DEUTSCHE ALT-A SECURITIES, INC.
Depositor
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
and
HSBC BANK USA
Trustee
_____________________
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2003
_____________________
$246,636,830
Mortgage Pass-Through Certificates
Series 2003-1
TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................................................3
ARTICLE II CONVEYANCE OF TRUST FUND; ORIGINAL ISSUANCE OF CERTIFICATES..........................................33
Section 2.1 Conveyance of Trust Fund..........................................................................33
Section 2.2 Acceptance by Trustee.............................................................................33
Section 2.3 Repurchase or Substitution of Loans...............................................................33
Section 2.4 Authentication and Delivery of Certificates; Designation of Certificates as REMIC Regular and
Residual Interests............................................................................................36
Section 2.5 Representations and Warranties of the Master Servicer.............................................36
Section 2.6 Establishment of the Trust........................................................................38
ARTICLE III ADMINISTRATION AND SERVICING OF THE LOANS; ACCOUNTS.................................................39
Section 3.1 Master Servicer...................................................................................39
Section 3.2 REMIC-Related Covenants...........................................................................40
Section 3.3 Monitoring of Servicers...........................................................................40
Section 3.4 Fidelity Bond.....................................................................................41
Section 3.5 Power to Act; Procedures..........................................................................41
Section 3.6 Due-on-Sale Clauses; Assumption Agreements........................................................42
Section 3.7 Release of Mortgage Files.........................................................................42
Section 3.8 Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee..............43
Section 3.9 Standard Hazard Insurance and Flood Insurance Policies............................................44
Section 3.10 Presentment of Claims and Collection of Proceeds.................................................45
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies...........................................45
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and Documents.........................46
Section 3.13 Realization Upon Defaulted Loans.................................................................46
Section 3.14 Compensation for the Master Servicer.............................................................46
Section 3.15 REO Property.....................................................................................46
Section 3.16 Annual Officer's Certificate as to Compliance....................................................47
Section 3.17 Annual Independent Accountant's Servicing Report.................................................48
Section 3.18 Reports Filed with Securities and Exchange Commission............................................49
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Section 3.19 UCC..............................................................................................49
Section 3.20 Obligation of the Master Servicer in respect of Compensating Interest............................50
Section 3.21 Reserved.........................................................................................50
Section 3.22 Protected Accounts...............................................................................50
Section 3.23 Distribution Account.............................................................................51
Section 3.26 Permitted Withdrawals and Transfers from the Distribution Account................................52
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;............................................................55
Section 4.1 Distributions to Certificateholders...............................................................55
Section 4.2 Allocation of Realized Losses.....................................................................58
Section 4.3 Statements to Certificateholders..................................................................59
Section 4.4 Remittance Reports; Advances......................................................................61
Section 4.5 Compliance with Withholding Requirements..........................................................62
ARTICLE V THE CERTIFICATES......................................................................................63
Section 5.1 The Certificates..................................................................................63
Section 5.2 Certificates Issuable in Classes; Distributions of Principal and Interest; Authorized
Denominations.................................................................................................63
Section 5.3 Registration of Transfer and Exchange of Certificates.............................................64
Section 5.4 Mutilated, Destroyed, Lost or Stolen Certificates.................................................69
Section 5.5 Persons Deemed Owners.............................................................................70
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER................................................................71
Section 6.1 Liability of the Depositor and the Master Servicer................................................71
Section 6.2 Merger or Consolidation of the Depositor or the Master Servicer...................................71
Section 6.3 Limitation on Liability of the Depositor, the Master Servicer, the Servicers, the Securities
Administrator and Others......................................................................................71
Section 6.4 Limitation on Resignation of the Master Servicer..................................................72
SECTION 6.5 ASSIGNMENT OF MASTER SERVICING....................................................................73
Section 6.6 Rights of the Depositor in Respect of the Master Servicer.........................................73
ARTICLE VII DEFAULT............................................................................................74
Section 7.1 Master Servicer Events of Default.................................................................74
Section 7.2 Trustee to Act; Appointment of Successor..........................................................75
Section 7.3 Notification to Certificateholders................................................................76
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Section 7.4 Waiver of Master Servicer Events of Default.......................................................77
ARTICLE VIII CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR...........................................78
Section 8.1 Duties of Trustee and Securities Administrator....................................................78
Section 8.2 Certain Matters Affecting Trustee and Securities Administrator....................................79
Section 8.3 Trustee and Securities Administrator not Liable for Certificates or Loans.........................81
Section 8.4 Trustee and Securities Administrator May Own Certificates.........................................81
Section 8.5 Fees and Expenses of Trustee and Securities Administrator.........................................81
Section 8.6 Eligibility Requirements for Trustee and Securities Administrator.................................82
Section 8.7 Resignation and Removal of Trustee and Securities Administrator...................................82
Section 8.8 Successor Trustee or Securities Administrator.....................................................83
Section 8.9 Merger or Consolidation of Trustee or Securities Administrator....................................84
Section 8.10 Appointment of Co-Trustee or Separate Trustee....................................................84
Section 8.11 Appointment of Office or Agency..................................................................85
Section 8.12 Representations and Warranties...................................................................85
ARTICLE IX TERMINATION.........................................................................................87
Section 9.1 Termination Upon Purchase or Liquidation of All Loans.............................................87
Section 9.2 Additional Termination Requirements...............................................................89
ARTICLE X REMIC PROVISIONS.....................................................................................90
Section 10.1 REMIC Administration.............................................................................90
Section 10.2 Prohibited Transactions and Activities...........................................................92
Section 10.3 Indemnification.....................................................................................93
ARTICLE XI MISCELLANEOUS PROVISIONS............................................................................94
Section 11.1 Amendment........................................................................................94
Section 11.2 Recordation of Agreement; Counterparts...........................................................95
Section 11.3 Limitation on Rights of Certificateholders.......................................................95
Section 11.4 Governing Law....................................................................................96
Section 11.5 Notices..........................................................................................96
Section 11.6 Severability of Provisions.......................................................................97
Section 11.7 Notice to Rating Agencies........................................................................97
Section 11.8 Article and Section References...................................................................98
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Section 11.9 Grant of Security Interest.......................................................................98
Section 11.10 Third Party Beneficiaries.......................................................................99
EXHIBITS
Exhibit A-1 - Forms of Class A-[1][2][3] Certificates
Exhibit A-2 - Forms of Class A-PO Certificates
Exhibit A-3 - Forms of Class A-X Certificates
Exhibit A-4 - Forms of Class [M][B-1][B-2] Certificates
Exhibit A-5 - Forms of Class B-[3][4][5] Certificates
Exhibit A-6 - Forms of Class R Certificates
Exhibit B - Loan Schedule
Exhibit C - Form of Transfer Affidavit
Exhibit D - Form of Transferor Certificate
Exhibit E - Form of Investment Letter (Non-Rule 144A)
Exhibit F - Form of Rule 144A Investment Letter
Exhibit G - Form of Benefit Plan Affidavit
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This Pooling and Servicing Agreement, dated and effective as of August
1, 2003 (this "Agreement"), is executed by and among Deutsche Alt-A Securities,
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and securities
administrator (the "Securities Administrator"), and HSBC Bank USA, as trustee
(the "Trustee"). Capitalized terms used in this Agreement and not otherwise
defined have the meanings ascribed to such terms in Article I hereof.
PRELIMINARY STATEMENT
The Depositor at the Closing Date is the owner of the Loans and the
other property being conveyed by it to the Trustee for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from the
Trust Fund as consideration for its transfer to the Trust Fund of the Loans and
certain other assets and will be the owner of the Certificates. The Depositor
has duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Loans and the issuance to the Depositor of
the Certificates representing in the aggregate the entire beneficial ownership
of the Trust Fund. All covenants and agreements made by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee herein with
respect to the Loans and the other property constituting the Trust Fund are for
the benefit of the Holders from time to time of the Certificates. The Depositor,
the Master Servicer and the Securities Administrator are entering into this
Agreement, and the Trustee is accepting the trust created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Certificates issued hereunder, other than the Class B-3, Class B-4
and Class B-5 Certificates have been offered for sale pursuant to a Prospectus,
dated August 25, 2003, and a Prospectus Supplement, dated August 25, 2003 of the
Depositor (together, the "Prospectus"). The Class B-3, Class B-4 and Class B-5
Certificates have been offered for sale pursuant to a Private Placement
Memorandum dated August 28, 2003. The Trust Fund created hereunder is intended
to be the "Trust" as described in the Prospectus and the Private Placement
Memorandum and the Certificates are intended to be the "Certificates" described
therein.
(1) As provided herein, the Trustee shall elect to treat the segregated
pool of assets consisting of the Loans and other related assets in the
Trust Fund subject to this Agreement as a REMIC for federal income tax
purposes. The Class R Certificate shall represent the sole class of
"residual interests" in the REMIC for purposes of the REMIC Provisions
under federal income tax law.
INITIAL CLASS PRINCIPAL
REMITTANCE OR LAST SCHEDULED
DESIGNATION RATE NOTIONAL BALANCE DISTRIBUTION DATE*
----------- ---- ---------------- ------------------
Class A-1 5.50% $ 26,000,000 September 25, 2033
Class A-2 5.50% $ 209,600,000 October 25, 2021
Class A-3 5.50% $ 755,000 September 25, 2033
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Class A-PO 0.00% (1) $ 169,250 February 25, 2033
Class A-X 5.50% (2) $ 19,381,463(3) September 25, 2033
Class M 5.50% $ 5,550,000 September 25, 2033
Class B-1 5.50% $ 1,726,000 September 25, 2033
Class B-2 5.50% $ 1,110,000 September 25, 2033
Class B-3 5.50% $ 617,000 September 25, 2033
Class B-4 5.50% $ 493,000 September 25, 2033
Class B-5 5.50% $ 616,480 September 25, 2033
Class R+ 5.50% $ 100 September 25, 2033
* The Distribution Date in the month after the maturity date for the
latest maturing Loan.
+ The Class R Certificate is entitled to receive the Residual
Distribution Amount.
(1) The Class A-P Crtificates are not entitled to distributions of interest
and shall receive principal only in respect of the Discount Loans.
(2) For federal income tax purposes, the Class A-X Certificates will accrue
interest at a per annum rate equal to the weighted average of, with
respect to each Non-Discount Loan, the excess of (i) the Net Mortgage
Rate of such Mortgage Loan over (ii) 5.50%.
(3) The Class A-X Certificates accrue interest on the Class A-X Notional
Amount (as defined herein).
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W I T N E S S E T H
-------------------
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article:
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that master service mortgage loans of the same
type and quality as such Loan in the jurisdiction where the related Mortgaged
Property is located, to the extent applicable to the Master Servicer (except in
its capacity as successor to a Servicer), or (y) as provided in the applicable
Servicing Agreement, to the extent applicable to any Servicer, but in no event
below the standard set forth in clause (x).
ACCOUNT: The Distribution Account and any Protected Account as the
context may require.
ADVANCE: Either (i) a Monthly Advance made by a Servicer as such term
is defined in and pursuant to the related Servicing Agreement or (ii) an advance
made by the Master Servicer pursuant to Section 4.4.
AFFILIATE: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officer's Certificate of the Servicer or the Depositor to
determine whether any Person is an Affiliate of such party.
AGGREGATE CERTIFICATE PRINCIPAL BALANCE: At any given time, the sum of
the then current Class Principal Balances of all Classes of Certificates.
AGREEMENT: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
ANNIVERSARY: Each anniversary of the Cut-Off Date.
APPRAISED VALUE: The amount set forth in an appraisal made by or for
the mortgage originator in connection with its origination of each Loan.
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ASSIGNMENT: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction where the related Mortgaged Property is located to reflect of
record the sale and assignment of the Loan to the Trustee, which assignment,
notice of transfer or equivalent instrument may, if permitted by law, be in the
form of one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county.
ASSIGNMENT AGREEMENTS: Shall mean (i) the Assignment, Assumption and
Recognition Agreement, dated as of August 28, 2003, among the Seller, the
Depositor and National City, pursuant to which the National City Servicing
Agreement was assigned to the Depositor, (ii) the Assignment, Assumption and
Recognition Agreement, dated as of August 28, 2003, among the Seller, the
Depositor and Xxxxxx pursuant to which the Xxxxxx Servicing Agreement was
assigned to the Depositor and (iii) the Assignment, Assumption and Recognition
Agreement, dated as of August 28, 2003, among the Seller, the Depositor and
Chase, pursuant to which the Chase Servicing Agreement was assigned to the
Depositor.
AUTHORIZED DENOMINATION: With respect to the Certificates (other than
the Class A-3 Certificates and the Class R Certificate), a minimum initial
Certificate Principal Balance of $25,000 each and integral multiples of $1 in
excess thereof. With respect to the Class A-3 Certificates, a minimum initial
Certificate Principal Balance of $1,000 and integral multiples of $1 in excess
thereof. With respect to the Class R Certificate, one Certificate with a
Percentage Interest equal to 100%.
AVAILABLE DISTRIBUTION AMOUNT: With respect to a Distribution Date, the
sum of the following amounts:
(1) the total amount of all cash in the Distribution Account with
respect to such Distribution Date and not previously distributed (including
Liquidation Proceeds and Insurance Proceeds), except:
(a) all Prepaid Monthly Payments;
(b) all Curtailments received after the applicable Prepayment
Period;
(c) all Payoffs received after the applicable Prepayment
Period;
(d) Insurance Proceeds and Liquidation Proceeds on such Loans
received after the applicable Prepayment Period;
(e) all amounts which are due and reimbursable to the related
Servicer pursuant to the terms of the related Servicing Agreement or to
the Master Servicer, the Securities Administrator, the Trustee or the
Custodian pursuant to the terms of this Agreement;
(f) the Servicing Fee for each such Loan for such Distribution
Date and the Master Servicing Fee for each such Loan for such
Distribution Date;
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(g) all investment earnings, if any, on amounts on deposit in
the Distribution Account and each Protected Account; and
(h) Excess Liquidation Proceeds;
(2) to the extent advanced by a Servicer and/or the Master Servicer and
not previously distributed, the amount of any Advance made by a Servicer and/or
the Master Servicer with respect to such Distribution Date relating to the
Loans;
(3) to the extent advanced by the related Servicer and/or the Master
Servicer and not previously distributed, any amount payable as Compensating
Interest by the related Servicer and/or the Master Servicer on such Distribution
Date relating to the Loans; and
(4) the total amount, to the extent not previously distributed, of all
cash received by the Distribution Date by the Trustee or the Master Servicer, in
respect of a Purchase Obligation under Section 2.3 or any permitted repurchase
of a Loan.
BANKRUPTCY COVERAGE: As of the Cut-Off Date, $150,000, and thereafter,
the initial Bankruptcy Coverage amount of $150,000, less (a) any scheduled or
permissible reduction in the amount of Bankruptcy Coverage pursuant to this
definition and (b) Bankruptcy Losses allocated to the Certificates. The
Bankruptcy Coverage may be reduced upon written confirmation from each Rating
Agency that such reduction will not adversely affect the then current ratings
assigned to the Senior Certificates and the Subordinate Certificates by each
Rating Agency.
BANKRUPTCY LOSS: A loss on a Loan as reported by the related Servicer,
arising out of (i) a reduction in the scheduled Monthly Payment for such Loan by
a court of competent jurisdiction in a case under the United States Bankruptcy
Code, other than any such reduction that arises out of clause (ii) of this
definition of "Bankruptcy Loss," including, without limitation, any such
reduction that results in a permanent forgiveness of principal, or (ii) with
respect to any Loan, a valuation, by a court of competent jurisdiction in a case
under such Bankruptcy Code, of the related Mortgaged Property in an amount less
than the then outstanding Principal Balance of such Loan.
BENEFICIAL HOLDER: A Person holding a beneficial interest in any
Book-Entry Certificate as or through a Depository Participant or an Indirect
Depository Participant or a Person holding a beneficial interest in any
Definitive Certificate.
BOOK-ENTRY CERTIFICATES: The Class A Certificates, the Class M
Certificates, the Class B-1 Certificates and the Class B-2 Certificates,
beneficial ownership and transfers of which shall be made through book entries
as described in Section 5.1.
BUSINESS DAY: Any day other than a Saturday, a Sunday, or a day on
which banking institutions in Maryland, Minnesota or New York, are authorized or
obligated by law or executive order to be closed.
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CERTIFICATE: Any one of the Certificates issued pursuant to this
Agreement, executed and authenticated by or on behalf of the Securities
Administrator hereunder in substantially one of the forms set forth in Exhibits
X-0, X-0, X-0, X-0, A-5 and A-6 hereto.
CERTIFICATE PRINCIPAL BALANCE: For each Certificate of any Class, the
portion of the related Class Principal Balance, if any, represented by such
Certificate.
CERTIFICATE REGISTER: The register maintained pursuant to Section 5.3.
CERTIFICATEHOLDER OR HOLDER: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer, the Securities Administrator, the
Trustee or any Affiliate thereof shall be deemed not to be outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite percentage of Percentage Interests necessary
to effect any such consent has been obtained. The Trustee or the Securities
Administrator may conclusively rely upon a certificate of the Depositor, the
Seller or the Master Servicer in determining whether a Certificate is held by an
Affiliate thereof. All references herein to "Holders" or "Certificateholders"
shall reflect the rights of Certificate Owners as they may indirectly exercise
such rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee or the
Securities Administrator shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
Indirect Depository Participant.
CHASE: Chase Manhattan Mortgage Corporation, or any successor thereto.
CHASE SERVICING AGREEMENT: Shall mean the Mortgage Loan Purchase,
Warranties and Servicing Agreement, dated as of December 1, 2002, between the
Seller and Chase (as modified pursuant to the related Assignment Agreement).
CLASS: All Certificates having the same priority and rights to payments
from the Available Distribution Amount, designated as a separate Class, as set
forth in the forms of Certificates attached hereto as Exhibits X-0, X-0, X-0,
X-0, X-0 and A-6, as applicable.
CLASS A CERTIFICATES: The Class X-0, X-0, X-0, A-X and A-P
Certificates, collectively, and designated as such on the face thereof in
substantially the forms attached hereto as Exhibits X-0, X-0 or A-3, as
applicable.
CLASS A-X NOTIONAL AMOUNT: As of the Closing Date approximately
$19,381,463, and with respect to any Distribution Date thereafter, shall equal
the aggregate Scheduled Principal
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Balance of the Non-Discount Loans as of the Due Date in the month preceding the
month of such Distribution Date, multiplied by the following fraction:
the weighted average of the Net Mortgage Rates of the Non-Discount Loans as
of the first day of such month minus 5.500%
-------------------------------------------
5.500%
For federal income tax purposes, the Notional Amount of the Class A-X
Certificates shall equal the Scheduled Principal Balance of the Non-Discount
Loans.
CLASS PRINCIPAL BALANCE: For any Class of Certificates (other than the
Interest Only Certificates), the applicable initial Class Principal Balance set
forth in the Preliminary Statement hereto, corresponding to the rights of such
Class in payments of principal due to be passed through to Certificateholders
from principal payments on the Loans, as reduced from time to time by (x)
distributions allocable to principal made thereon and (y) the portion of
Realized Losses allocated thereto pursuant to Section 4.2 with respect to a
given Distribution Date. For any Distribution Date, the reduction of the Class
Principal Balance of any Class of Certificates pursuant to Section 4.2 shall be
deemed effective prior to the determination and distribution of principal on
such Class pursuant to Section 4.1(a). Notwithstanding the foregoing, the
Principal Balance of the most subordinate Class of Certificates outstanding at
any time shall be equal to the aggregate Scheduled Principal Balance of all of
the Loans less the Principal Balance of all other Classes of Certificates. The
Class Principal Balance for the Class A-1 Certificates shall be referred to as
the "Class A-1 Principal Balance", the Class Principal Balance for the Class A-2
Certificates shall be referred to as the "Class A-2 Principal Balance" and so
on. The Class Principal Balances of the Interest Only Certificates shall be
zero.
