
or authorized by law to be closed.
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The
establishment of LIBOR by the Indenture Trustee and the Indenture Trustee's
subsequent calculation of the Note Interest Rate applicable to the Class
A,
Class M-2 and Class B-1 Notes for the relevant Accrual Period, in the absence
of
manifest error, will be final and binding.
LIBOR
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on
which banking institutions in the city of London, England or New York, New
York
are required or authorized by law to be closed.
LIBOR
Rate Adjustment Date: With respect to the first Payment Date, the second
LIBOR
Business Day preceding the Closing Date, and thereafter, the second LIBOR
Business Day preceding each Payment Date.
Lien:
Any
mortgage, deed of trust, pledge, conveyance, hypothecation, assignment,
participation, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority right or interest or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC (other
than
any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing; provided,
however, that any assignment pursuant to Section 6.02 of the Servicing Agreement
shall not be deemed to constitute a Lien.
Liquidated
Loan: With respect to any Payment Date, any Loan in respect of which the
Servicer has determined, in accordance with the servicing procedures specified
in the Servicing Agreement, as of the end of the related Collection Period
that
substantially all Liquidation Proceeds which it reasonably expects to recover,
if any, with respect to the disposition of the related REO have been recovered.
In addition, the Servicer will treat any Loan that is 180 days or more
delinquent as having been finally liquidated.
Loans:
At
any time, the Loans that have been sold by the Seller under the Loan Purchase
Agreement, together with the Related Documents, and that remain subject to
the
terms thereof.
Loan
File: The file containing the Related Documents pertaining to a particular
Loan
and any additional documents required to be added to the Loan File pursuant
to
the Loan Purchase Agreements or the Servicing Agreement.
Loan
Purchase Agreement: The loan purchase agreement dated ___________ between
[Name
of Seller] as assignor and [___________] as assignee.
Loan
Rate: With respect to any Loan and any day, the per annum rate of interest
set
forth in the related Mortgage Note.
Loan
Schedule: The initial schedule of Loans as of the Cut-off Date set forth
in
Exhibit A of the Servicing Agreement, which schedule sets forth as to each
Loan,
among other things:
(i) the
Loan
identifying number (“LOAN #”);
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(ii) the
street address of the Mortgaged Property including state, city and zip code
(“ADDRESS”);
(iii) the
maturity of the Mortgage Note (“MATURITY DATE”);
(iv) the
Loan
Rate (“CUR RATE”);
(v) the
Principal Balance at origination (“ORG AMT”);
(vi) the
type
of property securing the Mortgage Note (“PROPERTY TYPE”);
(vii) the
appraised value (“APPRSL”);
(viii) the
initial scheduled monthly payment of principal, if any, and interest (“ORIGINAL
P & I”);
(ix) the
Cut-off Date Loan Balance (“CUT-OFF BAL”);
(x) the
Combined Loan-to-Value Ratio at origination (“CLTV”);
(xi) the
date
of the Mortgage Note (“NOTE DATE”);
(xii) the
original term to maturity of the Loan (“ORIGINAL TERM”);
(xiii) under
the
column “OCCP CODE,” a code indicating whether the Loan is secured by a non-owner
occupied residence;
(xiv) the
Principal Balance of any Loan senior thereto (“SR BAL”);
(xv) the
Credit Score (“CR SCORE”);
(xvi) the
debt
to income ratio (“DTI”);
(xvii) product
code (“PRODUCT CODE”);
(xviii) loan
purpose (“PURPOSE”); and
(xix) the
lien
position of the related Mortgage (“LIEN”).
Such
schedule may consist of multiple reports that collectively set forth all
of the
information required.
Lost
Note
Affidavit: With respect to any Loan as to which the original Mortgage Note
has
been permanently lost or destroyed and has not been replaced, an affidavit
from
the related Seller certifying that the original Mortgage Note has been lost,
misplaced or destroyed (together with a copy of the related Mortgage
Note).
Maximum
Interest Rate: ___% per annum with respect to the Class A Notes; ___% with
respect to the Class M-2 Notes and ___% with respect to the Class B-1
Notes.