CLASS R CERTIFICATE: The Certificate designated as "Class R" on the
face thereof in substantially the form attached hereto as Exhibit A-6, which has
been designated as the sole class of "residual interests" in the REMIC pursuant
to Section 2.4.
CLASS R CERTIFICATEHOLDER: The registered Holder of the Class R
Certificate.
CLEARING AGENCY: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities and Exchange Act of 1934, as amended,
which initially shall be the Depository.
CLOSING DATE: August 28, 2003.
CODE: The Internal Revenue Code of 1986, as amended.
COMPENSATING INTEREST: For any Distribution Date, (i) with respect to
the Loans serviced by National City, an amount equal to the aggregate Prepayment
Interest Shortfalls and Curtailment Shortfalls for such Loans for such
Distribution Date, (ii) with respect to the Loans
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serviced by Xxxxxx and Chase, an amount equal to the lesser of (a) the aggregate
Prepayment Interest Shortfalls and Curtailment Shortfalls for such Loans for
such Distribution Date and (b) the Servicing Fee payable to Xxxxxx and Chase,
respectively, for such Distribution Date and (iii) with respect to the Master
Servicer, the amount described in Section 3.20 for such Distribution Date.
CORPORATE TRUST OFFICE: The principal corporate trust office of the
Trustee or the Securities Administrator, as the case may be, at which at any
particular time its corporate trust business in connection with this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at (i) with respect to the Trustee, HSBC Bank USA, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as the Trustee
may designate from time to time by notice to the Certificateholders, the
Depositor, the Master Servicer and the Securities Administrator, or (ii) with
respect to the Securities Administrator, (A) for Certificate transfer and
surrender purposes, Xxxxx Fargo Bank Minnesota, National Association, Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: DBALT 2003-1 and (B) for all
other purposes, Xxxxx Fargo Bank Minnesota, National Association, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: DBALT 2003-1, or at such
other address as the Securities Administrator may designate from time to time by
notice to the Certificateholders, the Depositor, the Master Servicer and the
Trustee.
CREDIT SUPPORT DEPLETION DATE: The Distribution Date on which the Class
Principal Balances of the Subordinate Certificates have been reduced to zero,
prior to giving effect to principal distributions thereon and the allocation of
Realized Losses on such Distribution Date.
CURTAILMENT: Any payment of principal on a Loan, made by or on behalf
of the related Mortgagor, other than a Monthly Payment, a Prepaid Monthly
Payment or a Payoff, which is applied to reduce the outstanding Principal
Balance of the Loan.
CURTAILMENT SHORTFALL: With respect to any Distribution Date and any
Curtailment received during the related Prepayment Period, an amount equal to
one month's interest on such Curtailment at the applicable Mortgage Interest
Rate on such Loan, net of the related Servicing Fee Rate.
CUSTODIAL AGREEMENT: The Custodial Agreement dated as of August 28,
2003, among the Trustee, Xxxxx Fargo as Custodian, National City, Xxxxxx and
Chase as such agreement may be amended or supplemented from time to time, or any
other custodial agreement entered into after the date hereof with respect to any
Loan subject to this Agreement.
CUSTODIAN: Either Xxxxx Fargo or any other custodian appointed under
any custodial agreement entered into after the date of this Agreement.
CUT-OFF DATE: August 1, 2003; except that with respect to each
Substitute Loan, the Cut-Off Date shall be the date of substitution.
DEFINITIVE CERTIFICATES: As defined in Section 5.3.
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DELETED LOAN: A Loan replaced or to be replaced by a Substitute Loan.
DENOMINATION: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Certificate Principal Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if
neither, the Percentage Interest appearing on the face thereof.
DEPOSITOR: Deutsche Alt-A Securities, Inc., a Delaware corporation, or
its successor-in-interest.
DEPOSITORY: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository, for purposes of
registering those Certificates that are to be Book-Entry Certificates, is CEDE &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York and a
Clearing Agency.
DEPOSITORY AGREEMENT: The Letter of Representations, dated August 28,
2003 by and among the Depository, the Depositor and the Trustee.
DEPOSITORY PARTICIPANT: A broker, dealer, bank, other financial
institution or other Person for whom the Depository effects book-entry transfers
and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to each Servicer, the day of the month
set forth as the Determination Date in the related Servicing Agreement.
DISCOUNT FRACTION: For any Discount Loan, the following fraction:
5.500% minus the Net Mortgage Rate
as of the Cut-Off Date on such Discount Loan
5.500%
DISCOUNT FRACTIONAL PRINCIPAL AMOUNT: On each Distribution Date, the
aggregate of the following with respect to each Discount Loan: an amount equal
to the product of (a) the related Discount Fraction multiplied by (b) the sum of
(i) the amounts described in the definition of Principal Distribution Amount for
such Distribution Date allocable to such Discount Loan, (ii) the amounts
described in the definition of Principal Prepayment Amount with respect to such
Distribution Date allocable to such Discount Loan and (iii) the amounts
described in the definition of Liquidation Principal with respect to such
Distribution Date allocable to such Discount Loan.
DISCOUNT FRACTIONAL PRINCIPAL SHORTFALL: For any Distribution Date
prior to the Credit Support Depletion Date, the aggregate of the following with
respect to each Discount Loan: an
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amount equal to the Discount Fraction of any Realized Loss incurred with respect
to such Discount Loan during the related Prepayment Period plus any such amounts
from prior Distribution Dates to the extent not previously distributed, other
than an Excess Loss; for any Distribution Date on or after the Credit Support
Depletion Date, zero.
DISCOUNT LOAN: Each Loans having a Net Mortgage Rate as of the Cut-Off
Date of less than 5.500%.
DISCOUNT NET MORTGAGE RATE: 5.50% per annum.
DISQUALIFIED ORGANIZATION: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code, and, for purposes of Article V herein, any
Person which is not a Permitted Transferee; provided, that a Disqualified
Organization does not include any Pass-Through Entity which owns or holds a
Class R Certificate and of which a Disqualified Organization, directly or
indirectly, may be a stockholder, partner or beneficiary.
DISTRIBUTION ACCOUNT: The trust account or accounts created and
maintained by the Securities Administrator pursuant to Section 3.25 for the
benefit of the Certificateholders and designated "Xxxxx Fargo Bank Minnesota,
National Association, as Securities Administrator, in trust for registered
holders of Deutsche Alt-A Securities, Inc. Alternative Loan Trust, Series
2003-1". Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement. The
Distribution Account must be an Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: The Business Day prior to such
Distribution Date.
DISTRIBUTION DATE: With respect to distributions on the Certificates,
the 25th day (or, if such 25th day is not a Business Day, the Business Day
immediately succeeding such 25th day) of each month, with the first such date
being September 25, 2003. The "related Due Date" for any Distribution Date is
the Due Date immediately preceding such Distribution Date.
XXXXXX: Xxxxxx Savings and Loan Association, F.A., or any successor
thereto.
XXXXXX SERVICING AGREEMENT: Shall mean the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of May 1, 2003, between the Seller
and Xxxxxx, (as modified pursuant to the related Assignment Agreement).
DUE DATE: The first day of each calendar month, which is the day on
which the Monthly Payment for each Loan is due, exclusive of any days of grace.
The "related Due Date" for any Distribution Date is the Due Date immediately
preceding such Distribution Date.
DUE PERIOD: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month in
which such Distribution Date occurs.
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ELIGIBLE ACCOUNT: Any account or accounts held and established by the
Securities Administrator in trust for the Certificateholders at any Eligible
Institution.
ELIGIBLE INSTITUTION: An institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of each Rating
Agency, (ii) with respect to the Distribution Account, an unsecured long-term
debt rating of at least one of the two highest unsecured long-term debt ratings
of each Rating Agency, or (iii) the approval of each Rating Agency.
ELIGIBLE INVESTMENTS: Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the following Distribution Date (or, with respect to the
Distribution Account maintained with the Securities Administrator, having a
scheduled maturity on or before the following Distribution Date; provided that,
such Eligible Investments shall be managed by, or an obligation of, the
institution that maintains the Distribution Account if such Eligible Investments
mature on the Distribution Date), regardless of whether any such obligation is
issued by the Depositor, the applicable Servicer, the Trustee, the Master
Servicer, the Securities Administrator or any of their respective Affiliates and
having at the time of purchase, or at such other time as may be specified, the
required ratings, if any, provided for in this definition:
(a) direct obligations of, or guaranteed as to full and timely
payment of principal and interest by, the United States or any agency or
instrumentality thereof, provided, that such obligations are backed by the full
faith and credit of the United States of America;
(b) direct obligations of, or guaranteed as to timely payment
of principal and interest by, Xxxxxxx Mac, Xxxxxx Xxx or the Federal Farm Credit
System, provided, that any such obligation, at the time of purchase or
contractual commitment providing for the purchase thereof, is qualified by each
Rating Agency as an investment of funds backing securities rated "AAA" in the
case of S&P and Moody's (the initial rating of the Class A Certificates);
(c) demand and time deposits in or certificates of deposit of,
or bankers' acceptances issued by, any bank or trust company, savings and loan
association or savings bank, provided, that the short-term deposit ratings
and/or long-term unsecured debt obligations of such depository institution or
trust company (or in the case of the principal depository institutions in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company) have, in the case of commercial paper, the
highest rating available for such securities by each Rating Agency and, in the
case of long-term unsecured debt obligations, one of the two highest ratings
available for such securities by each Rating Agency, or in each case such lower
rating as will not result in the downgrading or withdrawal of the rating or
ratings then assigned to any Class of Certificates by any Rating Agency but in
no event less than the initial rating of the Senior Certificates;
(d) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving one of the two
highest long-term debt ratings available for such securities by each Rating
Agency, or such lower rating as will not result in the
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downgrading or withdrawal of the rating or ratings then assigned to any Class of
Certificates by any Rating Agency;
(e) commercial or finance company paper (including both
non-interest-bearing discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one year after the date
of issuance thereof) that is rated by each Rating Agency in its highest
short-term unsecured rating category at the time of such investment or
contractual commitment providing for such investment, and is issued by a
corporation the outstanding senior long-term debt obligations of which are then
rated by each Rating Agency in one of its two highest long-term unsecured rating
categories, or such lower rating as will not result in the downgrading or
withdrawal of the rating or ratings then assigned to any Class of Certificates
by any Rating Agency but in no event less than the initial rating of the Senior
Certificates;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation rated in one of the two highest rating
levels available to such issuers by each Rating Agency at the time of such
investment, provided, that any such agreement must by its terms provide that it
is terminable by the purchaser without penalty in the event any such rating is
at any time lower than such level;
(g) repurchase obligations with respect to any security
described in clause (a) or (b) above entered into with a depository institution
or trust company (acting as principal) meeting the rating standards described in
(c) above;
(h) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States of
America or any State thereof and rated by each Rating Agency in one of its two
highest long-term unsecured rating categories at the time of such investment or
contractual commitment providing for such investment; provided, however, that
securities issued by any such corporation will not be Eligible Investments to
the extent that investment therein would cause the outstanding principal amount
of securities issued by such corporation that are then held as part of the
Distribution Account to exceed 20% of the aggregate principal amount of all
Eligible Investments then held in the Distribution Account;
(i) units of taxable money market funds (including those for
which the Trustee, the Securities Administrator, the Master Servicer or any
affiliate thereof receives compensation with respect to such investment) which
funds have been rated by each Rating Agency rating such fund in its highest
rating category or which have been designated in writing by each Rating Agency
as Eligible Investments with respect to this definition;
(j) if previously confirmed in writing to the Trustee and the
Securities Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to each Rating
Agency as a permitted investment of funds backing securities having ratings
equivalent to the initial rating of the Class A Certificates; and
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(k) such other obligations as are acceptable as Eligible
Investments to each Rating Agency;
provided, however, that such instrument continues to qualify as a "cash flow
investment" pursuant to Code Section 860G(a)(6) and that no instrument or
security shall be an Eligible Investment if (i) such instrument or security
evidences a right to receive only interest payments or (ii) the right to receive
principal and interest payments derived from the underlying investment provides
a yield to maturity in excess of 120% of the yield to maturity at par of such
underlying investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
EXCESS LIQUIDATION PROCEEDS: With respect to any Distribution Date, the
excess, if any, of aggregate Liquidation Proceeds received during the applicable
Prepayment Period over the amount that would have been received if a Payoff had
been made on the date the Liquidation Proceeds were received with respect to
each Loan which became a Liquidated Loan during such applicable Prepayment
Period.
EXCESS LOSS: A Special Hazard Loss incurred on a Loan in excess of the
Special Hazard Coverage, a Fraud Loss incurred on a Loan in excess of the Fraud
Coverage and a Bankruptcy Loss incurred on a Loan in excess of the Bankruptcy
Coverage.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
XXXXXX XXX: Xxxxxx Xxx, formerly known as the Federal National Mortgage
Association, or any successor thereto.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
FRAUD COVERAGE: As of the Cut-Off Date approximately $7,399,105;
thereafter, the Fraud Coverage shall be equal to (1) prior to the second
Anniversary, an amount equal to 3.00% of the aggregate Principal Balance of the
Loans as of the Cut-Off Date minus the aggregate amounts allocated to the
Certificates with respect to Fraud Losses on the Loans up to such date of
determination, (2) from the second to the third Anniversary, an amount equal to
2.00% of the aggregate Principal Balance of the Loans as of the Cut-Off Date
minus the aggregate amounts allocated to the Certificates with respect to Fraud
Losses on the Loans since the most recent Anniversary up to such date of
determination and (3) from the third to the fifth Anniversary, an amount equal
to (a) 1.00% of the aggregate Principal Balance of the Loans as of the Cut-Off
Date minus (b) the aggregate amounts allocated to the Certificates with respect
to Fraud Losses on the Loans since the most recent Anniversary up to such date
of determination. On and after the fifth Anniversary, the Fraud Coverage shall
be zero. Fraud Coverage may be reduced upon written confirmation from each
Rating Agency that such reduction will not adversely affect the then current
ratings assigned to the Senior Certificates and the Subordinate Certificates by
each Rating Agency.
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FRAUD LOSS: The occurrence of a loss on a Loan, as reported by the
related Servicer, arising from any action, event or state of facts with respect
to such Loan which, because it involved or arose out of any dishonest,
fraudulent, criminal, negligent or knowingly wrongful act, error or omission by
the Mortgagor, originator (or assignee thereof) of such Loan, or the related
Servicer, would result in an exclusion from, denial of, or defense to coverage
which otherwise would be provided by an insurance policy previously issued with
respect to such Loan.
XXXXXXX MAC: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
INDEPENDENT: When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, each Servicer and the
Master Servicer, (ii) does not have any direct financial interest or any
material indirect financial interest in the Depositor, either Servicer or the
Master Servicer or any Affiliate of either and (iii) is not connected with the
Depositor, either Servicer or the Master Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
INDIRECT DEPOSITORY PARTICIPANTS: Entities such as banks, brokers,
dealers or trust companies that clear through or maintain a custodial
relationship with a Depository Participant, either directly or indirectly.
INSURANCE PROCEEDS: Proceeds of any title policy, hazard policy or
other insurance policy covering a Loan, to the extent such proceeds are not to
be applied to the restoration of the related Mortgaged Property or released to
the Mortgagor in accordance with the applicable Servicing Agreement.
INTEREST ACCRUAL PERIOD: With respect to each Distribution Date and all
Certificates, the calendar month preceding the month in which the Distribution
Date occurs.
INTEREST DISTRIBUTION AMOUNT: On any Distribution Date, for any Class
of Certificates (other than the Class A-PO Certificates), the amount of interest
accrued on such Class during the related Interest Accrual Period which shall be
equal to (a) the product of (1) 1/12th of the Remittance Rate for such Class and
(2) the Class Principal Balance or Class A-X Notional Amount, as applicable, for
such Class before giving effect to allocations of Realized Losses in connection
with such Distribution Date or distributions to be made on such Distribution
Date, reduced by (b) Uncompensated Interest Shortfalls allocated to such Class
pursuant to the definition of "Uncompensated Interest Shortfall" and the
interest portion of Realized Losses allocated to such Class pursuant to Section
4.2. The Interest Distribution Amount for the Principal Only Certificates on any
Distribution Date shall equal zero.
INTEREST ONLY CERTIFICATES: The Class A-X Certificates.
INTEREST SHORTFALL AMOUNT: On any Distribution Date and for the Senior
Certificates (other than the Class A-PO Certificates), the amount by which the
aggregate Interest Distribution Amount payable to the Senior Certificates on
such Distribution Date exceeds the Available Distribution Amount.
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JUNIOR SUBORDINATE CERTIFICATES: The Class B-3, B-4 and B-5
Certificates, collectively.
LIQUIDATED LOAN: A Loan as to which a Servicer has determined in
accordance with its customary servicing practices that all amounts which it
expects to recover from or on account of such Loan, whether from Insurance
Proceeds, Liquidation Proceeds or otherwise, have been recovered. For purposes
of this definition, acquisition of a Mortgaged Property by the Trust Fund shall
not constitute final liquidation of the related Loan.
LIQUIDATION EXPENSES: Reasonable out of pocket expenses incurred by a
Servicer in connection with the liquidation of any defaulted Loan or property
acquired in respect thereof, including, without limitation, legal fees and
expenses, any unreimbursed amount expended by such Servicer pursuant to the
related Servicing Agreement respecting the related Loan and any unreimbursed
expenditures for real property taxes or for property restoration or preservation
relating to the Mortgaged Property that secured such Loan.
LIQUIDATION PRINCIPAL: With respect to a Distribution Date, the
principal portion of Liquidation Proceeds received with respect to each Loan
which became a Liquidated Loan (but not in excess of the Principal Balance
thereof) during the related Prepayment Period.
LIQUIDATION PROCEEDS: The amount (other than Insurance Proceeds or
amounts received in respect of the rental of any REO Property prior to REO
Disposition) received by the applicable Servicer pursuant to the related
Servicing Agreement or the Master Servicer in connection with (i) the taking of
all or a part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation, (ii) the liquidation of a defaulted Loan through a trustee's
sale, foreclosure sale or otherwise, or (iii) the repurchase, substitution or
sale of a Loan or an REO Property pursuant to or as contemplated by Section 2.3
or Section 9.1.
LOAN DOCUMENTS: The documents evidencing or relating to each Loan
delivered to the Custodian under the Custodial Agreement on behalf of the
Trustee.
LOAN SCHEDULE: The schedule, as amended from time to time, of Loans,
attached hereto as Exhibit B, which shall set forth as to each Loan the
following, among other things:
(i) the loan number of the Loan and name of the related
Mortgagor;
(ii) the street address of the Mortgaged Property
including city, state and zip code;
(iii) the Mortgage Interest Rate as of the Cut-Off Date;
(iv) the original term and maturity date of the related
Mortgage Note;
(v) the original Principal Balance;
(vi) the first payment date;
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(vii) the Monthly Payment in effect as of the Cut-Off Date;
(viii) the date of the last paid installment of interest;
(ix) the unpaid Principal Balance as of the close of
business on the Cut-Off Date;
(x) the Loan-to-Value ratio at origination;
(xi) the type of property and the Original Value of the
Mortgaged Property;
(xii) whether a primary mortgage insurance policy is in
effect as of the Cut-Off Date;
(xiii) the nature of occupancy at origination.