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Monthly
Excess Cashflow: For any Payment Date, an amount equal to the portion of
the
Remittance Amount, if any, remaining after the payments of interest and
principal under Sections 3.05(b) (c) and (d) of the Indenture.
Monthly
Payment: With respect to any Loan and any Due Date, the payment of principal
and
interest due thereon in accordance with the amortization schedule at the
time
applicable thereto (after adjustment, if any, for partial Principal Prepayments
and for Deficient Valuations occurring prior to such Due Date but before
any
adjustment to such amortization schedule by reason of any bankruptcy, other
than
a Deficient Valuation, or similar proceeding or any moratorium or similar
waiver
or grace period).
Moody's:
Xxxxx'x Investors Service, Inc. or its successor in interest.
Mortgage:
The mortgage, deed of trust or other instrument creating a first, second
or
third lien on an estate in fee simple interest in real property securing
a
Loan.
Mortgage
File: The file containing the Related Documents pertaining to a particular
Loan
and any additional documents required to be additional documents required
to be
added to the Mortgage File pursuant to the Loan Purchase Agreement or the
Servicing Agreement.
Mortgage
Note: With respect to a Loan, the mortgage note pursuant to which the related
mortgagor agrees to pay the indebtedness evidenced thereby and secured by
the
related Mortgage as modified or amended.
Mortgaged
Property: The underlying property, including real property and improvements
thereon, securing a Loan.
Mortgagor:
The obligor or obligors under a Mortgage Note.
National
Housing Act: The National Housing Act of 1934, as amended.
Net
Delinquency Amount: With respect to any Payment Date, the excess, if any,
of (x)
the product of 3.20 and the Rolling Six-Month Delinquency Average over (y)
the
aggregate of the Monthly Excess Cashflow for the three immediately preceding
Payments Dates.
Net
Funds
Cap: For any Payment Date, will be the annual rate equal to (a ) a fraction,
expressed as a percentage, the numerator of which is the product of (1) the
Optimal Interest Remittance Amount for such date and (2) 12, and the denominator
of which is the Class Principal Balance of all of the notes immediately prior
to
such Payment Date, multiplied by (b) a fraction, the numerator of which is
30
and the denominator of which is the actual number of days in the immediately
preceding Accrual Period for the Class A, Class M-2 and Class B-1
Notes.
Net
Liquidation Proceeds: All amounts, net of unreimbursed and reasonable
out-of-pocket expenses received and retained in connection with the liquidation
of defaulted loans, through insurance or condemnation proceedings, by
foreclosure or otherwise, together with any net proceeds received on a monthly
basis with respect to any properties acquired on behalf of the noteholders
by
foreclosure or deed in lieu of foreclosure.
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Net
Loan
Rate: With respect to any Loan and any day, the related Mortgage Rate less
the
sum of the related Servicing Fee Rate.
Non-United
States Person: Any Person other than a United States Person.
Note
Interest Rate: For the Class A Notes, a rate per annum equal to the least
of (i)
LIBOR plus ____%; (ii) the Net Funds Cap for that Payment Date and (iii)
the
Maximum Note Interest Rate.
For
the
Class M-1 Notes, a rate per annum equal ____%.
For
the
Class M-2 Notes, a rate per annum equal to the least of (i) LIBOR plus ____%,
(ii) the Net Funds Cap for that Payment Date and (iii) the Maximum Note Interest
Rate.
For
the
Class B-1 Notes, a rate per annum equal to the least of (i) LIBOR plus ____%,
(ii) the Net Funds Cap for that Payment Date and (iii) the Maximum Note Interest
Rate.
For
the
Class B-2 Notes, a rate per annum equal to _____%, subject to the Available
Funds Cap for that Payment Date.
Note
Margin: With respect to the Class A Notes, ____% per annum. With respect
to the
Class M-1 Notes, ____% per annum. With respect to the Class B-1 Notes, ____%
per
annum.
Note
Owner: The Beneficial Owner of a Note.