LOANS: The Mortgages and the related Mortgage Notes, each transferred
and assigned to the Trustee pursuant to the provisions hereof as from time to
time are held as part of the Trust Fund, as so identified in the Loan Schedule.
Each of the Loans is referred to individually in this Agreement as a "Loan".
LOAN-TO-VALUE RATIO: The original principal amount of a Loan divided by
the Original Value; however, references to "current Loan-to-Value Ratio" shall
mean the then current Principal Balance of a Loan divided by the Original Value.
LOCKOUT PERCENTAGE: For any Distribution Date, shall equal (i) the
Class A-1 Principal Balance; divided by (ii) the aggregate Scheduled Principal
Balance of the Loans as of the related Due Date (exclusive of the applicable
Discount Fraction of such Scheduled Principal Balance of each Discount Loan).
LOCKOUT PRINCIPAL AMOUNT: For any Distribution Date shall equal the
product of (i) the Lockout Percentage; (ii) the Step Down Percentage; and (iii)
the sum of (A) the Principal Distribution Amount for such Distribution Date
(exclusive of the portion thereof attributable to the Discount Fractional
Principal Amount); (B) the Principal Prepayment Amount for such Distribution
Date (exclusive of the portion thereof attributable to the Discount Fractional
Principal Amount); and (C) the Liquidation Principal with respect to the Loans
for such Distribution Date (exclusive of the portion thereof attributable to the
Discount Fractional Principal Amount).
MASTER SERVICER: As of the Closing Date, Xxxxx Fargo Bank Minnesota,
National Association and thereafter, its respective successors in interest who
meet the qualifications of this Agreement. The Master Servicer and the
Securities Administrator shall at all times be the same Person.
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MASTER SERVICER EVENT OF DEFAULT: One or more of the events described
in Section 7.1 hereof.
MASTER SERVICING FEE RATE: 0.015% per annum.
MASTER SERVICING FEE: As to each Loan and any Distribution Date, an
amount equal to one twelfth of the product of the Master Servicing Fee Rate
multiplied by the Scheduled Principal Balance of such Loan as of the Due Date in
the month preceding the month of such Distribution Date.
MONTHLY PAYMENT: The scheduled payment of principal and interest on a
Loan which is due on any Due Date for such Loan after giving effect to any
reduction in the amount of interest collectible from any Mortgagor pursuant to
the Relief Act.
MOODY'S: Xxxxx'x Investors Service, Inc. or its successor in interest.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
MORTGAGE FILE: The Loan Documents pertaining to a particular Loan.
MORTGAGE INTEREST RATE: For any Loan, the per annum rate at which
interest accrues on such Loan pursuant to the terms of the related Mortgage Note
without regard to any reduction thereof as a result of the Relief Act.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of August 28, 2003, between the Depositor and the Seller.
MORTGAGE NOTE: The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Loan.
MORTGAGE POOL: All of the Loans.
MORTGAGED PROPERTY: With respect to any Loan, the real property,
together with improvements thereto, securing the indebtedness of the Mortgagor
under the related Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NATIONAL CITY: National City Mortgage Co., or any successor thereto.
NATIONAL CITY SERVICING AGREEMENT: The Master Seller's Warranties and
Servicing Agreement, dated as of October 1, 2002 between the Seller and National
City as amended by Amendment Number One dated as of October 1, 2002 between the
Seller and National City (as modified pursuant to the related Assignment
Agreement).
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NET INTEREST SHORTFALL: For any Distribution Date, the sum of any
Prepayment Interest Shortfall, Relief Act Interest Shortfall and the portion of
Realize Losses attributable to interest.
NET MORTGAGE RATE: For each Loan and for any date of determination, a
per annum rate equal to the Mortgage Interest Rate for such Loan less the
Servicing Fee Rate and the Master Servicing Fee Rate.
NON-DISCOUNT LOAN: Each Loan having a Net Mortgage Rate as of the
Cut-Off Date greater than or equal to 5.500% per annum.
NONRECOVERABLE ADVANCE: With respect to any Loan, any Advance or
Servicing Advance which the related Servicer shall have determined to be a
Nonrecoverable Advance as defined in and pursuant to the related Servicing
Agreement, or which the Master Servicer shall have determined to be
nonrecoverable pursuant to Section 4.4, respectively, and which was, or is
proposed to be, made by such Servicer or the Master Servicer.
NON-U.S. PERSON: A Person that is not a U.S. Person.
OFFICER'S CERTIFICATE: With respect to any Person, a certificate signed
by the Chairman of the Board, the President or a Vice-President, however
denominated, of such Person (or, in the case of a Person which is not a
corporation, signed by the person or persons having like responsibilities), and
delivered to the Trustee.
OPINION OF COUNSEL: A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, a Servicer, the Securities
Administrator or the Master Servicer, acceptable to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the REMIC as a REMIC or
(b) compliance with the REMIC Provisions must be an opinion of Independent
counsel.
ORIGINAL VALUE: With respect to any Loan other than a Loan originated
for the purpose of refinancing an existing mortgage debt, the lesser of (a) the
Appraised Value (if any) of the Mortgaged Property at the time the Loan was
originated or (b) the purchase price paid for the Mortgaged Property by the
Mortgagor. With respect to a Loan originated for the purpose of refinancing
existing mortgage debt, the Original Value shall be equal to the lesser of (a)
the Appraised Value of the Mortgaged Property at the time the Loan was
originated or (b) the appraised value at the time the refinanced mortgage debt
was incurred.
OTS: The Office of Thrift Supervision, or any successor thereto.
OWNERSHIP INTEREST: With respect to any Subordinate Certificate or
Residual Certificate, any ownership or security interest in such Residual
Certificate, including any interest in a Residual Certificate as the Holder
thereof and any other interest therein whether direct or indirect, legal or
beneficial, as owner or as pledgee
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PASS-THROUGH ENTITY: Any regulated investment company, real estate
investment trust, common trust fund, partnership, trust or estate, and any
organization to which Section 1381 of the Code applies.
PAYOFF: Any payment of principal on a Loan by a Mortgagor equal to the
entire outstanding Principal Balance of such Loan, if received in advance of the
last scheduled Due Date for such Loan and is not accompanied by scheduled
interest due on any date or dates in any month or months subsequent to the month
of such payment-in-full.
PERCENTAGE INTEREST: (a) With respect to the right of each
Certificateholder of a particular Class in the distributions allocated to such
Class, "Percentage Interest" shall mean the percentage undivided beneficial
ownership interest evidenced by such Certificate of such Class, which percentage
shall equal:
(i) with respect to any Regular Interest Certificate (other
than the Interest Only Certificates), its Certificate Principal Balance
divided by the applicable Class Principal Balance;
(ii) with respect to the Interest Only Certificates, the
portion of the respective Class A-X Notional Amount evidenced by such
Certificate divided by the CLASS A-X NOTIONAL BALANCE; and
(iii) with respect to the Class R Certificate, the percentage
set forth on the face of such Certificate.
(b) With respect to the rights of each Certificate in connection with
Sections 5.3, 7.4 and 11.1, "Percentage Interest" shall mean the percentage
undivided beneficial interest evidenced by such Certificate in the Trust Fund,
which for purposes of such rights only shall equal:
(i) with respect to any Certificate (other than the Interest
Only Certificates), the product of (x) 98.00% and (y) the percentage
calculated by dividing its Certificate Principal Balance by the
Aggregate Certificate Principal Balance; provided, however, that the
product in (x) above shall be increased by one percent (1%) upon each
retirement of an Interest Only Certificate;
(ii) with respect to each Interest Only Certificate, one
percent (1%) of such Certificate Percentage Interest as calculated by
paragraph (a)(ii) of this definition; and
(iii) with respect to the Class R Certificate, zero.
PERMITTED TRANSFEREE: With respect to the holding or ownership of any
Residual Certificate, any Person other than (i) the United States, a State or
any political subdivision thereof, or any agency or instrumentality of any of
the foregoing, (ii) a foreign government or International Organization, or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
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exempt from the taxes imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Code Section 1381(a)(2)(C), (v) any electing large partnership under Section 775
of the Code, (vi) any Person from whom the Trustee or the Securities
Administrator has not received an affidavit to the effect that it is not a
"disqualified organization" within the meaning of Section 860E(e)(5) of the
Code, and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the transfer of an Ownership Interest in a Residual
Certificate to such Person may cause the Trust Fund to fail to qualify as a
REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in Code Section 7701 or successor provisions. A corporation shall not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof if all of its activities are subject to tax, and, with the
exception of the Xxxxxxx Mac, a majority of its board of directors is not
selected by such governmental unit.
PERSON: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PLAN: As defined in Section 5.3(e).
POOL STRIP RATE: With respect to each Non-Discount Loan, a per annum
rate equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over
(b) the Discount Net Mortgage Rate (but not less than 0.00%) for the
Non-Discount Loans.
PREPAID MONTHLY PAYMENT: Any Monthly Payment received prior to its
scheduled Due Date, which is intended to be applied to a Loan on its scheduled
Due Date and held in the related Protected Account until the related Servicer
Remittance Date following its scheduled Due Date.
PREPAYMENT INTEREST SHORTFALL: For any Distribution Date and any Loan
on which a Payoff was made by a Mortgagor during the related Prepayment Period,
an amount equal to one month's interest at the applicable Net Mortgage Rate on
such Loan less the amount of interest actually paid by the Mortgagor with
respect to such Payoff.
PREPAYMENT PERIOD: For any Distribution Date, the calendar month
immediately preceding such Distribution Date.
PRINCIPAL BALANCE: For any Loan and at the time of any determination,
the principal balance of such Loan remaining to be paid at the close of business
on the Cut-Off Date, after deduction of all principal payments due on or before
the Cut-Off Date whether or not received, reduced by the principal portion of
all amounts received with respect to such Loan after the Cut-Off Date and
distributed or to be distributed to Certificateholders through the Distribution
Date in the month of such determination. In the case of a Substitute Loan,
"Principal Balance" shall mean, at the time of any determination, the principal
balance of such Substitute Loan on the related Cut-Off Date, reduced by the
principal portion of all amounts received with respect to
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such Loan after the Cut-Off Date and distributed or to be distributed to
Certificateholders through the Distribution Date in the month of determination.
PRINCIPAL DISTRIBUTION AMOUNT: On any Distribution Date, the sum of (i)
the scheduled principal payments due on the related Due Date, (ii) the principal
portion of repurchase proceeds received with respect to any Loan which was
repurchased by the Depositor pursuant to a Purchase Obligation or as permitted
by this Agreement prior to such Distribution Date, and (iii) any other
unscheduled payments of principal which were received with respect to any Loan
during the applicable Prepayment Period, other than Payoffs, Curtailments and
Liquidation Principal.
PRINCIPAL ONLY CERTIFICATES: The Class A-PO Certificates.
PRINCIPAL PREPAYMENT: Any payment of principal on a Loan which
constitutes a Payoff or a Curtailment.
PRINCIPAL PREPAYMENT AMOUNT: On any Distribution Date and for the
Loans, the sum of (i) Curtailments received during the related Prepayment Period
and (ii) Payoffs received during the related Prepayment Period .
PRO RATA ALLOCATION: On any Distribution Date with respect to (i) the
allocation of the principal portion of certain losses relating to a Loan to the
Senior Certificates (other than the Class A-PO Certificates and the Class A-X
Certificates) and/or to the Subordinate Certificates, as applicable, pro rata,
according to their respective Class Principal Balances on such date of
allocation (except that if the loss is recognized with respect to a Discount
Loan, the Discount Fraction of such loss will be allocated to the Class A-PO
Certificates, and the remainder of such loss will be allocated as described
above in this definition without regard to this parenthetical); and (ii) the
allocation of the interest portion of certain losses relating to a Loan to the
Senior Certificates (other than the Class A-PO Certificates), and/or to the
Subordinate Certificates, as applicable, pro rata, first according to the
Interest Distribution Amounts due to such Classes on such date of allocation in
reduction thereof until the amount accrued but unpaid on such Distribution Date
has been reduced to zero and then, pro rata, according to their respective Class
Principal Balances on such date of allocation in reduction thereof until the
Certificate Principal Balances thereof have been reduced to zero.
PROTECTED ACCOUNT: An account or accounts established and maintained
for the benefit of the Certificateholders by each Servicer with respect to the
related Loans and with respect to REO Property pursuant to the applicable
Servicing Agreement.
PURCHASE OBLIGATION: An obligation of the Depositor to repurchase Loans
under the circumstances and in the manner provided in Section 2.3.
PURCHASE PRICE: With respect to any Loan to be purchased pursuant to a
Purchase Obligation, or any Loan to be purchased or repurchased relating to an
REO Property, and as confirmed by an Officers' Certificate from the Master
Servicer to the Trustee and the Securities
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Administrator, an amount equal to the sum of (i) 100% of the Principal Balance
thereof as of the date of purchase (or such other price as provided in Section
9.1), (ii) in the case of (x) a Loan, accrued interest on such Principal Balance
at the applicable Net Mortgage Rate from the date interest was last paid by the
related Mortgagor or the date an Advance by the applicable Servicer or the
Master Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section 4.1, through the end of the calendar month in
which the purchase is to be effected and (y) an REO Property, the sum of (1)
accrued interest on such Principal Balance at the applicable Net Mortgage Rate
from the date interest was last paid by the related Mortgagor or the date an
Advance by the applicable Servicer or the Master Servicer through the end of the
calendar month immediately preceding the calendar month in which such REO
Property was acquired, plus (2) REO Imputed Interest for such REO Property for
each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase had
been distributed as or to cover REO Imputed Interest in accordance with the
applicable Servicing Agreement, (iii) any unreimbursed Servicing Advances and
Advances (including Nonrecoverable Advances) and any unpaid Servicing Fees or
Master Servicing Fees allocable to such Loan or REO Property and (iv) in the
case of a Loan required to be purchased pursuant to Section 2.3, expenses
reasonably incurred or to be incurred by the Master Servicer, the Servicers, the
Trustee or the Securities Administrator in respect of the breach or defect
giving rise to a Purchase Obligation.
RATING AGENCY: Initially, each of S&P and Xxxxx'x; thereafter, each
nationally recognized statistical rating organization that has rated the
Certificates at the request of the Depositor, or their respective successors in
interest.
RATINGS: As of any date of determination, the ratings, if any, of the
Certificates as assigned by each Rating Agency.
REALIZED LOSS: For any Distribution Date and any Loan which became a
Liquidated Loan during the related Prepayment Period, the sum of (i) the
principal balance of such Loan remaining outstanding (after all recoveries of
principal have been applied thereto) and the principal portion of Nonrecoverable
Advances which have been reimbursed with respect to such Loan, and (ii) the
accrued interest on such Loan remaining unpaid and the interest portion of
Nonrecoverable Advances which have been reimbursed with respect to such Loan.
The amounts described in clause (i) shall be the principal portion of Realized
Losses and the amounts described in clause (ii) shall be the interest portion of
Realized Losses. For any Distribution Date and any Loan which is not a
Liquidated Loan, the amount of any Bankruptcy Loss incurred with respect to such
Loan as of the related Due Date shall be treated as a Realized Loss allocable to
principal.
RECORD DATE: With respect to each Distribution Date, the last Business
Day of the month immediately preceding the month of the related Distribution
Date.
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REFERENCE BANKS: Bankers Trust Company, Xxxxxxx'x Bank PLC, The Tokyo
Mitsubishi Bank and National Westminster Bank PLC and their successors in
interest; provided, however, that if any of the foregoing banks are not suitable
to serve as a Reference Bank, then any leading banks selected by the Securities
Administrator which are engaged in transactions in Eurodollar deposits in the
International Eurocurrency market (i) with an established place of business in
London, (ii) not controlling, under the control of or under common control with
the Depositor or any Affiliate thereof and (iii) which have been designated as
such by the Securities Administrator.
REGULAR INTEREST CERTIFICATES: The Certificates, other than the Class R
Certificate.
RELEASE DATE: The 40th day after the later of (i) commencement of the
offering of the Junior Subordinate Certificates and (ii) the Closing Date.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended, or similar state laws.
RELIEF ACT INTEREST SHORTFALL: With respect to any Distribution Date
and a Loan, any reduction in the amount of interest collectible on such Loan for
the most recently ended calendar month immediately preceding such Distribution
Date as a result of the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code, specifically, the segregated pool of assets subject
hereto, constituting the primary trust created hereby and to be administered
hereunder, with respect to which a REMIC election is to be made, consisting of:
(i) such Loans as from time to time are subject to this Agreement, together with
the Mortgage Files relating thereto, and together with all collections thereon
and proceeds thereof; (ii) any REO Property, together with all collections
thereon and proceeds thereof; (iii) the Trustee's rights with respect to the
Loans under all insurance policies required to be maintained pursuant to this
Agreement and any proceeds thereof; (iv) the Depositor's rights under the
Mortgage Loan Purchase Agreement and the Assignment Agreements (including any
security interest created thereby); (v) the Distribution Account, and such
assets that are deposited therein from time to time and any investments thereof,
together with any and all income, proceeds and payments with respect thereto.
Notwithstanding the foregoing, however, the REMIC specifically excludes all
payments and other collections of principal and interest due on the Loans on or
before the Cut-Off Date.
REMIC PROVISIONS: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of the Code, and related provisions, and proposed, temporary and final
regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time.
REMITTANCE RATE: For each Class of interest bearing Certificates, the
per annum rate set forth as the Remittance Rate for such Class in the
Preliminary Statement hereto.
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REMITTANCE REPORT: A report by the Securities Administrator pursuant to
Section 4.3.
REO DISPOSITION: The sale or other disposition of an REO Property on
behalf of the REMIC.
REO IMPUTED INTEREST: As to any REO Property, for any calendar month
during which such REO Property was at any time part of the REMIC, one month's
interest at the applicable Net Mortgage Rate on the Scheduled Principal Balance
of such REO Property (or, in the case of the first such calendar month, of the
related Loan, if appropriate) as of the close of business on the Distribution
Date in such calendar month.
REO PROPERTY: A Mortgaged Property, title to which has been acquired by
a Servicer on behalf of the Trust Fund through foreclosure, deed in lieu of
foreclosure or otherwise.
RESIDUAL CERTIFICATE: The Class R Certificate designated the sole Class
of "residual interests" in the REMIC for purposes of Section 860G(a)(2) of the
Code.
RESIDUAL DISTRIBUTION AMOUNT: On any Distribution Date, any portion of
the Available Distribution Amount remaining after all distributions to the
Certificates pursuant to Section 4.1(a)(I) (1) through (8) or 4.1(a) (II) (1)
through (4) as applicable for such Distribution Date. (Upon termination of the
obligations created by this Agreement and the Trust Fund created hereby, the
amounts which remain on deposit in the Distribution Account after payment to the
Certificateholders of the amounts set forth in Section 9.1 of this Agreement,
and subject to the conditions set forth therein.)