Note
Register: The register maintained by the Note Registrar in which the Note
Registrar shall provide for the registration of Notes and of transfers and
exchanges of Notes.
Note
Registrar: The Indenture Trustee, in its capacity as Note
Registrar.
Noteholder:
The Person in whose name a Note is registered in the Note Register, except
that,
any Note registered in the name of the Depositor, the Issuing Entity or the
Indenture Trustee or any Affiliate of any of them shall be deemed not to
be
outstanding and the registered holder will not be considered a Noteholder
or
holder for purposes of giving any request, demand, authorization, direction,
notice, consent or waiver under the Indenture or the Owner Trust Agreement
provided that, in determining whether the Indenture Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes that the Indenture Trustee or the Owner Trustee
knows to be so owned shall be so disregarded. Owners of Notes that have been
pledged in good faith may be regarded as Holders if the pledgee establishes
to
the satisfaction of the Indenture Trustee or the Owner Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuing Entity, any other obligor upon the Notes or any Affiliate of any
of the
foregoing Persons.
Notes:
The Notes issued and outstanding at any time pursuant to the
Indenture.
Officer's
Certificate: With respect to the Servicer, a certificate signed by the
President, Managing Director, a Director, a Vice President or an Assistant
Vice
President, of the Servicer and delivered to the Indenture Trustee. With respect
to the Issuing Entity, a certificate signed by any Authorized Officer of
the
Issuing Entity, under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 10.01 of the Indenture, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference
in
the Indenture to an Officer's Certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuing Entity or the Servicer.
AA-15
Opinion
of Counsel: A written opinion of counsel. Any Opinion of Counsel for the
Servicer may be provided by in-house counsel for the Servicer if reasonably
acceptable to the Indenture Trustee and the Rating Agencies or counsel for
the
Depositor, as the case may be.
Optimal
Interest Remittance Amount: For any Payment Date will be equal to the excess
of
(i) the product of (1)(x) the weighted average of the rates of the loans
as of
the first day of the related Collection Period less the Servicing Fee Rate,
divided by (y) 12 and (2) the Aggregate Loan Balance for the immediately
preceding Payment Date, over (ii) any expenses that reduce the Interest
Remittance Amount that did not arise as a result of a default or delinquency
of
the loans.
Optional
Termination: The right of the Servicer to purchase the Loans after the aggregate
Principal Balance of the Loans as of the end of the related Collection Period
is
equal to or less than 10% of the Cut-off Date Balance, pursuant to Section
8.08
of the Servicing Agreement.
Optional
Termination Date: The Payment Date on which the Servicer exercises its Optional
Termination Right.
Original
Trust Agreement: The Owner Trust Agreement, dated as of _______________,
between
the Owner Trustee and the Depositor.
Outstanding:
With respect to the Notes, as of the date of determination, all Notes
theretofore executed, authenticated and delivered under this Indenture
except:
(i) Notes
theretofore cancelled by the Note Registrar or delivered to the Indenture
Trustee for cancellation; and
(ii) Notes
in
exchange for or in lieu of which other Notes have been executed, authenticated
and delivered pursuant to the Indenture unless proof satisfactory to the
Indenture Trustee is presented that any such Notes are held by a holder in
due
course.
Outstanding
Loan: As to any Payment Date, a Loan which was not (i) the subject of a
Principal Prepayment in full during any preceding Collection Period, (ii)
purchased, deleted or substituted for during any preceding Collection Period
pursuant to the Servicing Agreement or (iii) a Liquidated Loan during any
preceding Collection Period as of such Payment Date.
Overcollateralization
Amount: For any Payment Date will be equal to the amount, if any, by which
(x)
the Aggregate Loan Balance for such Payment Date exceeds (y) the aggregate
Class
Principal Balance of all of the Notes after giving effect to payments on
such
Payment Date.