RESPONSIBLE OFFICER: When used with respect to the Trustee, any officer
in the corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject. When used with respect to the Master Servicer or the Securities
Administrator, the Chairman or Vice-Chairman of the Board of Directors or
Trustees, the Chairman or Vice-Chairman of the Executive or Standing Committee
of the Board of Directors or Trustees, the President, the Chairman of the
Committee on Trust Matters, any Vice-President, any Assistant Vice-President,
the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer,
the Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust
Officer, the Controller, any Assistant Controller or any other officer
customarily performing functions similar to those performed by any of the
above-designated officers and in each case having direct responsibility for the
administration of this 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. When used with respect
to the Depositor or any other Person, the Chairman or Vice-Chairman of the Board
of Directors, the Chairman or Vice-Chairman of any executive committee of the
Board of Directors, the President, any Vice-President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, or any other
officer of the Depositor customarily performing functions similar to those
performed by any of the above-designated officers and also, with respect to a
particular matter, any other
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officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
S&P: Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, Inc. provided, that at any time it is a Rating Agency.
SCHEDULED PRINCIPAL BALANCE: With respect to any Loan and a Due Date,
the unpaid principal balance of such Loan as specified in the amortization
schedule (before any adjustment to such schedule by reason of bankruptcy or
similar proceeding or any moratorium or similar waiver or grace period) for such
Due Date, after giving effect to any previously applied Curtailments, the
payment of principal on such Due Date and any reduction of the principal balance
of such Loan by a bankruptcy court, irrespective of any delinquency in payment
by the related Mortgagor.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: As of the Closing Date, Xxxxx Fargo Bank
Minnesota, National Association and thereafter, its respective successors in
interest who meet the qualifications of this Agreement. The Securities
Administrator and the Master Servicer shall at all times be the same Person.
SELLER: Deutsche Bank AG New York Branch, or its successor in interest,
in its capacity as seller under the Mortgage Loan Purchase Agreement and in its
capacity as assignor under the Assignment Agreements.
SENIOR CERTIFICATES: Class A-1, Class A-2, Class A-3, Class A-X, Class
A-P and Class R Certificates.
SENIOR LIQUIDATION AMOUNT: For any Distribution Date and any Loan which
became a Liquidated Loan during the related Prepayment Period, the lesser of:
(i) the Senior Percentage of the Principal Balance of such Loan (exclusive with
respect to a Discount Loan, of the Discount Fraction thereof), and (ii) the
related Senior Prepayment Percentage of the Liquidation Principal with respect
to such Loan (exclusive with respect to a Discount Loan, of the Discount
Fraction thereof).
SENIOR PERCENTAGE: As of the Closing Date, approximately 95.90%, and
thereafter, with respect to any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is the aggregate Class Principal Balances of
the Senior Certificates immediately preceding such Distribution Date (other than
the Class A-PO Certificates and Class A-X Certificates) and the denominator of
which is the aggregate Scheduled Principal Balance of the Loans, (exclusive of
the Discount Fraction of the Scheduled Principal Balance of each Discount Loan),
in each case as of the first day of the related Due Period.
SENIOR PREPAYMENT PERCENTAGE: (i) On any Distribution Date occurring
before the Distribution Date in September 2008, 100%; (ii) on any other
Distribution Date on which the
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Senior Percentage for such Distribution Date exceeds the Senior Percentage as of
the Cut-Off Date, 100%; and (iii) on any other Distribution Date in each of the
months of August 2008 and thereafter, 100%, unless:
(a) the mean aggregate Principal Balance of the Loans which
are 60 or more days delinquent (including loans in foreclosure,
bankruptcy PERCENTAGE OF and property held by the Trust Fund) for each
of the immediately preceding THE AGGREGATE six calendar months is less
than or equal to 50% of the Subordinate Amount SUBORDINATE as of such
Distribution Date, and AMOUNT AS OF THE CUT-OFF
(b) cumulative Realized Losses on the Loans allocated to the
DATE Subordinate Certificates are less than or equal to the following
amounts:
PERCENTAGE OF THE AGGREGATE
SUBORDINATE AMOUNT AS OF THE
DISTRIBUTION DATE OCCURRING IN CUT-OFF DATE
------------------------------ ------------
September 2008 through August 2009................. 30%
September 2009 through August 2010................. 35%
September 2010 through August 2011................. 40%
September 2011 through August 2012................. 45%
September 2012 and thereafter...................... 50%
in which case, the Senior Prepayment Percentage shall be as
follows:
DISTRIBUTION DATE OCCURRING IN SENIOR PREPAYMENT PERCENTAGE
------------------------------ ----------------------------
September 2003 through August 2008............. 100%
September 2008 through August 2009............. Senior Percentage + 70% of Subordinate Percentage
September 2009 through August 2010............. Senior Percentage + 60% of Subordinate Percentage
September 2010 through August 2011............. Senior Percentage + 40% of Subordinate Percentage
September 2011 through August 2012............. Senior Percentage + 20% of Subordinate Percentage
September 2012 and thereafter.................. Senior Percentage
If on any Distribution Date the allocation to the Senior Certificates
(other than the Class A-PO Certificates and Class A-X Certificates) of Principal
Prepayments in the percentage required would reduce the sum of the Class
Principal Balances of the Senior Certificates (other than the Class A-PO
Certificates and Class A-X Certificates) below zero, the Senior Prepayment
Percentage for such Distribution Date shall be limited to the percentage
necessary to reduce such sum to zero. Notwithstanding the foregoing, however, on
each Distribution Date, the Class A-PO Certificates shall receive the Discount
Fraction of all principal payments, including, without limitation, Principal
Prepayments, received in respect of each Discount Loan.
SENIOR PRINCIPAL AMOUNT: For any Distribution Date, an amount equal to
the sum of (a) the Senior Percentage of the Principal Distribution Amount for
such Distribution Date (exclusive of the portion thereof attributable Discount
Fractional Principal Amount for such Distribution
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Date), (b) the Senior Prepayment Percentage of the Principal Prepayment Amount
for such Distribution Date (exclusive of the portion thereof attributable to
Discount Fractional Principal Amount for such Distribution Date) and (c) the
Senior Liquidation Amount for such Distribution Date.
SENIOR SUBORDINATE CERTIFICATES: The Class STEP DOWN PERCENTAGE M,
Class B-1 and Class B-2 Certificates, collectively.
SERVICER: National City, Xxxxxx or Chase, as applicable, or any
successor appointed under the applicable Servicing Agreement.
SERVICER REMITTANCE DATE: With respect to each Distribution Date shall
mean (i) with respect to National City, the 18th day of the calendar month in
which such Distribution Date occurs or, if such 18th day is not a Business Day,
the Business Day immediately following such 18th day and (ii) with respect to
Xxxxxx and Chase, the 18th day of the calendar month in which such Distribution
Date occurs or, if such 18th day is not a Business Day, the Business Day
immediately preceding such 18th day.
SERVICING ADVANCES: The customary reasonable and necessary
"out-of-pocket" costs and expenses incurred by the applicable Servicer in
connection with a default, delinquency or other unanticipated event by the
applicable Servicer in the performance of its servicing obligations, including,
but not limited to, the cost of (i) the preservation, restoration and protection
of a Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures, in respect of a particular Loan and (iii) the management
(including reasonable fees in connection therewith) and liquidation of any REO
Property. No Servicer shall be required to make any Servicing Advance in respect
of a Loan or REO Property that, in the good faith business judgment of such
Servicer, would not be ultimately recoverable from related Insurance Proceeds or
Liquidation Proceeds on such Loan or REO Property as provided herein.
SERVICING AGREEMENT: The National City Servicing Agreement, the Chase
Servicing Agreement or the Xxxxxx Servicing Agreement.
SERVICING FEE: With respect to each Loan and for any Distribution Date,
an amount equal to one twelfth of the product of the Servicing Fee Rate
multiplied by the Scheduled Principal Balance of such Loan as of the Due Date in
the month preceding the month of such Distribution Date. The Servicing Fee is
payable solely from collections of interest on the Loans or as otherwise
provided in the related Servicing Agreement.
SERVICING FEE RATE: 0.25% per annum.
SERVICING OFFICER: Any individual 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 Trustee and the
Securities Administrator on the Closing Date by each Servicer and the Master
Servicer, as such lists may from time to time be amended.
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SPECIAL HAZARD COVERAGE: As of the Cut-Off Date approximately
$2,466,368, and thereafter on each Anniversary, the Special Hazard Coverage
shall be reduced, to an amount equal to the lesser of (1) the greatest of (a)
the aggregate Principal Balance of the Loans located in the California zip code
containing the largest aggregate Principal Balance of the Loans, (b) 1.00% of
the aggregate unpaid Principal Balance of the Loans and (c) twice the Principal
Balance of the largest Loan, in each case calculated as of the Due Date in the
immediately preceding month, and (2) the initial Special Hazard Coverage amount
of $2,466,368 as reduced by the Special Hazard Losses with respect to the Loans
allocated to the Certificates since the Cut-Off Date. Special Hazard Coverage
may be reduced upon written confirmation from each Rating Agency that such
reduction will not adversely affect the then current ratings assigned to the
Senior Certificates and the Subordinate Certificates by each Rating Agency.
SPECIAL HAZARD LOSS: The occurrence of any direct physical loss or
damage to a Mortgaged Property, as reported by the related Servicer, not covered
by a standard hazard maintenance policy with extended coverage which is caused
by or results from any cause except: (i) fire, lightning, windstorm, hail,
explosion, riot, riot attending a strike, civil commotion, vandalism, aircraft,
vehicles, smoke, sprinkler leakage, except to the extent of that portion of the
loss which was uninsured because of the application of a co-insurance clause of
any insurance policy covering these perils; (ii) normal wear and tear, gradual
deterioration, inherent vice or inadequate maintenance of all or part thereof;
(iii) errors in design, faulty workmanship or materials, unless the collapse of
the property or a part thereof ensues and then only for the ensuing loss; (iv)
nuclear reaction or nuclear radiation or radioactive contamination, all whether
controlled or uncontrolled and whether such loss be direct or indirect,
proximate or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by this definition of Special Hazard Loss; (v)
hostile or warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or expected
attack (a) by any government or sovereign power (dejure or defacto), or by an
authority maintaining or using military, naval or air forces, (b) by military,
naval or air forces, or (c) by an agent of any such government, power, authority
or forces; (vi) any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; (vii) insurrection, rebellion, revolution,
civil war, usurped power or action taken by governmental authority in hindering,
combating or defending against such occurrence; or (viii) seizure or destruction
under quarantine or customs regulations, or confiscation by order of any
government or public authority.
STARTUP DAY: With respect to the REMIC, the day designated as such
pursuant to Section 10.1(b) hereof.
STEP DOWN PERCENTAGE: For any Distribution Date with respect to the
Loans shall be the percentage indicated below:
DISTRIBUTION DATE OCCURRING IN STEP DOWN PERCENTAGE
------------------------------ --------------------
September 2003 through August 2008................. 0%
September 2008 through August 2009................. 30%
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September 2009 through August 2010................. 40%
September 2010 through August 2011................. 60%
September 2011 through August 2012................. 80%
September 2012 and thereafter...................... 100%
SUBORDINATE AMOUNT: On any date of determination, the excess of the
aggregate Scheduled Principal Balance of the Loans as of such date over the
aggregate Certificate Principal Balances of the Senior Certificates then
outstanding.
SUBORDINATE CERTIFICATES: The Class M, Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-5 Certificates, collectively, and designated as such on
the face thereof in substantially the form attached hereto as Exhibits A-4 and
A-5, as applicable, and for purposes of this Agreement, the "order of seniority"
from highest to lowest of such certificates shall be the order designated in the
beginning of this definition.
SUBORDINATE LIQUIDATION AMOUNT: For a Distribution Date, the excess of
(i) Liquidation Principal for the Loans which became Liquidated Loans during the
related Prepayment Period, over (ii) the sum of the Senior Liquidation Amount
for such Distribution Date and the applicable Discount Fraction of Liquidation
Principal received with respect to each Discount Loan, if any, during the
related Prepayment Period.
SUBORDINATE PERCENTAGE: As of the Closing Date approximately 4.10%, and
thereafter, with respect to any Distribution Date, 100% minus the Senior
Percentage for such date.
SUBORDINATE PREPAYMENT PERCENTAGE: As of the Closing Date,
approximately 0% and thereafter, with respect to any Distribution Date, the
excess of 100% minus the Senior Prepayment Percentage.
SUBORDINATE PRINCIPAL AMOUNT: With respect to a Distribution Date and
the Loans, an amount equal to the sum of:
(1) the Subordinate Percentage of the Principal Distribution
Amount (exclusive of the portion thereof attributable to the
Discount Fractional Principal Amount);
(2) the Subordinate Principal Prepayment Amount; and
(3) the Subordinate Liquidation Amount;
provided, however, that the Subordinate Principal Amount with
respect to the Loans shall be reduced by the amounts required to be distributed
to the Class A-PO Certificates with respect to the Discount Fractional Principal
Shortfall on such Distribution Date. Any reduction in the Subordinate Principal
Amount pursuant to the foregoing proviso shall offset the amount calculated
pursuant to clause (1), clause (3) and clause (2), in such order of priority.
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SUBORDINATE PRINCIPAL PREPAYMENT AMOUNT: For any Distribution Date, the
related Subordinate Prepayment Percentage of the Principal Prepayment Amount for
such Distribution Date (exclusive of the portion thereof attributable to the
Discount Fractional Principal Amount).
SUBORDINATION LEVEL: On any specified date and any Class of Subordinate
Certificates, the percentage obtained by dividing: (1) the sum of the Class
Principal Balances of all Classes of Certificates which are subordinate in right
of payment to such Class as of such date, before giving effect to distributions
or allocations of Realized Losses on such date; by (2) the sum of the Class
Principal Balances of all Classes of Certificates as of such date, before giving
effect to distributions or allocations of Realized Losses on such date.
SUBSTITUTE LOAN: A mortgage loan substituted for a Deleted Loan
pursuant to the terms of this Agreement which must, on the date of such
substitution, (i) have an outstanding principal balance, after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, not in excess of the Scheduled Principal Balance of the
Deleted Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a Mortgage Interest Rate not less than (and not
more than one percentage point in excess of) the Mortgage Interest Rate of the
Deleted Loan, (iii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Loan, (iv) have the same Due
Date as the Due Date on the Deleted Loan, (v) have a Loan-to-Value Ratio as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted Loan as of such date, (vi) have a risk grading at least equal to the
risk grading assigned on the Deleted Loan, (vii) is a "qualified mortgage" as
defined in the REMIC Provisions and (vii) conform to each representation and
warranty set forth in Section 6 of the Mortgage Loan Purchase Agreement
applicable to the Deleted Loan. In the event that one or more mortgage loans are
substituted for one or more Deleted Loans, the amounts described in clause (i)
hereof shall be determined on the basis of aggregate principal balances, the
Mortgage Interest Rates described in clause (ii) hereof shall be determined on
the basis of weighted average Mortgage Interest Rates, the terms described in
clause (iii) hereof shall be determined on the basis of weighted average
remaining term to maturity, the Loan-to-Value Ratios described in clause (v)
hereof shall be satisfied as to each such mortgage loan, the risk gradings
described in clause (vi) hereof shall be satisfied as to each such mortgage loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (vii) hereof must be
satisfied as to each Substitute Loan or in the aggregate, as the case may be. In
the event that the Deleted Loan is a Discount Loan, the Substitute Loan(s) shall
be deemed to be a Discount Loan(s) regardless of the Net Mortgage Rate thereof.
TAX MATTERS PERSON: The Holder of the Class R Certificates issued
hereunder or any Permitted Transferee of such Class R Certificateholder shall be
the initial "tax matters person" for the REMIC within the meaning of Section
6231(a)(7) of the Code. For tax years commencing after any transfer of the Class
R Certificate, the holder of the greatest Percentage Interest in the Class R
Certificate at year end shall be designated as the Tax Matters Person with
respect to that year. If the Tax Matters Person becomes a Disqualified
Organization, the last preceding Holder of such Authorized Denomination of the
Class R Certificate that is not a Disqualified
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Organization shall be Tax Matters Person pursuant to Section 5.3(f). If any
Person is appointed as tax matters person by the Internal Revenue Service
pursuant to the Code, such Person shall be Tax Matters Person.
TERMINATION PRICE: As defined in Section 9.1.
TERMINATOR: As defined in Section 9.1.
TRANSFER: Any direct or indirect transfer, sale, pledge or other
disposition of, or directly or indirectly transferring, selling or pledging, any
Ownership Interest in a Subordinate Certificate or Residual Certificate.
TRANSFEREE: Any Person who is acquiring by Transfer any Ownership
Interest in a Subordinate Certificate or Residual Certificate.
TRUST FUND: Collectively, all of the assets of the REMIC and any
amounts on deposit therein and any proceeds thereof.
TRUSTEE: HSBC Bank USA, a New York banking corporation, or its
successor in interest, or any successor trustee appointed as herein provided.
UNCOLLECTED INTEREST: With respect to any Distribution Date, the sum of
(i) the aggregate Prepayment Interest Shortfalls with respect to the Loans for
such Distribution Date and (ii) the aggregate Curtailment Shortfalls with
respect to the Loans for such Distribution Date.
UNCOMPENSATED INTEREST SHORTFALL: For any Distribution Date, the
excess, if any, of (i) the sum of (a) the related Uncollected Interest for such
Distribution Date, and (b) any shortfall in interest collections for the Loans
in the calendar month immediately preceding such Distribution Date resulting
from a Relief Act Interest Shortfall over (ii) the aggregate Compensating
Interest paid by the Servicers and the Master Servicer with respect to the Loans
for such Distribution Date, which excess shall be allocated to each Class of
Certificates, pro rata, according to the amount of interest accrued thereon in
reduction thereof.
UNDERWRITER: Deutsche Bank Securities Inc.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.9.
U.S. PERSON: A citizen or resident of the United States, a corporation
or partnership (including an entity treated as a corporation or partnership for
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) or an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the
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administration of the trust and one or more such U.S. Persons have the authority
to control all substantial decisions of the trust. To the extent prescribed in
regulations by the Secretary of the Treasury, which have not yet been issued, a
trust which was in existence on August 20, 1996 (other than a trust treated as
owned by the grantor under subpart E of part 1 of subchapter J of chapter 1 of
the Code), and which was treated as a U.S. Person on August 20, 1996 may elect
to continue to be treated as a U.S. Person notwithstanding the previous
sentence.
XXXXX FARGO: Xxxxx Fargo Bank Minnesota, National Association, or any
successor thereto.
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ARTICLE II
CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF TRUST FUND. The Depositor, concurrently with
the execution and delivery hereof, does hereby transfer, assign, set over and
otherwise convey to the Trustee, on behalf of the Trust, without recourse, for
the benefit of the Certificateholders, all the right, title and interest of the
Depositor, including any security interest therein for the benefit of the
Depositor, in and to the Loans identified on the Loan Schedule, the rights of
the Depositor under the Mortgage Loan Purchase Agreement and the Assignment
Agreements (including, without limitation the right to enforce the obligations
of the other parties thereto thereunder), and all other assets included or to be
included in the REMIC. Such assignment includes all interest and principal
received by the Depositor or the applicable Servicer on or with respect to the
Loans (other than payments of principal and interest due on such Loans on or
before the Cut-Off Date). The Depositor herewith delivers to the Trustee
executed copies of the Mortgage Loan Purchase Agreement, the Servicing
Agreements and Assignment Agreements.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with the Custodian pursuant to the Custodial
Agreement the documents with respect to each Loan as described under Section 2
of the Custodial Agreement (the " Loan Documents"). In connection with such
delivery and as further described in the Custodial Agreement, the Custodian will
be required to review such Loan Documents and deliver to the Trustee, the
Depositor, the Master Servicer and the Seller certifications (in the forms
attached to the Custodial Agreement) with respect to such review with exceptions
noted thereon. In addition, the Depositor under the Custodial Agreement will
have to cure certain defects with respect to the Loan Documents for the related
Loans after the delivery thereof by the Depositor to the Custodian as more
particularly set forth therein.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee acknowledges receipt,
subject to the provisions of Section 2.1 hereof and Section 2 of the Custodial
Agreement, of the Loan Documents and all other assets included in the definition
of the "REMIC" under clauses (i), (iii), (iv) and (v) (to the extent of amounts
deposited into the Distribution Account) and declares that it holds (or the
Custodian on its behalf holds) and will hold such documents and the other
documents delivered to it constituting a Loan Document, and that it holds (or
the Custodian on its behalf holds) or will hold all such assets and such other
assets included in the definition of the "REMIC" in trust for the exclusive use
and benefit of all present and future Certificateholders.
SECTION 2.3 REPURCHASE OR SUBSTITUTION OF LOANS.
(a) Upon discovery or receipt of notice of any materially
defective document in, or that a document is missing from, a Mortgage File or of
a breach by the Seller of any representation, warranty or covenant under the
Mortgage Loan Purchase Agreement in respect of any Loan that materially and
adversely affects the value of such Loan or the interest therein of
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the Certificateholders, the Trustee shall promptly notify the Seller of such
defect, missing document or breach and request that the Seller deliver such
missing document, cure such defect or breach within 60 days from the date the
Seller was notified of such missing document, defect or breach, and if the
Seller does not deliver such missing document or cure such defect or breach in
all material respects during such period, the Trustee shall enforce the
obligations of the Seller under the Mortgage Loan Purchase Agreement to
repurchase such Loan from the REMIC at the Purchase Price within 90 days after
the date on which the Seller was notified of such missing document, defect or
breach, if and to the extent that the Seller is obligated to do so under the
Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Loan
shall be deposited in the Distribution Account and the Trustee, upon receipt of
written certification from the Securities Administrator of such deposit and
receipt by the Custodian of a properly completed request for release for such
Loan in the form of Exhibit 3 to the Custodial Agreement, shall release or cause
the Custodian to release to the Seller the related Mortgage File and the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as the Seller shall furnish
to it and as shall be necessary to vest in the Seller any Loan released pursuant
hereto, and the Trustee shall not have any further responsibility with regard to
such Mortgage File. In lieu of repurchasing any such Loan as provided above, if
so provided in the Mortgage Loan Purchase Agreement, the Seller may cause such
Loan to be removed from the REMIC (in which case it shall become a Deleted Loan)
and substitute one or more Substitute Loans in the manner and subject to the
limitations set forth in Section 2.3(b). It is understood and agreed that the
obligation of the Seller to cure or to repurchase (or to substitute for) any
Loan as to which a document is missing, a material defect in a constituent
document exists or as to which such a breach has occurred and is continuing
shall constitute the sole remedy respecting such omission, defect or breach
available to the Trustee and the Certificateholders.
(b) Any substitution of Substitute Loans for Deleted Loans made
pursuant to Section 2.3(a) must be effected prior to the date which is two years
after the Startup Day for the REMIC.
As to any Deleted Loan for which the Seller, substitutes a
Substitute Loan or Loans, such substitution shall be effected by the Seller
delivering to the Trustee or the Custodian on behalf of the Trustee, for such
Substitute Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the
Trustee, and such other documents and agreements, with all necessary
endorsements thereon, as are required by Section 2 of the Custodial Agreement,
as applicable, together with an Officers' Certificate providing that each such
Substitute Loan satisfies the definition thereof and specifying the Substitution
Shortfall Amount (as described below), if any, in connection with such
substitution. The Custodian on behalf of the Trustee shall acknowledge receipt
of such Substitute Loan or Loans and, within ten Business Days thereafter,
review such documents and deliver to the Depositor, the Trustee and the Master
Servicer, with respect to such Substitute Loan or Loans, an initial
certification pursuant to the Custodial Agreement, with any applicable
exceptions noted thereon. Within one year of the date of substitution, the
Custodian on behalf of the Trustee shall deliver to the Depositor, the Trustee
and the Master Servicer a final certification pursuant to the Custodial
Agreement with respect to such Substitute Loan or Loans,
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with any applicable exceptions noted thereon. Monthly Payments due with respect
to Substitute Loans in the month of substitution are not part of the REMIC and
shall be retained by the Seller. For the month of substitution, distributions to
Certificateholders shall reflect the Monthly Payment due on such Deleted Loan on
or before the Due Date in the month of substitution, and the Seller shall
thereafter be entitled to retain all amounts subsequently received in respect of
such Deleted Loan. The Depositor shall give or cause to be given written notice
to the Certificateholders that such substitution has taken place, shall amend
the Loan Schedule to reflect the removal of such Deleted Loan from the terms of
this Agreement and the substitution of the Substitute Loan or Loans and shall
deliver a copy of such amended Loan Schedule to the Trustee and the Master
Servicer. Upon such substitution, such Substitute Loan or Loans shall constitute
part of the Trust Fund and shall be subject in all respects to the terms of this
Agreement and the Mortgage Loan Purchase Agreement including all applicable
representations and warranties thereof included herein or in the Mortgage Loan
Purchase Agreement.
For any month in which the Seller substitutes one or more
Substitute Loans for one or more Deleted Loans, the Master Servicer shall
determine the amount (the "Substitution Shortfall Amount"), if any, by which the
aggregate Purchase Price of all such Deleted Loans exceeds the aggregate of, as
to each such Substitute Loan, the Scheduled Principal Balance thereof as of the
Due Date in the month of substitution, together with one month's interest on
such Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all
outstanding Advances and Servicing Advances (including Nonrecoverable Advances)
related thereto. On the date of such substitution, the Seller shall deliver or
cause to be delivered to the Securities Administrator for deposit in the
Distribution Account an amount equal to the Substitution Shortfall Amount, if
any, and the Trustee or the Custodian on behalf of the Trustee, upon receipt of
the related Substitute Loan or Loans and certification by the Securities
Administrator of such deposit and receipt by the Custodian of a properly
completed request for release for such Loan in the form of Exhibit 3 to the
Custodial Agreement, shall release to the Seller the related Mortgage File or
Files and the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as the
Seller shall deliver to it and as shall be necessary to vest therein any Deleted
Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and
deliver to the Trustee an Opinion of Counsel to the effect that such
substitution will not cause (a) any federal tax to be imposed on the REMIC,
including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code, or (b) the REMIC to fail
to qualify as a REMIC at any time that any Certificate is outstanding.
(c) Upon discovery by the Depositor, the Seller, the Master
Servicer or the Trustee that any Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering such
fact shall within two Business Days give written notice thereof to the other
parties. In connection therewith, the Seller shall repurchase or substitute one
or more Substitute Loans for the affected Loan within 90 days of the earlier of
discovery or receipt of such notice with respect to such affected Loan. Such
repurchase or
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substitution shall be made by (i) the Seller, if the affected Loan's status as a
non-qualified mortgage is or results from a breach of any representation,
warranty or covenant made by the Seller under the Mortgage Loan Purchase
Agreement or (ii) the Depositor, if the affected Loan's status as a
non-qualified mortgage does not result from a breach of representation or
warranty. Any such repurchase or substitution shall be made in the same manner
as set forth in Section 2.3(a). The Trustee shall reconvey to the Seller or the
Depositor the Loan to be released pursuant hereto in the same manner, and on the
same terms and conditions, as it would a Loan repurchased for breach of a
representation or warranty.
(d) Within 90 days of the earlier of discovery by the Master
Servicer or receipt of notice by the Master Servicer of the breach of any
representation, warranty or covenant of the Master Servicer set forth in Section
2.5 which materially and adversely affects the interests of the
Certificateholders in any Loan, the Master Servicer shall cure such breach in
all material respects.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF CERTIFICATES; DESIGNATION OF
CERTIFICATES AS REMIC REGULAR AND RESIDUAL INTERESTS.
(a) The Trustee acknowledges the transfer to the extent
provided herein and assignment to it of the Trust Fund and, concurrently with
such transfer and assignment, has caused the Securities Administrator to execute
and authenticate and has delivered to or upon the order of the Depositor, in
exchange for the Trust Fund, Certificates evidencing the entire ownership of the
Trust Fund.
(b) This Agreement shall be construed so as to carry out the
intention of the parties that the REMIC be treated as a REMIC at all times prior
to the date on which the Trust Fund is terminated. The "regular interests"
(within the meaning of Section 860G(a)(1) of the Code) in the REMIC shall
consist of the Class A Certificates and the Subordinate Certificates. The
"residual interest" (within the meaning of Section 860G(a)(2) of the Code) in
the REMIC shall consist of the Class R Certificate.
SECTION 2.5 REPRESENTATIONS AND WARRANTIES OF THE MASTER SERVICER. The
Master Servicer hereby represents, warrants and covenants to the Trustee, for
the benefit of each of the Trustee, the Certificateholders and the Depositor
that as of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a national banking association duly
formed, validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to
transact any and all business contemplated by this Agreement to be
conducted by the Master Servicer;
(ii) The Master Servicer has the full power and authority to
conduct its business as presently conducted by it and to execute,
deliver and perform, and to enter into and consummate, all transactions
contemplated by this Agreement. The Master Servicer has duly authorized
the execution, delivery and performance of this Agreement,
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has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Depositor and
the Trustee, constitutes a legal, valid and binding obligation of the
Master Servicer, enforceable against it in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity;
(iii) The execution and delivery of this Agreement by the
Master Servicer, the consummation by the Master Servicer of any other
of the transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business
of the Master Servicer and will not (A) result in a breach of any term
or provision of charter and by-laws of the Master Servicer or (B)
conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may
be bound, or any statute, order or regulation applicable to the Master
Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Master Servicer; and the
Master Servicer is not a party to, bound by, or in breach or violation
of any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or, to the Master
Servicer's knowledge, would in the future materially and adversely
affect, (x) the ability of the Master Servicer to perform its
obligations under this Agreement or (y) the business, operations,
financial condition, properties or assets of the Master Servicer taken
as a whole;
(iv) The Master Servicer does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every
covenant made by it and contained in this Agreement;
(v) No litigation is pending against the Master Servicer that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master Servicer
to perform any of its other obligations hereunder in accordance with
the terms hereof,
(vi) There are no actions or proceedings against, or
investigations known to it of, the Master Servicer before any court,
administrative or other tribunal (A) that might prohibit its entering
into this Agreement, (B) seeking to prevent the consummation of the
transactions contemplated by this Agreement or (C) that might prohibit
or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of,
this Agreement; and
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of, or compliance by
the Master Servicer with, this Agreement or the
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consummation by it of the transactions contemplated by this Agreement,
except for such consents, approvals, authorizations or orders, if any,
that have been obtained prior to the Closing Date.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.5 shall inure to the
benefit of the Trustee, the Depositor and the Certificateholders.
SECTION 2.6 ESTABLISHMENT OF THE TRUST.
The Depositor does hereby establish, pursuant to the further provisions
of this Agreement and the laws of the State of New York, an express trust to be
known, for convenience, as "Deutsche Alt-A Securities, Inc., Alternative Loan
Trust, Series 2003-1" and does hereby appoint HSBC Bank USA, as Trustee in
accordance with the provisions of this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE LOANS; ACCOUNTS
Section 3.1 MASTER SERVICER. The Master Servicer shall
supervise, monitor and oversee the obligation of the Servicers to service and
administer their respective Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related Loan,
reconcile the results of such monitoring with such information provided in the
previous sentence on a monthly basis and coordinate corrective adjustments to
the Servicers' and Master Servicer's records, and based on such reconciled and
corrected information, prepare the statements specified in Section 4.4 and any
other information and statements required to be provided by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its Loan
monitoring with the actual remittances of the Servicers to the Distribution
Account pursuant to the applicable Servicing Agreements.
The Trustee shall furnish the Servicers and the Master Servicer with
any limited powers of attorney and other documents in form as provided to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service or master service and administer the related Loans and REO Property. The
Trustee shall have no responsibility for any action of the Master Servicer or
any Servicer pursuant to any such limited power of attorney and shall be
indemnified by the Master Servicer or such Servicer for any cost, liability or
expense arising from the misuse thereof by the Master Servicer or such Servicer.
The Trustee, the Custodian and the Securities Administrator shall
provide access to the records and documentation in possession of the Trustee,
the Custodian or the Securities Administrator regarding the related Loans and
REO Property and the servicing thereof to the Certificateholders, the FDIC, and
the supervisory agents and examiners of the FDIC, such access being afforded
only upon reasonable prior written request and during normal business hours at
the office of the Trustee, the Custodian or the Securities Administrator;
provided, however, that, unless otherwise required by law, none of the Trustee,
the Custodian or the Securities Administrator shall be required to provide
access to such records and documentation if the provision thereof would violate
the legal right to privacy of any Mortgagor. The Trustee, the Custodian and the
Securities Administrator shall allow representatives of the above entities to
photocopy any of the records and documentation and shall provide equipment for
that purpose at a charge that covers the Trustee's, the Custodian's or the
Securities Administrator's actual costs.
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The Trustee shall execute and deliver to the related Servicer or the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable and, in each case, provided to the
Trustee by such Servicer or Master Servicer to (i) the foreclosure or trustee's
sale with respect to a Mortgaged Property; (ii) any legal action brought to
obtain judgment against any Mortgagor on the Mortgage Note or any other Loan
Document; (iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note or any other
Loan Document or otherwise available at law or equity.
Section 3.2 REMIC-RELATED COVENANTS. For as long as the REMIC
shall exist, the Trustee and the Securities Administrator shall treat the REMIC
as a REMIC, and the Trustee and the Securities Administrator shall comply with
any directions of the Seller, the related Servicer or the Master Servicer to
assure such continuing treatment. In particular, the Trustee shall not (a) sell
or permit the sale of all or any portion of the Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Loans pursuant to this Agreement or the Trustee has received an Opinion of
Counsel stating that such sale will not result in an Adverse REMIC Event as
defined in Section 10.1(f) hereof prepared at the expense of the Trust Fund; and
(b) other than with respect to a substitution pursuant to the Mortgage Loan
Purchase Agreements the Assignment Agreements or Section 2.3 of this Agreement,
as applicable, accept any contribution to the REMIC after the Startup Day
without receipt of an Opinion of Counsel stating that such contribution will not
result in an Adverse REMIC Event as defined in Section 10.1(f) hereof.
Section 3.3 MONITORING OF SERVICERS. (a) The Master Servicer
shall be responsible for monitoring the compliance by each Servicer with its
duties under the related Servicing Agreement. In the review of each Servicer's
activities, the Master Servicer may rely upon an officer's certificate of any
Servicer with regard to such Servicer's compliance with the terms of its
Servicing Agreement. In the event that the Master Servicer, in its judgment,
determines that a Servicer should be terminated in accordance with its Servicing
Agreement, or that a notice should be sent pursuant to such Servicing Agreement
with respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Seller and
the Trustee thereof and the Master Servicer shall issue such notice or take such
other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as servicer of the related Loans or to cause the
Trustee to enter in to a new Servicing Agreement with a successor Servicer
selected by the Master Servicer; provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing Agreements
and the pursuit of other appropriate
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remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer, in its good faith business judgment, would require
were it the owner of the related Loans. The Master Servicer shall pay the costs
of such enforcement at its own expense, provided that the Master Servicer shall
not be required to prosecute or defend any legal action except to the extent
that the Master Servicer shall have received reasonable indemnity for its costs
and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor servicer to service the
Loans in accordance with the related Servicing Agreement) are not fully and
timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it shall not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.4 FIDELITY BOND. The Master Servicer, at its
expense, shall maintain in effect a blanket fidelity bond and an errors and
omissions insurance policy, affording coverage with respect to all directors,
officers, employees and other Persons acting on such Master Servicer's behalf,
and covering errors and omissions in the performance of the Master Servicer's
obligations hereunder. The errors and omissions insurance policy and the
fidelity bond shall be in such form and amount generally acceptable for entities
serving as master servicers or trustees.
Section 3.5 POWER TO ACT; PROCEDURES. The Master Servicer
shall master service the Loans and shall have full power and authority, subject
to the REMIC Provisions and the provisions of Article X hereof, to do any and
all things that it may deem necessary or desirable in connection with the master
servicing and administration of the Loans, including but not limited to the
power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Loan, in each case, in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable; provided, however,
that the
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Master Servicer shall not (and, consistent with its responsibilities under
Section 3.3, shall not permit any Servicer to) knowingly or intentionally take
any action, or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
would cause the REMIC to fail to qualify as a REMIC or result in the imposition
of a tax upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) unless the
Master Servicer has received an Opinion of Counsel (but not at the expense of
the Master Servicer) to the effect that the contemplated action will not cause
the REMIC to fail to qualify as a REMIC or result in the imposition of a tax
upon the REMIC. The Trustee shall furnish the Master Servicer, upon written
request from a Servicing Officer, with any powers of attorney empowering the
Master Servicer or any Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Loans or the Mortgaged
Property, in accordance with the applicable Servicing Agreement and this
Agreement, and the Trustee shall execute and deliver such other documents, as
the Master Servicer or applicable Servicer may request, to enable the Master
Servicer to master service and administer the Loans and carry out its duties
hereunder, in each case in accordance with Accepted Master Servicing Practices
(and the Trustee shall have no liability for the misuse of any such powers of
attorney by the Master Servicer or any Servicer and shall be indemnified by the
Master Servicer or such Servicer for any costs, liabilities or expenses incurred
by the Trustee in connection with such misuse). If the Master Servicer or the
Trustee has been advised that it is likely that the laws of the state in which
action is to be taken prohibit such action if taken in the name of the Trustee
or that the Trustee would be adversely affected under the "doing business" or
tax laws of such state if such action is taken in its name, the Master Servicer
shall join with the Trustee in the appointment of a co-trustee pursuant to
Section 8.10 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action authorized pursuant to this Agreement to be
taken by it in the name of the Trustee, be deemed to be the agent of the
Trustee.
Section 3.6 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS. To the
extent provided in the applicable Servicing Agreement and to the extent Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Loan is assumed, the original
Mortgagor may be released from liability in accordance with the applicable
Servicing Agreement.
Section 3.7 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Loan, or the
receipt by any Servicer of a notification that payment in full has been escrowed
in a manner customary for such
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purposes for payment to Certificateholders on the next Distribution Date, the
applicable Servicer will (or if the Servicer does not, the Master Servicer may),
if required under the applicable Servicing Agreement, promptly furnish to the
Custodian, on behalf of the Trustee, two copies of a request for release
substantially in the form attached to the Custodial Agreement, and signed by a
Servicing Officer or in a mutually agreeable electronic format which will, in
lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the
Protected Account maintained by the applicable Servicer pursuant to its
Servicing Agreement have been or will be so deposited) and shall request that
the Custodian, on behalf of the Trustee, deliver to the applicable Servicer the
related Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall promptly release the related Mortgage
File to the applicable Servicer and the Trustee and Custodian shall have no
further responsibility with regard to such Mortgage File. Upon any such payment
in full, each Servicer is authorized to give, as agent for the Trustee, as the
mortgagee under the Mortgage that secured the Loan, an instrument of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction or
assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Distribution Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Loan and in accordance with the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by a Servicer or the Master Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution of
any such proceedings. The Custodian, on behalf of the Trustee, shall, upon the
request of a Servicer or the Master Servicer, and delivery to the Custodian, on
behalf of the Trustee, of two copies of a request for release signed by a
Servicing Officer substantially in the form attached to the Custodial Agreement
(or in a mutually agreeable electronic format which will, in lieu of a signature
on its face, originate from a Servicing Officer), release the related Mortgage
File held in its possession or control to the Servicer or the Master Servicer,
as applicable. Such request for release shall obligate the Servicer or the
Master Servicer to return the Mortgage File to the Custodian on behalf of the
Trustee, when the need therefor by the Servicer or the Master Servicer no longer
exists unless the Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Custodian, on behalf of the Trustee, to
the Servicer or the Master Servicer.