Overcollateralization
Deficiency: For any Payment Date will be equal to the amount, if any, by
which
(x) the Targeted Overcollateralization Amount for such Payment Date exceeds
(y)
the Overcollateralization Amount for such Payment Date, calculated for this
purpose after giving effect to the reduction on such Payment Date of the
aggregate Class Principal Balance of the Notes resulting from the payment
of the
Principal Payment Amount on such Payment Date, but prior to allocation of
any
Applied Loss Amount on such Payment Date.
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Overcollateralization
Release Amount: For any Payment Date will be equal to the lesser of (x) the
Principal Remittance Amount for such Payment Date and (y) the amount, if
any, by
which (1) the Overcollateralization Amount for such date, calculated for
this
purpose on the basis of the assumption that 100% of the aggregate of the
Principal Remittance Amount for such date is applied on such date in reduction
of the aggregate of the Class Principal Balances of the notes, exceeds (2)
the
Targeted Overcollateralization Amount for such date.
Owner
Trust: _DEUTSCHE MORTGAGE SECURITIES, INC. TRUST SERIES ____-__, created
by the
Certificate of Trust pursuant to the Owner Trust Agreement and the Original
Trust Agreement.
Owner
Trust Agreement: The Amended and Restated Owner Trust Agreement, dated as
of
______________, between the Owner Trustee and the Depositor.
Owner
Trustee: [Name of Owner Trustee], not in its individual capacity but solely
as
Owner Trustee of the Trust, and its successors and assigns or any successor
owner trustee appointed pursuant to the terms of the Owner Trust
Agreement.
Owner
Trust Estate: The corpus of the Issuing Entity created by the Owner Trust
Agreement which consists of the Loans.
Payahead:
Any Scheduled Payment intended by the related mortgagor to be applied in
a
Collection Period subsequent to the Collection Period in which such payment
was
received.
Paying
Agent: (i) With respect to the Indenture, any paying agent or co-paying agent
appointed pursuant to Section 3.03 of the Indenture, which initially shall
be
the Indenture Trustee.
Payment
Account: The account established by the Indenture Trustee pursuant to Section
8.02 of the Indenture and Section 5.01 of the Servicing Agreement. Amounts
deposited in the Payment Account will be distributed by the Indenture Trustee
in
accordance with Section 3.05 of the Indenture.
Payment
Date: The 25th day of each month, or if such day is not a Business Day, then
the
next Business Day.
Percentage
Interest: With respect to any Note, the percentage obtained by dividing the
Note
Balance of such Note by the aggregate of the Note Balances of all Notes of
the
same Class.
Permitted
Investments: One or more of the following:
AA-17
(i) obligations
of or guaranteed as to principal and interest by the United States or any
agency
or instrumentality thereof when such obligations are backed by the full faith
and credit of the United States;
(ii) repurchase
agreements on obligations specified in clause (i) maturing not more than
one
month from the date of acquisition thereof, provided that the unsecured
obligations of the party agreeing to repurchase such obligations are at the
time
rated by each Rating Agency in its highest short-term rating
available;
(iii) federal
funds, certificates of deposit, demand deposits, time deposits and bankers'
acceptances (which shall each have an original maturity of not more than
90 days
and, in the case of bankers' acceptances, shall in no event have an original
maturity of more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution or
trust
company incorporated under the laws of the United States or any state thereof
or
of any domestic branch of a foreign depository institution or trust company;
provided that the debt obligations of such depository institution or trust
company (or, if the only Rating Agency is Standard & Poor's, in the case of
the principal depository institution in a depository institution holding
company, debt obligations of the depository institution holding company)
at the
date of acquisition thereof have been rated by each Rating Agency in its
highest
short-term rating available; and provided further that, if the only Rating
Agency is Standard & Poor's and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of
such
subsidiary are not separately rated, the applicable rating shall be that
of the
bank holding company; and, provided further that, if the original maturity
of
such short term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating
of such
institution shall be A-1+ in the case of Standard & Poor's if Standard &
Poor's is the Rating Agency;
(iv) commercial
paper (having original maturities of not more than 365 days) of any corporation
incorporated under the laws of the United States or any state thereof which
on
the date of acquisition has been rated by each Rating Agency in its highest
short-term rating available; provided that such commercial paper shall have