Section 3.8 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the terms
hereof, or in the case of the Servicers, the applicable Servicing
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Agreement, to be delivered to the Trustee or Custodian. Any funds received by
the Master Servicer or by a Servicer in respect of any Loan or which otherwise
are collected by the Master Servicer or by a Servicer as Liquidation Proceeds or
Insurance Proceeds in respect of any Loan shall be held for the benefit of the
Trustee and the Certificateholders subject to the Master Servicer's right to
retain or withdraw from the Distribution Account the Master Servicing
Compensation and other amounts provided in this Agreement, and to the right of
each Servicer to retain its Servicing Fee and other amounts as provided in the
applicable Servicing Agreement. The Master Servicer shall, and (to the extent
provided in the applicable Servicing Agreement) shall cause each Servicer to,
provide access to information and documentation regarding the Loans to the
Trustee, its agents and accountants at any time upon reasonable request and
during normal business hours, and to Certificateholders that are savings and
loan associations, banks or insurance companies, the OTS, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the OTS or other regulatory authority,
such access to be afforded without charge but only upon reasonable request in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee; provided, however, that the Master Servicer
and each Servicer shall be entitled to setoff against, and deduct from, any such
funds any amounts that are properly due and payable to the Master Servicer or
such Servicer under this Agreement or the applicable Servicing Agreement.
Section 3.9 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE
POLICIES.
(a) For each Loan, the Master Servicer shall enforce any obligation of
the Servicers under the related Servicing Agreements to maintain or cause to be
maintained standard fire and casualty insurance and, where applicable, flood
insurance, all in accordance with the provisions of the related Servicing
Agreements. It is understood and agreed that such insurance shall be with
insurers meeting the eligibility requirements set forth in the applicable
Servicing Agreement and that no earthquake or other additional insurance is to
be required of any Mortgagor or to be maintained on property acquired in respect
of a defaulted loan, other than pursuant to such applicable laws and regulations
as shall at any time be in force and as shall require such additional insurance.
(b) Pursuant to Section 3.22, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Distribution Account,
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subject to withdrawal pursuant to Section 3.24. Any cost incurred by the Master
Servicer or any Servicer in maintaining any such insurance if the Mortgagor
defaults in its obligation to do so shall be added to the amount owing under the
Loan where the terms of the Loan so permit; provided, however, that the addition
of any such cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders and shall be recoverable by the
Master Servicer or such Servicer pursuant to Sections 3.24.
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under any insurance policies and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured's claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Distribution Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Loan to the insurer under any applicable
insurance policy need not be so deposited (or remitted).
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE
POLICIES.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any primary mortgage
insurance policy of any loss which, but for the actions of such Master Servicer
or Servicer, would have been covered thereunder. The Master Servicer shall use
its best reasonable efforts to cause each Servicer (to the extent required under
the related Servicing Agreement) to keep in force and effect (to the extent that
the Loan requires the Mortgagor to maintain such insurance), primary mortgage
insurance applicable to each Loan in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable. The Master
Servicer shall not, and shall not permit any Servicer (to the extent required
under the related Servicing Agreement) to, cancel or refuse to renew any primary
mortgage insurance policy that is in effect at the date of the initial issuance
of the Mortgage Note and is required to be kept in force hereunder except in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to cause each Servicer (to the extent
required under the related Servicing Agreement) to present, on behalf of the
Trustee and the Certificateholders, claims to the insurer under any primary
mortgage insurance policies and, in this regard, to take such reasonable action
as shall be necessary to permit recovery under any primary mortgage insurance
policies respecting defaulted Loans. Pursuant to Section 3.22, any amounts
collected by the Master Servicer or any Servicer under any primary mortgage
insurance policies shall be deposited in the Distribution Account, subject to
withdrawal pursuant to Sections 3.24.
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Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE
POLICIES AND DOCUMENTS.
The Trustee or the applicable Custodian, shall retain
possession and custody of the originals (to the extent available) of any primary
mortgage insurance policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect of
the Certificates has been distributed in full and the Master Servicer otherwise
has fulfilled its obligations under this Agreement, the Trustee or the Custodian
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement and the Custodial
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the Trustee or the Custodian, upon the execution or receipt thereof the
originals of any primary mortgage insurance policies, any certificates of
renewal, and such other documents or instruments that constitute Loan Documents
that come into the possession of the Master Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED LOANS. The Master
Servicer shall cause each Servicer (to the extent required under the related
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, all in accordance with the
applicable Servicing Agreement.
Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
(a) In addition to the Master Servicer's right to receive its Master
Servicing Fee, all income and gain realized from any investment of funds in the
Distribution Account shall be for the benefit of the Master Servicer as
compensation. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise shall be retained by
the applicable Servicer and shall not be deposited in the Protected Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
(b) The amount of the aggregate compensation payable as set forth in
Section 3.14(a) (the "Master Servicing Compensation") to the Master Servicer in
respect of any Distribution Date shall be reduced in accordance with Section
3.20.
Section 3.15 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO Property
in respect of any related Loan, the deed or certificate of sale shall be issued
to the Trustee, or to its nominee, on behalf of the related Certificateholders.
The Master Servicer shall, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related
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Servicing Agreement, as applicable. Further, the Master Servicer shall, to the
extent provided in the related Servicing Agreement, cause the applicable
Servicer to sell any REO Property prior to three years after the end of the
calendar year of its acquisition by the REMIC unless (i) the Trustee shall have
been supplied with an Opinion of Counsel to the effect that the holding by the
Trust Fund of such REO Property subsequent to such three-year period will not
result in the imposition of taxes on "prohibited transactions" of the REMIC
hereunder as defined in section 860F of the Code or cause the REMIC hereunder to
fail to qualify as a REMIC at any time that any Certificates are outstanding, in
which case the Trust Fund may continue to hold such Mortgaged Property (subject
to any conditions contained in such Opinion of Counsel) or (ii) the applicable
Servicer shall have applied for, prior to the expiration of such three-year
period, an extension of such three-year period in the manner contemplated by
Section 856(e)(3) of the Code, in which case the three-year period shall be
extended by the applicable extension period. The Master Servicer shall cause the
applicable Servicer (to the extent provided in the related Servicing Agreement)
to protect and conserve, such REO Property in the manner and to the extent
required by the applicable Servicing Agreement, in accordance with the REMIC
Provisions and in a manner that does not result in a tax on "net income from
foreclosure property" or cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances and other unreimbursed advances as well as any
unpaid Servicing Fees from Liquidation Proceeds received in connection with the
final disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Servicing Fees may be reimbursed or paid, as the
case may be, prior to final disposition, out of any net rental income or other
net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the
Distribution Account on the next succeeding Remittance Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies on or before March 15 of each year, commencing on March 15, 2004, an
Officer's Certificate signed by a Servicing Officer, certifying that with
respect to the period ending December 31 of the prior year: (i) such Servicing
Officer has reviewed the activities of such Master Servicer during the
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preceding calendar year or portion thereof and its performance under this
Agreement, (ii) to the best of such Servicing Officer's knowledge, based on such
review, such Master Servicer has performed and fulfilled its duties,
responsibilities and obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such duties, responsibilities or obligations, specifying each such default known
to such Servicing Officer and the nature and status thereof, (iii) nothing has
come to the attention of such Servicing Officer to lead such Servicing Officer
to believe that any Servicer has failed to perform any of its duties,
responsibilities and obligations under its Servicing Agreement in all material
respects throughout such year, or, if there has been a material default in the
performance or fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at the
Master Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT.
If the Master Servicer has, during the course of any fiscal year, directly
serviced any of the Loans, then the Master Servicer at its expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Rating Agencies and the Seller on or
before March 15 of each year, commencing on March 15, 2004 to the effect that,
with respect to the most recently ended fiscal year, such firm has examined
certain records and documents relating to the Master Servicer's performance of
its servicing obligations under this Agreement and pooling and servicing and
trust agreements in material respects similar to this Agreement and to each
other and that, on the basis of such examination conducted substantially in
compliance with the audit program for mortgages serviced for Xxxxxxx Mac or the
Uniform Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that the Master Servicer's activities have been conducted in compliance
with this Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac requires it
to report. Copies of such statements shall be provided to any Certificateholder
upon request by the Master Servicer, or by the Trustee at the expense of the
Master Servicer if the Master Servicer shall fail to provide such copies (unless
(i) the Master Servicer shall have failed to provide the Trustee with such
statement or (ii) the Trustee shall be unaware of the Master Servicer's failure
to provide such statement). If such report discloses exceptions that are
material, the Master Servicer shall advise the Trustee whether such exceptions
have been or are susceptible of cure, and shall take prompt action to do so.
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Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE
COMMISSION.
(a) Within 15 days after each Distribution Date, the Master
Servicer shall, in accordance with industry standards, file with the Commission
via the Electronic Data Gathering and Retrieval System ("XXXXX"), a Form 8-K
with a copy of the statement to be furnished by the Securities Administrator to
the Certificateholders for such Distribution Date as an exhibit thereto. Prior
to January 30, 2004, the Master Servicer shall, in accordance with industry
standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if
applicable. Prior to March 30, 2004 and annually thereafter (if required), the
Master Servicer shall file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. Such Form 10-K shall include, to the
extent available, as exhibits (i) each applicable Servicer's annual statement of
compliance described under the related Servicing Agreement, (ii) each applicable
Servicer's accountant's report described under the related Servicing Agreement,
(iii) the Master Servicer's accountant's report described in Section 3.17, if
applicable, in each case to the extent timely delivered, if applicable, to the
Master Servicer, and (iv) a written certification signed by an officer of the
Master Servicer that complies with the Xxxxxxxx-Xxxxx Act of 2002 as in effect
on the date of this Agreement and the February 3, 2003, Statement by the Staff
of the Division of Corporation Finance of the Commission Regarding Compliance by
Asset-Backed Issuers with Exchange Act Rules 13a-14 and 15d-14 as in effect as
of the date of this Agreement. The Depositor hereby grants to the Master
Servicer a limited power of attorney to execute and file each Form 8-K and Form
10-K on behalf of the Depositor. Such power of attorney shall continue until
either the earlier of (i) receipt by the Master Servicer from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust Fund. The Depositor and the Trustee each agree to promptly furnish to the
Master Servicer, from time to time upon request, such further information,
reports and financial statements within its control related to this Agreement
and the Loans as the Master Servicer reasonably deems appropriate to prepare and
file all necessary reports with the Commission. The Master Servicer shall
cooperate with the Depositor in connection with any additional filings with
respect to the Trust Fund as the Depositor deems necessary under the Exchange
Act. Copies of all reports filed by the Master Servicer under the Exchange Act
shall be sent to the Depositor.
(b) The Master Servicer shall indemnify and hold harmless the
Depositor, the Trustee 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 Master Servicer's
obligations under this Section 3.18 or the Master Servicer's negligence, bad
faith or willful misconduct in connection therewith. Fees and expenses incurred
by the Master Servicer in connection with this Section 3.18 shall not be
reimbursable from the Trust Fund.
Section 3.19 UCC. The Depositor agrees to file continuation
statements for any Uniform Commercial Code financing statements which the Seller
has informed the Depositor were filed on the Closing Date in connection with the
Trust. The Depositor shall file any financing statements or amendments thereto
required by any change in the Uniform Commercial Code.
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Section 3.20 OBLIGATION OF THE MASTER SERVICER IN RESPECT OF
COMPENSATING INTEREST. The Master Servicer shall deposit in the Distribution
Account not later than each Distribution Account Deposit Date an amount equal to
the lesser of (i) the aggregate amounts required to be paid by the Servicers
under the Servicing Agreements with respect to Compensating Interest on the
related Loans for the related Distribution Date, and not so paid by the related
Servicers and (ii) the Master Servicing Compensation for such Distribution Date
without reimbursement therefor.
Section 3.21 RESERVED.
Section 3.22 PROTECTED ACCOUNTS.
(a) The Master Servicer shall enforce the obligation of each Servicer
to establish and maintain a Protected Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Loan by
Loan basis, into which accounts shall be deposited within 48 hours (or as of
such other time specified in the related Servicing Agreement) of receipt all
collections of principal and interest on any Loan and with respect to any REO
Property received by a Servicer, including Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, and advances made from the Servicer's own funds
(less servicing compensation as permitted by the applicable Servicing Agreement
in the case of any Servicer) and all other amounts to be deposited in the
Protected Account. Each Servicer is hereby authorized to make withdrawals from
and deposits to the related Protected Account for purposes required or permitted
by the related Servicing Agreement. To the extent provided in the related
Servicing Agreement, the Protected Account shall be held in a depository
institution and segregated on the books of such institution in the name of the
Trustee for the benefit of Certificateholders.
(b) To the extent provided in the related Servicing Agreement, amounts
on deposit in a Protected Account may be invested in Eligible Investments in the
name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled with any other funds, such
Eligible Investments to mature, or to be subject to redemption or withdrawal, no
later than the date on which such funds are required to be withdrawn for deposit
in the Distribution Account, and shall be held until required for such deposit.
The income earned from Eligible Investments made pursuant to this Section 3.22
shall be paid to the related Servicer under the applicable Servicing Agreement,
and the risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be the
risk of the related Servicer. The related Servicer (to the extent provided in
the Servicing Agreement) shall deposit the amount of any such loss in the
Protected Account within two Business Days of receipt of notification of such
loss but not later than the second Business Day prior to the Distribution Date
on which the moneys so invested are required to be distributed to the
Certificateholders.
(c) To the extent provided in the related Servicing Agreement and
subject to this Article III, on or before each Servicer Remittance Date, the
related Servicer shall withdraw or
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shall cause to be withdrawn from the Protected Accounts and shall immediately
deposit or cause to be deposited in the Distribution Account amounts
representing the following collections and payments (other than with respect to
principal of or interest on the Loans due on or before the Cut-Off Date):
(i) Monthly Payments on the Loans received or any related portion
thereof advanced by the Servicers pursuant to the Servicing Agreements which
were due on or before the related Due Date, net of the amount thereof comprising
the Servicing Fees;
(ii) Principal Prepayments, Liquidation Proceeds received by the
Servicers with respect to such Loans in the related Prepayment Period and
Compensating Interest; and
(iii) Any amount to be used as an Advance.
(d) Withdrawals may be made from an Account only to make remittances as
provided in Section 3.22(c), 3.23 and 3.24 or as otherwise provided in the
Servicing Agreements; to reimburse the Master Servicer or a Servicer for
Advances which have been recovered by subsequent collection from the related
Mortgagor; to remove amounts deposited in error; to remove fees, charges or
other such amounts deposited on a temporary basis; or to clear and terminate the
account at the termination of this Agreement in accordance with Section 9.1. As
provided in Sections 3.22(c) and 3.23(b) or as otherwise provided in the
Servicing Agreements certain amounts otherwise due to the Servicers may be
retained by them and need not be deposited in the Distribution Account.
Section 3.23 DISTRIBUTION ACCOUNT.
(a) The Securities Administrator shall establish and maintain, for the
benefit of the Certificateholders, the Distribution Account as a segregated
trust account or accounts. The Master Servicer shall deposit in the Distribution
Account as identified by the Master Servicer and as received by the Master
Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any Advance and any amounts in respect of Prepayment Interest
Shortfalls;
(iii) Any Insurance Proceeds or Liquidation Proceeds received by or on
behalf of the Master Servicer;
(iv) The Purchase Price with respect to any Loans purchased by the
Seller pursuant to Section 2.3 and all proceeds of any Loans or property
acquired with respect thereto purchased by the Master Servicer pursuant to
Section 9.1;
(v) Any amounts required to be deposited by the Master Servicer or any
Servicer with respect to losses on investments of deposits in an Account; and
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(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Distribution Account pursuant to this
Agreement.
(b) All amounts deposited to the Distribution Account shall be held by
the Securities Administrator in trust for the benefit of the Certificateholders
in accordance with the terms and provisions of this Agreement. The requirements
for crediting the Distribution Account shall be exclusive, it being understood
and agreed that, without limiting the generality of the foregoing, payments in
the nature of late payment charges or assumption, tax service, statement account
or payoff, substitution, satisfaction, release and other like fees and charges,
need not be credited by the Master Servicer or the related Servicer to the
Distribution Account. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to be
credited thereto, the Securities Administrator, upon receipt of a written
request therefor signed by a Servicing Officer of the Master Servicer, shall
promptly transfer such amount to the Master Servicer, any provision herein to
the contrary notwithstanding.
(c) The Distribution Account shall constitute a trust account of the
Trust Fund segregated on the books of the Securities Administrator and held by
the Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Securities Administrator (whether made directly,
or indirectly through a liquidator or receiver of the Securities Administrator).
The amount at any time credited to the Distribution Account shall be invested in
the name of the Master Servicer, in such Eligible Investments selected by the
Master Servicer or deposited in demand deposits with such depository
institutions as selected by the Master Servicer, provided that time deposits of
such depository institutions would be an Eligible Investment. All Eligible
Investments shall mature or be subject to redemption or withdrawal on or before,
and shall be held until, the next succeeding Distribution Date if the obligor
for such Eligible Investment is the Securities Administrator or, if such obligor
is any other Person, the Business Day preceding such Distribution Date. All
investment earnings on amounts on deposit in the Distribution Account from time
to time shall be for the account of the Master Servicer. The Master Servicer
shall be permitted to receive distribution of any and all investment earnings
from the Distribution Account on each Distribution Date. If there is any loss on
an Eligible Investment or demand deposit, the Master Servicer shall deposit such
amount in the Distribution Account. With respect to the Distribution Account and
the funds deposited therein, the Securities Administrator shall take such action
as may be necessary to ensure that the Certificateholders shall be entitled to
the priorities afforded to such a trust account (in addition to a claim against
the estate of the Securities Administrator) as provided by 12 U.S.C. ss. 92a(e),
and applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
Section 3.24 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT.