a
remaining maturity of not more than 30 days;
(v) a
money
market fund or a qualified investment fund rated by each Rating Agency in
its
highest long-term rating available; and
(vi) other
obligations or securities that are acceptable to each Rating Agency as a
Permitted Investment hereunder and will not reduce the rating assigned to
any
Securities by such Rating Agency below the lower of the then-current rating
or
the rating assigned to such Securities as of the Closing Date by such Rating
Agency, as evidenced in writing, provided that if the Servicer or any other
Person controlled by the Servicer is the Issuing Entity or the obligor of
any
obligation or security described in this clause (vi) such obligation or security
must have an interest rate or yield that is fixed or is variable based on
an
objective index that is not affected by the rate or amount of losses on the
Loans;
AA-18
provided,
however, that no instrument shall be a Permitted Investment if it represents,
either (1) the right to receive only interest payments with respect to the
underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and
the
principal and interest payments with respect to such instrument provide a
yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations References herein to the highest rating available on unsecured
long-term debt shall mean AAA (or the equivalent in the case of Moody's),
and
references herein to the highest rating available on unsecured commercial
paper
and short-term debt obligations shall mean A-1 (or the equivalent in the
case of
Moody's).
Person:
Any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or
any
agency or political subdivision thereof.
Physical
Note: Any note issued in fully registered, certificated form. The initial
Physical Notes shall be the Class B-2 Notes.
Predecessor
Note: With respect to any particular Note, every previous Note evidencing
all or
a portion of the same debt as that evidenced by such particular Note; and,
for
the purpose of this definition, any Note authenticated and delivered under
Section 4.03 of the Indenture in lieu of a mutilated, lost, destroyed or
stolen
Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed
or stolen Note.
Prepayment
Assumption: __% CPR.
Prepayment
Period: For any Payment Date, the calendar month preceding that Payment
Date.
Principal
Balance: For any Loan as of any Determination Date, is equal to its outstanding
principal balance as of the Cut-off Date, reduced by the principal received
on
or before the Due Date in the Collection Period immediately preceding such
Determination Date.
Principal
Prepayment: Any payment of principal made by the Mortgagor on a Loan which
is
received in advance of its scheduled Due Date and which is not accompanied
by an
amount of interest representing scheduled interest due on any date or dates
in
any month or months subsequent to the month of prepayment.
Principal
Payment Amount: For any Payment Date will be equal to the Principal Remittance
Amount for such date minus the Overcollateralization Release Amount, if any,
for
such date.
Principal
Remittance Amount: For any Payment Date will be equal to the sum of (1) all
Principal collected (other than Payaheads) in respect of Scheduled Payments
on
the Loans during the related Collection Period (less amounts due to the Servicer
and the Indenture Trustee with respect to the Loans, to the extent allocable
to
Principal) and the Principal portion of Payaheads previously received and
intended for application in the related Collection Period, (2) all Principal
Prepayments received during the related Prepayment Period, (3) the outstanding
principal balance of each Loan that was repurchased by the Seller or the
Servicer during the related Collection Period and the principal portion of
the
Termination Price paid in connection with any optional purchase of the Loans
by
the Servicer, (4) the portion of any Substitution Amount paid with respect
to
any replaced Loans during the related Collection Period allocable to Principal
and (5) all Net Liquidation Proceeds and any other recoveries (net of any
Servicing Expenses, to the extent allocable to Principal) collected with
respect
to the Loans during the related Collection Period, to the extent allocable
to
Principal.
AA-19
Proceeding:
Any suit in equity, action at law or other judicial or administrative
proceeding.
Purchase
Price: The meaning specified in Section 2.2(a) of the Loan Purchase
Agreements.
Qualified
Insurer: A mortgage guaranty insurance company duly qualified as such under
the
laws of the state of its principal place of business and each state having
jurisdiction over such insurer in connection with the insurance policy issued
by
such insurer, duly authorized and licensed in such states to transact a mortgage
guaranty insurance business in such states and to write the insurance provided
by the insurance policy issued by it, approved as an insurer by the Servicer
and
as a FNMA-approved mortgage insurer.
Rating
Agency: Any nationally recognized statistical rating organization, or its
successor, that rated the Securities at the request of the Depositor at the
time
of the initial issuance of the Securities. Initially, Xxxxx'x or S&P. If
such organization or a successor is no longer in existence, “Rating Agency”
shall be such nationally recognized statistical rating organization, or other
comparable Person, designated by the Depositor, notice of which designation
shall be given to the Indenture Trustee. References herein to the highest
short
term unsecured rating category of a Rating Agency shall mean A-1+ or better
in
the case of S&P and P-1 or better in the case of Moody's and in the case of
any other Rating Agency shall mean such equivalent ratings. References herein
to
the highest long-term rating category of a Rating Agency shall mean “AAA” in the
case of S&P and “Aaa” in the case of Moody's and in the case of any other
Rating Agency, such equivalent rating.
Realized
Loss: With respect to each Liquidated Loan, an amount (not less than zero)
equal
to (i) the Principal Balance of the Loan as of the date the Loan becomes
a
Liquidated Loan, plus (ii) interest at the Net Loan Rate from the Due Date
as to
which interest was last paid to Noteholders up to the last day of the month
in
which the Loan becomes a Liquidated Loan on the Principal Balance of such
Loan
outstanding during each Collection Period that such interest was not paid,
minus
(iii) the proceeds, if any, received during the month in which such Loan
becomes
a Liquidated Loan, to the extent applied as recoveries of interest at the
Net
Loan Rate and to principal of the Loan, net of the portion thereof reimbursable
to the Servicer or any Subservicer with respect to related expenses as to
which
the Servicer or Subservicer is entitled to reimbursement thereunder but which
have not been previously reimbursed.
Record
Date: With respect to the Notes and any Payment Date, the Business Day next
preceding such Payment Date and with respect to the Certificate and any Payment
Date, the last Business Day of the month preceding the month of such Payment
Date.
AA-20
Reference
Bank Rate: With respect to any Interest Period, as follows: the arithmetic
mean
(rounded upwards, if necessary, to the nearest one sixteenth of a percent)
of
the offered rates for United States dollar deposits for one month which are
offered by the Reference Banks as of 11:00 A.M., London, England time, on
the
second LIBOR Business Day prior to the first day of such Interest Period
to
prime banks in the London interbank market for a period of one month in amounts
approximately equal to the sum of the outstanding Note Principal Balance
of the
Class A Notes; provided that at least such Reference Banks provide such rate.
If
fewer than two offered rates appear, the Reference Bank Rate will be the
arithmetic mean of the rates quoted by one or more major banks in New York
City,
selected by the Indenture Trustee after consultation with the Servicer, as
of
11:00 a.m., New York time, on such date for loans in U.S. Dollars to leading
European Banks for a period of one month in amounts approximately equal to
the
aggregate outstanding Principal Balance of the Class A Notes. If no such
quotations can be obtained, the Reference Bank Rate shall be the Reference
Bank
Rate applicable to the preceding Interest Period.
Reference
Banks: Barclays Bank PLC, National Westminster Bank and Bankers Trust
Company.
Registered
Holder: The Person in whose name a Note is registered in the Note Register
on
the applicable Record Date.
Related
Documents: With respect to each Loan, the documents specified in Section
2.1(c)
of the Loan Purchase Agreement and any documents required to be added to
such
documents pursuant to the Loan Purchase Agreement, or the Servicing
Agreement.
Release
Agreement: A Release Agreement as defined in Section 3.02 of the Servicing
Agreement.
Remittance
Amount: The sum of the Interest Remittance Amount and the Principal Remittance
Amount.
REO:
A
Mortgaged Property that is acquired by the Issuing Entity in foreclosure
or by
deed in lieu of foreclosure.