(a) The Securities Administrator shall, from time to time on demand of
the Master Servicer make or cause to be made such withdrawals or transfers from
the Distribution Account
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as the Master Servicer has designated for such transfer or withdrawal pursuant
to the Servicing Agreements for the following purposes, not in any order of
priority:
(i) to reimburse the Master Servicer or any Servicer for any Advance of
its own funds, the right of the Master Servicer or a Servicer to reimbursement
pursuant to this subclause (i) being limited to amounts received on a particular
Loan (including, for this purpose, the Purchase Price therefor, Insurance
Proceeds and Liquidation Proceeds) which represent late payments or recoveries
of the principal of or interest on such Loan respecting which such Advance was
made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Loan for amounts
expended by the Master Servicer or such Servicer in good faith in connection
with the restoration of the related Mortgaged Property which was damaged by an
Uninsured Cause or in connection with the liquidation of such Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Loan for insured expenses incurred with
respect to such Loan and to reimburse the Master Servicer or such Servicer from
Liquidation Proceeds from a particular Loan for Liquidation Expenses incurred
with respect to such Loan; provided that the Master Servicer or such Servicer
shall not be entitled to reimbursement for Liquidation Expenses with respect to
a Loan to the extent that (i) any amounts with respect to such Loan were paid as
Excess Liquidation Proceeds pursuant to clause (viii) of this Subsection (a) to
the Master Servicer or such Servicer; and (ii) such Liquidation Expenses were
not included in the computation of such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Loan, the amount which it or such Servicer would have been
entitled to receive under subclause (viii) of this Subsection (a) as servicing
compensation on account of each defaulted scheduled payment on such Loan if paid
in a timely manner by the related Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Purchase Price
for any Loan, the amount which it or such Servicer would have been entitled to
receive under subclause (x) of this Subsection (a) as servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for any
Nonrecoverable Advance, after a Realized Loss has been allocated with respect to
the related Loan if the Advance or Servicing Advance has not been reimbursed
pursuant to clause (i);
(vii) to pay the Servicing Fee to the Servicers and the Master
Servicing Fee to the Master Servicer for such Distribution Date and the amount
of any income or gain realized from investments of funds on deposit in the
Distribution Account pursuant to Section 3.14 hereof and to reimburse the Master
Servicer for expenses, costs and liabilities incurred by and reimbursable to it
pursuant to Sections 3.3, 6.3, 8.5 and 10.1;
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(viii) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by the
related Servicer;
(ix) to reimburse or pay any Servicer any such amounts as are due
thereto under the applicable Servicing Agreement and have not been retained by
or paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(x) to reimburse the Trustee, the Custodian and the Securities
Administrator for expenses, costs and liabilities, if any, incurred by or
reimbursable to such parties pursuant to this Agreement;
(xi) to remove amounts deposited in error; and
(xii) to clear and terminate the Distribution Account pursuant to
Section 9.1.
(b) The Master Servicer shall keep and maintain separate accounting, on
a Loan by Loan basis, for the purpose of accounting for any reimbursement from
the Distribution Account pursuant to subclauses (i) through (v), inclusive, or
with respect to any such amounts which would have been covered by such
subclauses had the amounts not been retained by the Master Servicer without
being deposited in the Distribution Account under Section 3.23(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Distribution Amount to the Holders of the Certificates
in accordance with Section 4.1.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS
SECTION 4.1 DISTRIBUTIONS TO CERTIFICATEHOLDERS.
(a) On each Distribution Date, the Securities Administrator, to the
extent on deposit therein and based solely upon the Remittance Report for such
Distribution Date, shall withdraw from the Distribution Account the Available
Distribution Amount for such Distribution Date and distribute to each
Certificateholder, by wire transfer in immediately available funds for the
account of the Certificateholder or by any other means of payment acceptable to
each Certificateholder of record on the immediately preceding Record Date (other
than as provided in Section 9.1 respecting the final distribution) as specified
by each such Certificateholder and at the address of such Holder appearing in
the Certificate Register, from the amount so withdrawn and to the extent of such
Available Distribution Amount, such Certificateholder's Percentage Interest of
the following amounts and in following order and priority:
On each Distribution Date prior to the Credit Support Depletion Date, the
Securities Administrator shall distribute the Available Distribution Amount for
such Distribution Date to the Certificates in the following order and priority:
(1) first, to each Class of interest bearing Senior Certificates,
the Interest Distribution Amount for such Distribution Date
and such Class on a pro rata basis;
(2) second, to the Class A-PO Certificates from the Available
Distribution Amount remaining after payments pursuant to
clause (1) above, the Discount Fractional Principal Amount
until the Class Principal Balance of the Class A-PO
Certificates has been reduced to zero;
(3) third, to the Senior Certificates (other than the Class A-PO
Certificates) from the Available Distribution Amount remaining
after payments pursuant to clauses (1) and (2) above, the
Senior Principal Amount, in the following order of priority:
(a) first, to the Class R Certificates until the Class
Principal Balance of the Class R Certificates has
been reduced to zero;
(b) second, to the Class A-1 Certificates from the Senior
Principal Amount remaining, if any, after the
distributions described in clause (3)(a) above, an
amount up to the Lockout Principal Amount until the
Class Principal Balance of the Class A-1 Certificates
has been reduced to zero;
(c) third, to the Class A-2 Certificates from the Senior
Principal Amount remaining, if any, after the
distributions described in clauses (3)(a) and (b)
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above, until the Class Principal Balance of the Class
A-2 Certificates has been reduced to zero;
(d) fourth, to the Class A-3 Certificates from the Senior
Principal Amount remaining, if any, after the
distributions described in clauses (3)(a), (b) and
(c) above, until the Class Principal Balance of the
Class A-3 Certificates has been reduced to zero;
(e) fifth, to the Class A-1 Certificates from the Senior
Principal Amount remaining, if any, after the
distributions described in clauses (3)(a), (b), (c)
and (d) above, until the Class Principal Balance of
the Class A-1 Certificates has been reduced to zero;
(4) fourth, from the Available Distribution Amount remaining after
payments pursuant to clauses (1), (2) and (3) above, the
Discount Fractional Principal Shortfall to the Class A-PO
Certificates, but not more than an amount equal to the
Subordinate Principal Amount for the Loans for such
Distribution Date (without regard to the proviso of such
definition);
(5) fifth, to the Class M, Class B-1, Class B-2, Class B-3, Class
B-4 and Class B-5 Certificates, in that order, from the
Available Distribution Amount remaining after payments
pursuant to clauses (1) through (4) above, their respective
Interest Distribution Amounts for such Distribution Date and
their pro rata share, according to their outstanding Class
Principal Balances, of the Subordinate Principal Amounts;
provided, however, that on any Distribution Date on which the
Subordination Level for any Class of Subordinate Certificates
is less than the Subordination Level as of the Closing Date,
the portion of the Subordinate Principal Prepayment Amount
otherwise payable to the Class or Classes of the Subordinate
Certificates junior to such Class shall be distributed to the
most Senior Class of Subordinate Certificates for which the
Subordination Level is less than such percentage as of the
Closing Date, and to the Class or Classes of Subordinate
Certificates senior thereto, pro rata according to the Class
Principal Balances of such Classes;
(6) sixth, (i) FIRST, to the Senior Certificates (other than the
Class A-PO Certificates), from the Available Distribution
Amount remaining after distributions pursuant to clauses (1)
through (5) above, by Pro Rata Allocation, the amount of any
unreimbursed Realized Losses previously allocated to such
Classes of Certificates and (ii) SECOND, to the Subordinate
Certificates, in the order of their seniority, the amount of
any unreimbursed Realized Losses previously allocated to such
Classes of Certificates; and
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(7) seventh, to the Class R Certificates, the remainder (which is
expected to be zero), if any, of the Available Distribution
Amount remaining after distributions pursuant to clauses (1)
through (6) above.
On each Distribution Date on or after the Credit Support Depletion Date, to the
extent of the Available Distribution Amount on such Distribution Date,
distributions will be made to the Senior Certificates in the following order and
priority:
(1) first, to each Class of interest bearing Senior Certificates,
the Interest Distribution Amount for such Distribution Date
and such Class on a pro rata basis;
(2) second, to the Class A-PO Certificates from the Available
Distribution Amount remaining after payments pursuant to
clause (1) above, the Discount Fractional Principal Amount
until the Class Principal Balance of the Class A-PO
Certificates has been reduced to zero;
(3) third, to the Senior Certificates on a pro rata basis (other
than the Class A-PO Certificates and the Class A-X
Certificates) from the Available Distribution Amount remaining
after payments pursuant to clauses (1) and (2) above as a
payment of principal until their respective Class Principal
Balances have been reduced to zero:
(4) fourth, to the Senior Certificates, from the Available
Distribution Amount remaining after distributions pursuant to
clauses (1) through (3) above, by Pro Rata Allocation, the
amount of any unreimbursed Realized Losses previously
allocated to such Classes of Certificates; and
(5) fifth, to the Class R Certificates, the remainder, if any
(which is expected to be zero), of the Available Distribution
Amount remaining after distributions pursuant to clauses (1)
through (4) above.
(b) All reductions in the Certificate Principal Balance of a
Certificate effected by distributions of principal or allocations of Realized
Losses with respect to Loans made on any Distribution Date shall be binding upon
all Holders of such Certificate and of any Certificate issued upon the
registration of transfer or exchange therefor or in lieu thereof, whether or not
such distribution is noted on such Certificate. The final distribution of
principal of each Certificate (and the final distribution with respect to the
Class R Certificate upon termination of the Trust Fund) shall be payable in the
manner provided above only upon presentation and surrender thereof on or after
the Distribution Date therefor at the office or agency of the Securities
Administrator specified in the notice delivered pursuant to Section 4.1(c) or
Section 9.1.
(c) Whenever, on the basis of Curtailments, Payoffs and Monthly
Payments on the Loans and Insurance Proceeds and Liquidation Proceeds received
and expected to be received
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during the applicable Prepayment Period, the Securities Administrator believes
that the entire remaining unpaid Class Principal Balance of any Class of
Certificates shall become distributable on the next Distribution Date, the
Securities Administrator shall, no later than the Determination Date of the
month of such Distribution Date, mail or cause to be mailed to each Person in
whose name a Certificate to be so retired is registered at the close of business
on the Record Date, to the Underwriter and to each Rating Agency a notice to the
effect that:
(i) it is expected that funds sufficient to make such final
distribution shall be available in the Distribution Account on
such Distribution Date, and
(ii) if such funds are available, (A) such final distribution shall
be payable on such Distribution Date, but only upon
presentation and surrender of such Certificate at the office
or agency of the Securities Administrator maintained for such
purpose (the address of which shall be set forth in such
notice), and (B) no interest shall accrue on such Certificate
after such Distribution Date.
Section 4.2 ALLOCATION OF REALIZED LOSSES.
Prior to each Distribution Date, the Master Servicer, based solely on
the information provided by the related Servicer, shall determine the amount of
Realized Losses, if any, with respect to each Loan.
All Realized Losses, other than Excess Losses, shall be allocated as
follows: (i) for losses allocable to principal (a) first, to the Subordinate
Certificates in the following order: Class B-5, Class B-4, Class B-3 Class B-2,
Class B-1, Class M until each of their Class Principal Balances have been
reduced to zero and (b) second, to the Senior Certificates, by Pro Rata
Allocation, until the Class Principal Balances thereof have been reduced to
zero; PROVIDED, HOWEVER, that prior to the Credit Support Depletion Date, if the
loss is recognized with respect to a Discount Loan, the Discount Fraction of
such loss shall first be allocated to the Class A-PO Certificates and the
remainder of such loss shall be allocated as described above in this clause (i);
and (ii) for losses allocable to interest (a) first, to the Subordinate
Certificates in the following order: Class B-5, Class B-4, Class B-3 Class B-2,
Class B-1, Class M, in reduction of accrued but unpaid interest thereon until
the amount of accrued interest thereon has been reduced to zero and then in
reduction of the Class Principal Balance of such Certificates in the same order
until the certificate principal balances thereof have been reduced to zero and
(b) second, to the Senior Certificates thereof, by Pro Rata Allocation, until
the Class Principal Balances thereof have been reduced to zero.
Excess Losses shall be allocated among the Senior Certificates and the
Subordinate Certificates by Pro Rata Allocation; PROVIDED, HOWEVER, that prior
to the Credit Support Depletion Date if the loss is recognized with respect to a
Discount Loan, the Discount Fraction of such loss shall be allocated first to
the Class A-PO Certificates and the remainder of such loss shall be allocated as
described in clause (i) in the immediately preceding paragraph.
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On each Distribution Date, after giving effect to the principal
distributions and allocations and reimbursement of losses as provided in this
Agreement (without regard to this paragraph), if the Aggregate Certificate
Principal Balance of all outstanding Classes of Certificates exceeds the
aggregate Principal Balance of the Loans as of the last day of the related Due
Period (after deduction of all principal payments due during the related Due
Period in respect of each such Loan to the extent received or advanced and
unscheduled payments of principal received during the related Prepayment
Period), then such excess shall be deemed a principal loss and shall be
allocated (i) first, to the Subordinate Certificates in reverse order of
seniority until each of their Class Principal Balances has been reduced to zero,
and (ii) second, to the Senior Certificates, other than the Interest Only
Certificates, by Pro Rata Allocation.
Section 4.3 STATEMENTS TO CERTIFICATEHOLDERS.
(a) On each Distribution Date, the Securities Administrator shall
provide or make available, upon request to each Holder of the Regular Interest
Certificates, a statement (each, a "Remittance Report") as to the distributions
made on such Distribution Date setting forth:
(i) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to principal;
(ii) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to interest;
(iii) The aggregate Servicing Fee received by each Servicer and Master
Servicing Fee received by the Master Servicer during the related Due Period;
(iv) The number and aggregate Principal Balance of the Loans delinquent
one, two and three months or more;
(v) The (A) number and aggregate Principal Balance of Loans with
respect to which foreclosure proceedings have been initiated, and (B) the number
and aggregate Principal Balance of Mortgaged Properties acquired through
foreclosure, deed in lieu of foreclosure or other exercise of rights respecting
the Trustee's security interest in the Loans;
(vi) The aggregate Principal Balance of the Loans as of the close of
business on the last day of the related Prepayment Period;
(vii) The amount of Special Hazard Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(viii) The amount of Bankruptcy Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(ix) The amount of Fraud Coverage available to the Senior Certificates
remaining as of the close of business on the applicable Determination Date;
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(x) The amount of Realized Losses with respect to the Loans allocable
to the Certificates on the related Distribution Date and the cumulative amount
of Realized Losses incurred and allocated to the Certificates since the Cut-Off
Date;
(xi) The amount of interest accrued but not paid to each Class of
Certificates entitled to interest since (a) the prior Distribution Date and (b)
the Closing Date;
(xii) The amount of funds advanced by each Servicer and the Master
Servicer for such Distribution Date;
(xiii) The total amount of Payoffs and Curtailments received during the
related Prepayment Period;
(xiv) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number of such Mortgage Loan, the
unpaid principal balance and the Scheduled Principal Balance of such Mortgage
Loan;
(xv) to the extent provided by the Servicer, the book value of any REO
Property as of the close of business on the last Business Day of the calendar
month preceding the Distribution Date;
(xvi) the aggregate amount of extraordinary Trust Fund expenses
withdrawn from the Distribution Account for such Distribution Date;
(xvii) the Class Principal Balance of each Class of Certificates, after
giving effect to the distributions and allocations of Realized Losses made on
such Distribution Date, separately identifying any reduction thereof due to
allocations of Realized Losses;
(xviii) the aggregate amount of any Prepayment Interest Shortfalls for
such Distribution Date, to the extent not covered by payments by the Master
Servicer pursuant to Section 3.20; and
(xix) the aggregate amount of Relief Act Interest Shortfalls for such
Distribution Date.
The Securities Administrator shall make such statement (and, at its
option, any additional files containing the same information in an alternative
format) available each month to the Certificateholders, the Trustee and the
Rating Agencies via the Securities Administrator's internet website. The
Securities Administrator's internet website shall initially be located at
http:\\xxx.xxxxxxx.xxx and assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at 0-000-000-0000.
Parties that are unable to use the above distribution option are entitled to
have a paper copy mailed to them via first class mail by calling the customer
service desk and indicating such. The Securities Administrator shall have the
right to change the way such statements are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Securities Administrator shall provide timely and adequate notification to all
above parties regarding any such changes.
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In the case of information furnished pursuant to subclauses (i) through
(iii) above, the amounts shall be expressed as a dollar amount per single
Certificate of the relevant Class.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall furnish to each Person who at any time during
the calendar year was a Holder of a Regular Interest Certificate a statement
containing the information set forth in subclauses (i) through (iii) above,
aggregated for such calendar year or applicable portion thereof during which
such person was a Certificateholder. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time are
in force.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall furnish to each Person who at any time during
the calendar year was a Holder of a Residual Certificate a statement setting
forth the amount, if any, actually distributed with respect to the Residual
Certificates, as appropriate, aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder.
The Securities Administrator shall, upon request, furnish to each
Certificateholder, during the term of this Agreement, such periodic, special, or
other reports or information, whether or not provided for herein, as shall be
reasonable with respect to the Certificateholder, as applicable, or otherwise
with respect to the purposes of this Agreement, all such reports or information
to be provided at the expense of the Certificateholder, in accordance with such
reasonable and explicit instructions and directions as the Certificateholder may
provide.
On each Distribution Date the Securities Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each
class of Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Securities Administrator and Bloomberg.
Section 4.4 ADVANCES.
If the Monthly Payment on a Loan or a portion thereof is delinquent as
of its Due Date, other than as a result of interest shortfalls due to bankruptcy
proceedings or application of the Relief Act, and the related Servicer fails to
make an advance of the delinquent amount pursuant to the related Servicing
Agreement, the Master Servicer shall deposit in the Distribution Account, from
its own funds or from amounts on deposit in the Distribution Account that are
held for future distribution, not later than the Distribution Account Deposit
Date immediately preceding the related Distribution Date an amount equal to such
delinquency, net of the Servicing Fee and Master Servicing Fee for such Loan
except to the extent the Master Servicer determines any such advance to be
nonrecoverable from Liquidation Proceeds, Insurance Proceeds or future payments
on the Loan for which such Advance was made. Any amounts held for future
distribution and so used shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the
Distribution Account on or before any future Distribution Account Deposit Date
to the extent that the Available Distribution
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Amount for the related Distribution Date (determined without regard to Advances
to be made on the Distribution Account Deposit Date) shall be less than the
total amount that would be distributed to the Classes of Certificateholders
pursuant to Section 4.1 on such Distribution Date if such amounts held for
future distributions had not been so used to make Advances. Subject to the
foregoing, the Master Servicer shall continue to make such Advances through the
date that the related Servicer is required to do so under its Servicing
Agreement. If applicable, on the Distribution Account Deposit Date, the Master
Servicer shall present an Officer's Certificate to the Trustee (i) stating that
the Master Servicer elects not to make an Advance in a stated amount and (ii)
detailing the reason it deems the advance to be nonrecoverable.
Section 4.5 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement, the Trustee and
the Securities Administrator shall comply with all federal withholding
requirements respecting payments to Certificateholders of interest or original
issue discount that the Trustee and the Securities Administrator reasonably
believe are applicable under the Code. The consent of Certificateholders shall
not be required for such withholding. In the event the Securities Administrator
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall indicate the amount withheld to
such Certificateholders.
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ARTICLE V
THE CERTIFICATES
Section 5.1 THE CERTIFICATES.
(a) Each of the Certificates shall be substantially in the forms
annexed hereto as exhibits, and shall, on original issue, be executed and
authenticated by the Securities Administrator and delivered by the Trustee to or
upon the receipt of a written order to authenticate from the Depositor
concurrently with the sale and assignment to the Trustee of the Trust Fund. The
Certificates shall be issuable in Authorized Denominations evidencing Percentage
Interests. The Certificates (other than the Class A-3 Certificates and the Class
R Certificates) shall be evidenced by one or more Certificates representing a
Percentage Interest with a minimum dollar denomination of $25,000 and integral
multiples of $1 in excess thereof. The Class A-3 Certificates shall be evidenced
by one or more Certificates representing a Percentage Interest with a minimum
dollar denomination of $1,000 and integral multiples of $1 in excess thereof.