Repurchase
Price: With respect to any Loan required to be repurchased on any date pursuant
to the Loan Purchase Agreement or purchased by the Servicer pursuant to the
Servicing Agreement, an amount equal to the sum of (i) 100% of the Loan Balance
thereof (without reduction for any amounts charged off) and (ii) unpaid accrued
interest at the Mortgage Rate (or with respect to the last day of the month
in
the month of repurchase, the Mortgage Rate will be the Mortgage Rate in effect
as to second to last day in such month) on the outstanding principal balance
thereof from the Due Date to which interest was last paid by the Mortgagor
to
the first day of the month following the month of purchase.
Responsible
Officer: With respect to the Indenture Trustee, any officer of the Indenture
Trustee with direct responsibility for the administration of the Owner Trust
Agreement and also, with respect to a particular matter, any other officer
to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
AA-21
Rolling
Six Month Delinquency Average: For any Payment Date will be the fraction,
expressed as a percentage, equal to the average of the Delinquency Rates
for
each of the six (or one through five, in the case of the first through fifth
Payment Dates) immediately preceding months.
Scheduled
Payment: For any Loan, the monthly scheduled payment of interest and principal,
as determined in accordance with the provisions of the related mortgage
note.
Securities
Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
Security:
Any of the Certificates or Notes.
Security
Instrument: A written instrument creating a valid first lien on a Mortgaged
Property securing a Mortgage Note, which may be any applicable form of mortgage,
deed of trust, deed to secure debt or security deed, including any riders
or
addenda thereto.
Securityholder
or Holder: Any Noteholder or a Certificateholder.
Seller:
[Name of Seller].
Senior
Enhancement Percentage: For any Payment Date will be the fraction, expressed
as
a percentage, the numerator of which is the sum of the Class Principal Balance
of the Class M-1, Class M-2, Class B-1 and Class B-2 Notes and the
Overcollateralization Amount (which, for purposes of this definition only,
shall
not be less than zero), in each case after giving effect to payments on such
Payment Date, and the denominator of which is the Aggregate Loan Balance
for
such Payment Date.
Senior
Principal Payment Amount: For any Payment Date on or after the Stepdown Date
with respect to such Payment Date, will be the amount, if any, by which (x)
the
Principal Balance of the Senior Notes immediately prior to such Payment Date
exceeds (y) the lesser of (A) the product of (i) approximately ____% and
(ii)
the Aggregate Loan Balance for such Payment Date and (B) the amount, if any,
by
which (i) the Aggregate Loan Balance for such Payment Date exceeds (ii) ____%
of
the Aggregate Loan Balance as of the Cut-off Date.
Servicer:
[Name of Servicer], a ____________ corporation, and its successors and
assigns.
Servicing
Agreement: The Servicing Agreement dated as of ___________ 1, ____ among
the
Issuing Entity, the Servicer and the Indenture Trustee.
Servicing
Certificate: A certificate completed and executed by a Servicing Officer
on
behalf of the Servicer in accordance with Section 4.01 of the Servicing
Agreement.
Servicing
Default: The meaning specified in Section 7.01 of the Servicing
Agreement.
AA-22
Servicing
Fee: With respect to any Loan and any Collection Period, the product of (i)
the
Servicing Fee Rate divided by 12 and (ii) the Loan Balance of such Loan as
of
the first day of such Collection Period.
Servicing
Fee Rate: With respect to any Loan, ____% per annum.
Servicing
Officer: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of the Loans whose name and specimen signature
appear on a list of servicing officers furnished to the Indenture Trustee
by the
Servicer, as such list may be amended from time to time.
Single
Note: A Note in the amount of $1,000.
Six-Month
Rolling Delinquency Average: With respect to each Payment Date, the average of
the Sixty-Day Delinquency Amounts for each of the six immediately preceding
Collection Periods.
Sixty-Day
Delinquency Amount: With respect to any Collection Period, an amount equal
to
the aggregate Principal Balance of the Loans that are sixty or more days
delinquent in payment of principal and interest at the end of the Collection
Period.
Standard
& Poor's: Standard & Poor's Ratings Services or its successor in
interest.
Stated
Value: With respect to any Loan, the value of the related Mortgaged Property
as
stated by the related Mortgagor in his or her application.
Stepdown
Date: For any Payment Date, the later to occur of (x) the Payment Date occurring
in ____________ and (y) the first Payment Date on which the Senior Enhancement
Percentage, calculated for this purpose only after taking into account payments
of principal on the Loans, but prior to any payment of the Principal Payment
Amount to the notes then entitled to payments of principal on that Payment
Date,
is greater than or equal to _____%.
Subordinate
Notes: The Class M-1, Class M-2, Class B-1 and Class B-2 Notes.
Subservicer:
Any Person with whom the Servicer has entered into a Subservicing Agreement
as a
Subservicer by the Servicer.
Subservicing
Account: An Eligible Account established or maintained by a Subservicer as
provided for in Section 3.02(c) of the Servicing Agreement.
Subservicing
Agreement: Any written contract between the Servicer and any Subservicer
relating to servicing and administration of certain Loans as provided in
Section
3.01 of the Servicing Agreement.
Subservicing
Fee: With respect to any Collection Period, any fee retained monthly by the
Subservicer which will be paid out of the Servicing Fee.
AA-23
Substitution
Amount: The amount, if any, by which the Principal Balance of a Loan required
to
be removed from the trust due to a breach of a representation and warranty
or
defective documentation exceeds the Principal Balance of the related substitute
loan, plus unpaid interest accrued thereon.
Targeted
Overcollateralization Amount: For any Payment Date prior to the Stepdown
Date,
the greater of (i) ____% of the Aggregate Loan Balance as of the Cut-off
Date or
(ii) the Net Delinquency Amount. With respect to any Payment Date on or after
the Stepdown Date, the greatest of (a) _____% of the Aggregate Loan Balance
for
such Payment Date, (b) the Net Delinquency Amount or (c) ____% of the Aggregate
Loan Balance as of the Cut-off Date.
Termination
Price: With respect to the Optional Termination, an amount equal to the greater
of (i) the sum of the Aggregate Loan Balance and accrued and unpaid interest
thereon at the weighted average of the Net Loan Rates through the day preceding
the Payment Date on which such purchase occurs and (ii) the sum of (a) the
aggregate Note Principal Balance of the Notes immediately prior to the Payment
Date on which such purchase occurs, (b) the aggregate of any Applied Loss
Amounts on the Notes remaining unpaid immediately prior to the Payment Date
on
which such purchase occurs, (c) the aggregate of the Current Interest on
the
Notes for the Payment Date on which such purchase occurs, and (d) the aggregate
of any Carryforward Interest on the Notes for the Payment Date on which such
purchase occurs.
Treasury
Regulations: Regulations, including proposed or temporary Regulations,
promulgated under the Code. References herein to specific provisions of proposed
or temporary regulations shall include analogous provisions of final Treasury
Regulations or other successor Treasury Regulations.
Trustee
Additional Expenses: All reasonable expenses and disbursements incurred or
made
by the Indenture Trustee or the Administrator in accordance with any of the
provisions of the Indenture or the Administration Agreement with respect
to: (A)
the reasonable compensation and the expenses and disbursements of its counsel
not associated with the closing of the issuance of the Notes, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Indenture Trustee or the
Administrator, to the extent that the Indenture Trustee or the Administrator
must engage such persons to perform acts or services hereunder, (C) printing
and
engraving expenses in connection with preparing any Definitive Notes and
(D) any
other reasonable expenses incurred other than in the ordinary course of its
business by the Indenture Trustee or the Administrator in connection with
its
duties hereunder. Trust Estate: The meaning specified in the Granting Clause
of
the Indenture.
Trust
Indenture Act or TIA: The Trust Indenture Act of 1939, as amended from time
to
time, as in effect on any relevant date.
UCC:
The
Uniform Commercial Code, as amended from time to time, as in effect in any
specified jurisdiction.
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United
States Person: A citizen or resident of the United States, a corporation
or a
partnership (including an entity treated as a corporation or partnership
for
United States federal income tax purposes) created or organized in, or under
the
laws of, the United States or any State thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in
regulations).
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