The Class R Certificates shall be evidenced in registered, certificated form in
a single denomination of a 100% Percentage Interest. The Junior Subordinate
Certificates shall be evidenced by one or more Certificates in registered,
certificated form in minimum denominations of $25,000 and integral multiples of
$1 in excess thereof.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trust Fund by a Responsible Officer of the Securities
Administrator. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, authorized to
sign on behalf of the Securities Administrator shall bind the Trust Fund,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such Certificate. No Certificate shall be
entitled to any benefit under this Agreement or be valid for any purpose, unless
such Certificate shall have been manually authenticated by the Securities
Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication. The
Class A, Class M, Class B-1 and Class B-2 Certificates shall be Book-Entry
Certificates. The Class B-3, Class B-4, Class B-5 and Class R Certificates shall
not be Book-Entry Certificates but shall be issued in fully registered
certificate form.
(b) Neither the Trustee nor the Securities Administrator shall have any
liability to the Trust Fund and shall be indemnified by the Trust Fund for, any
cost, liability or expense incurred by them arising from a registration of a
Certificate or transfer, pledge sale or other disposition of a Certificate in
reliance upon a certification, Officer's Certificate, affidavit, ruling or
Opinion of Counsel described in this Article V.
SECTION 5.2 CERTIFICATES ISSUABLE IN CLASSES; DISTRIBUTIONS OF
PRINCIPAL AND INTEREST; AUTHORIZED DENOMINATIONS. The aggregate principal amount
of Certificates that may be authenticated and delivered under this Agreement is
limited to the aggregate Principal Balance of
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the Loans as of the Cut-Off Date, as specified in the Preliminary Statement to
this Agreement, except for Certificates authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Certificates pursuant to Section 5.3. Such aggregate principal amount shall be
allocated among one or more Classes having designations, types of interests,
initial per annum Remittance Rates, initial Class Principal Balances and last
scheduled Distribution Dates as specified in the Preliminary Statement to this
Agreement. The aggregate Percentage Interest of each Class of Certificates of
which the Class Principal Balance equals zero as of the Cut-Off Date that may be
authenticated and delivered under this Agreement is limited to 100%.
Certificates shall be issued in Authorized Denominations.
SECTION 5.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES. (a)
The Securities Administrator shall cause to be kept at its Corporate Trust
Office a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office of the Securities Administrator maintained for such
purpose pursuant to the foregoing paragraph for certificate transfer and
surrender purposes, and, in the case of the Junior Subordinate Certificates or
the Class R Certificates, upon satisfaction of the conditions set forth in
Sections 5.3(d), (e) and (f) below, the Securities Administrator on behalf of
the Trust shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same aggregate
Percentage Interest.
At the option of the Certificateholders, Certificates may be exchanged
for other Certificates in authorized denominations and the same aggregate
Percentage Interests, upon surrender of the Certificates to be exchanged at any
such office or agency. Whenever any Certificates are so surrendered for
exchange, the Securities Administrator shall execute, authenticate and deliver
the Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trustee or the Securities
Administrator) be duly endorsed by, or be accompanied by a written instrument of
transfer satisfactory to the Trustee and the Securities Administrator duly
executed by, the Holder thereof or his attorney duly authorized in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of such Certificates may not
be transferred by the Trustee or the Securities Administrator except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of such
Certificates; (iii) ownership and transfers of registration of such Certificates
on the books of the Depository shall be governed by applicable rules established
by the Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee and the
Securities Administrator shall for all purposes deal with the
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Depository as representative of the Certificate Owners of the Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of such representative shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; (vi)
the Trustee and the Securities Administrator may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners; and (vii)
the direct participants of the Depository shall have no rights under this
Agreement under or with respect to any of the Certificates held on their behalf
by the Depository, and the Depository may be treated by the Trustee, the
Securities Administrator and either the Trustee's or the Securities
Administrator's agents, employees, officers and directors as the absolute owner
of the Certificates for all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
that it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The parties hereto are
hereby authorized to execute a Letter of Representations with the Depository or
take such other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms of
any such Letter of Representation and this Agreement, the terms of this
Agreement shall control.
(c) If (i)(x) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
discharge properly its responsibilities as Depository and (y) the Securities
Administrator or the Depositor is unable to locate a qualified successor, (ii)
the Depositor, at its sole option, with the consent of the Securities
Administrator, elects to terminate the book-entry system through the Depository
or (iii) after the occurrence of a Master Servicer Event of Default, the
Certificate Owners of the Book-Entry Certificates representing Percentage
Interests of such Classes aggregating not less than 66% advise the Securities
Administrator and Depository through the Depository Participants in writing that
the continuation of a book-entry system through the Depository to the exclusion
of definitive, fully registered certificates (the "Definitive Certificates") to
Certificate Owners is no longer in the best interests of the Certificate Owners.
Upon surrender to the Securities Administrator of the Book-Entry Certificates by
the Depository, accompanied by registration instructions from the Depository for
registration, the Securities Administrator shall, at the Depositor's expense, in
the case of (i) and (ii) above, or the Master Servicer's expense, in the case of
(iii) above, execute on behalf of the Trust and authenticate the Definitive
Certificates. None of the Depositor, the Master Servicer, the Trustee or the
Securities Administrator 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 Certificates, the Trustee,
the Securities Administrator, the Master Servicer and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
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(d) No Transfer of a Junior Subordinate Certificate shall be made
unless such Transfer is made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "1933 Act") and any applicable
state securities laws or is exempt from the registration requirements under the
1933 Act and such state securities laws. In the event of any such transfer in
reliance upon an exemption from the 1933 Act and such state securities laws, in
order to assure compliance with the 1933 Act and such state securities laws, the
Certificateholder desiring to effect such Transfer and such Certificateholder's
prospective Transferee shall each certify to the Trustee and the Securities
Administrator in writing the facts surrounding the Transfer in substantially the
forms set forth in Exhibit D (the "Transferor Certificate") and (x) deliver a
letter in substantially the form of either Exhibit E (the "Investment Letter")
or Exhibit F (the "Rule 144A Letter") or (y) there shall be delivered to the
Trustee, the Depositor and the Securities Administrator an Opinion of Counsel
acceptable to and in form reasonably satisfactory to the Trustee, the Depositor
and the Securities Administrator that such Transfer may be made pursuant to an
exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor, the Seller, the Master Servicer, the Securities
Administrator or the Trustee. Each Holder of a Junior Subordinate Certificate
desiring to effect such Transfer shall, and does hereby agree to, indemnify the
Trustee, the Depositor, the Seller, the Securities Administrator and the Master
Servicer against any liability that may result if the Transfer is not so exempt
or is not made in accordance with such federal and state laws.
(e) No transfer of a Junior Subordinate Certificate or Class R
Certificate or any interest therein shall be made to any Plan subject to ERISA
or Section 4975 of the Code, any Person acting, directly or indirectly, on
behalf of any such Plan or any Person acquiring such Certificates with "Plan
Assets" of a Plan within the meaning of the Department of Labor regulation
promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as certified by each
such Transferee in the form of Exhibit G, unless the Securities Administrator is
provided with an Opinion of Counsel for the benefit of the Depositor, the Master
Servicer, the Trustee, the Securities Administrator and the Master Servicer and
on which they may rely which establishes to the satisfaction of each of them
that the purchase of such Certificates is permissible under applicable law, will
not constitute or result in any prohibited transaction under ERISA or Section
4975 of the Code and will not subject the Depositor, the Master Servicer, the
Trustee, the Securities Administrator or the Trust Fund to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Depositor, the Master Servicer, the
Trustee, the Securities Administrator or the Trust Fund. Neither a certification
nor an Opinion of Counsel will be required in connection with the initial
transfer of any such Certificate by the Depositor to an affiliate of the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets) and the Trustee and the Securities Administrator shall be
entitled to conclusively rely upon a representation (which, upon the request of
the Trustee or the Securities Administrator, shall be a written representation)
from the Depositor of the status of such transferee as an affiliate of the
Depositor.
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Each Transferee of a Senior Subordinate Certificate will be deemed to
have represented by virtue of its purchase or holding of such Certificate (or
interest therein) that either (a) such Transferee is not a Plan or purchasing
such Certificate with Plan Assets, (b) it has acquired and is holding such
Certificate in reliance on Prohibited Transaction Exemption ("PTE") 90-59, 55
Fed. Reg. 36724 (September 6, 1990), as amended by PTE 97-34, 62 Fed. Reg. 39021
(July 21, 1997), PTE 2000-58, 65 Fed. Reg. 67765 (November 13, 2000) and PTE
2002-41 67 Fed. Reg. 54487 (August 22, 2002) (the "Exemption"), and that it
understands that there are certain conditions to the availability of the
Exemption including that such Certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by a Rating Agency or (c)
the following conditions are satisfied: (i) such Transferee is an insurance
company, (ii) the source of funds used to purchase or hold such Certificate (or
interest therein) is an "insurance company general account" (as defined in U.S.
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied.
If any Subordinate Certificate or Class R Certificate or any interest
therein is acquired or held in violation of the provisions of this Section
5.3(e), the next preceding permitted beneficial owner will be treated as the
beneficial owner of that Certificate retroactive to the date of transfer to the
purported beneficial owner. Any purported beneficial owner whose acquisition or
holding of any such Certificate or interest therein was effected in violation of
the provisions of the two preceding paragraphs shall indemnify and hold harmless
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
and the Trust from and against any and all liabilities, claims, costs or
expenses incurred by those parties as a result of that acquisition or holding.
(f) Each Transferee of a Class R Certificate shall be deemed by the
acceptance or acquisition of the related Ownership Interest to have agreed to be
bound by the following provisions and to have irrevocably appointed the
Depositor or its designee as its attorney-in-fact to negotiate the terms of any
mandatory sale under clause (v) below and to execute all instruments of transfer
and to do all other things necessary in connection with any such sale, and the
rights of each Transferee of a Class R Certificate are expressly subject to the
following provisions:
(i) Each such Transferee shall be a Permitted Transferee and
shall promptly notify the Securities Administrator of any
change or impending change in its status as a Permitted
Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class
R Certificate unless such Ownership Interest is a PRO RATA
undivided interest.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Class R Certificate, the Securities
Administrator shall as a condition to registration of the
transfer, require delivery to it, in form and substance
satisfactory to it, of each of the following:
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(A) an affidavit in the form of Exhibit C hereto from
the proposed Transferee to the effect that such Transferee is
a Permitted Transferee and that it is not acquiring its
Ownership Interest in the Class R Certificate that is the
subject of the proposed transfer as a nominee, trustee or
agent for any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed Transferee to the
effect that the proposed Transferee agrees to be bound by and
to abide by the transfer restrictions applicable to the Class
R Certificates.
(iv) Any attempted or purported transfer of any Ownership
Interest in a Class R Certificate in violation of the
provisions of this Section shall be absolutely null and void
and shall vest no rights in the purported Transferee. If any
purported Transferee shall, in violation of the provisions of
this Section, become a Holder of a Class R Certificate, then
the prior Holder of such Class R Certificate that is a
Permitted Transferee shall, upon discovery that the
registration of transfer of such Class R Certificate was not
in fact permitted by this Section, be restored to all rights
as Holder thereof retroactive to the date of registration of
transfer of such Class R Certificate. The Securities
Administrator shall be under no liability to any Person for
any registration of transfer of a Class R Certificate that is
in fact not permitted by this Section or for making any
distributions due on such Class R Certificate to the Holder
thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the
Securities Administrator received the documents specified in
clause (iii). The Securities Administrator shall be entitled
to recover from any Holder of a Class R Certificate that was
in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Class R
Certificate. Any such distributions so recovered by the
Securities Administrator shall be distributed and delivered by
the Securities Administrator to the prior Holder of such Class
R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Class R Certificate in violation
of the restrictions in this Section, then the Securities
Administrator shall have the right but not the obligation,
without notice to the Holder of such Class R Certificate or
any other Person having an Ownership Interest therein, to
notify the Depositor to arrange for the sale of such Class R
Certificate. The proceeds of such sale, net of commissions
(which may include commissions payable to the Depositor or its
affiliates in connection with such sale), expenses and taxes
due, if any, will be remitted by the Securities Administrator
to the previous Holder of such Class R Certificate that is a
Permitted Transferee, except that in the event that the
Securities Administrator determines that the Holder of such
Class R Certificate may be liable for any amount due under
this Section or any other provisions of this Agreement, the
Securities Administrator may withhold a corresponding amount
from such
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remittance as security for such claim. The terms and
conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Securities
Administrator and it shall not be liable to any Person having
an Ownership Interest in a Class R Certificate as a result of
its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Class R Certificate in violation
of the restrictions in this Section, then the Securities
Administrator upon receipt of reasonable compensation will
provide to the Internal Revenue Service, and to the persons
specified in Sections 860E(e)(3) and (6) of the Code,
information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of Class R interests to
Disqualified Organizations.
The foregoing provisions of this Section shall cease to apply
to transfers occurring on or after the date on which there shall have been
delivered to the Securities Administrator, in form and substance satisfactory to
the Securities Administrator, (i) written notification from each Rating Agency
that the removal of the restrictions on transfer set forth in this Section will
not cause such Rating Agency to downgrade its rating of the Certificates and
(ii) an Opinion of Counsel to the effect that such removal will not cause any
REMIC created hereunder to fail to qualify as a REMIC. The Holder of the Class R
Certificate issued hereunder, while not a Disqualified Organization, is the Tax
Matters Person.
(g) No service charge shall be made for any registration of transfer or
exchange of Certificates of any Class, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be canceled by the Securities Administrator and disposed of pursuant to
its standard procedures.
SECTION 5.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (i)
any mutilated Certificate is surrendered to the Trustee or the Securities
Administrator, or (ii) the Trustee or the Securities Administrator receives
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Securities
Administrator such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a protected purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.4, the Trustee or the Securities Administrator
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. Any replacement Certificate issued pursuant to
this Section 5.4 shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost or
stolen Certificate shall be found at any time.
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SECTION 5.5 PERSONS DEEMED OWNERS. The Depositor, the Securities
Administrator, the Master Servicer, the Trustee, any agent of any of them may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.1 and for all other purposes whatsoever, and neither the Depositor, the
Securities Administrator, the Master Servicer, the Trustee, nor any agent of the
Depositor, the Securities Administrator, the Master Servicer or the Trustee
shall be affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.1 LIABILITY OF THE DEPOSITOR AND THE MASTER SERVICER.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor and
Master Servicer and undertaken hereunder by the Depositor and the Master
Servicer herein.
SECTION 6.2 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE MASTER
SERVICER.
Subject to the following paragraph, the Depositor shall keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation. Subject to the following paragraph, the
Master Servicer shall keep in full effect its existence, rights and franchises
as a corporation under the laws of the jurisdiction of its formation. The
Depositor and the Master Servicer each shall obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor or the Master Servicer may be merged or consolidated with
or into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, the Rating Agencies' ratings of the
Certificates in effect immediately prior to such merger or consolidation will
not be qualified, reduced or withdrawn as a result thereof (as evidenced by a
letter to such effect from the Rating Agencies).
SECTION 6.3 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE MASTER
SERVICER, THE SERVICERS, THE SECURITIES ADMINISTRATOR AND OTHERS.
None of the Depositor, the Master Servicer, the Securities
Administrator, the Servicers or any of the directors, officers, employees or
agents of the Depositor, the Master Servicer, the Securities Administrator or
the Servicers shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement or the Servicing Agreements, or
for errors in judgment; provided, however, that this provision shall not protect
the Depositor, the Master Servicer, the Securities Administrator or any such
person against any breach of warranties, representations or covenants made
herein or in the Servicing Agreements, or against any specific liability imposed
on the Master Servicer, the Securities Administrator or the Servicers pursuant
hereto or pursuant to the Servicing Agreements, or against any liability which
would otherwise be imposed by
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reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties hereunder
or under the Servicing Agreements. The Depositor, the Master Servicer, the
Securities Administrator, the Servicers and any director, officer, employee or
agent of the Depositor, the Master Servicer, the Securities Administrator or the
Servicers may rely in good faith on any document of any kind which, PRIMA FACIE,
is properly executed and submitted by any Person respecting any matters arising
hereunder or under the Servicing Agreements. The Depositor, the Master Servicer,
the Servicers, the Securities Administrator, the Custodian and any director,
officer, employee or agent of the Depositor, the Master Servicer, the Servicers,
the Custodian or the Securities Administrator shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement, the Certificates or
any Servicing Agreement, or any loss, liability or expense incurred by any of
such Persons other than by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of its duties hereunder or by
reason of reckless disregard of its obligations and duties hereunder. None of
the Depositor, the Master Servicer, the Securities Administrator, the Custodian
or any Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement, the Custodial Agreement or the applicable Servicing Agreement
and, in its opinion, does not involve it in any expense or liability; provided,
however, that each of the Depositor, the Master Servicer, the Custodian and the
Securities Administrator may in its discretion undertake any such action which
it may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom (except any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer, the Custodian, the Servicers and the Securities
Administrator shall be entitled to be reimbursed therefor from the Distribution
Account as and to the extent provided in Article III, any such right of
reimbursement being prior to the rights of the Certificateholders to receive any
amount in the Distribution Account.
SECTION 6.4 LIMITATION ON RESIGNATION OF THE MASTER SERVICER.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect obtained at the expense of the
Master Servicer and delivered to the Trustee and the Rating Agencies. No
resignation of the Master Servicer shall become effective until the Trustee or a
successor Master Servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
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SECTION 6.5 ASSIGNMENT OF MASTER SERVICING.
The Master Servicer may sell and assign its rights and delegate its
duties and obligations in its entirety as Master Servicer under this Agreement;
provided, however, that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be a Person which shall be qualified to
service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth
of not less than $15,000,000 (unless otherwise approved by each Rating Agency
pursuant to clause (ii) below); (c) shall be reasonably satisfactory to the
Trustee (as evidenced in a writing signed by the Trustee); and (d) shall execute
and deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by it as master servicer under this Agreement, any
custodial agreement from and after the effective date of such agreement; (ii)
each Rating Agency shall be given prior written notice of the identity of the
proposed successor to the Master Servicer and each Rating Agency's rating of the
Certificates in effect immediately prior to such assignment, sale and delegation
will not be downgraded, qualified or withdrawn as a result of such assignment,
sale and delegation, as evidenced by a letter to such effect delivered to the
Master Servicer and the Trustee; and (iii) the Master Servicer assigning and
selling the master servicing shall deliver to the Trustee an officer's
certificate and an Opinion of Independent counsel, each stating that all
conditions precedent to such action under this Agreement have been completed and
such action is permitted by and complies with the terms of this Agreement. No
such assignment or delegation shall affect any liability of the Master Servicer
arising prior to the effective date thereof.
SECTION 6.6 RIGHTS OF THE DEPOSITOR IN RESPECT OF THE MASTER SERVICER.
The Master Servicer shall afford the Depositor and the Trustee, upon
reasonable notice, during normal business hours, access to all records
maintained by the Master Servicer in respect of the Master Servicer's rights and
obligations hereunder and access to officers of the Master Servicer responsible
for such obligations. Upon request, the Master Servicer shall furnish to the
Depositor and the Trustee the most recent financial statements of its parent and
such other information relating to the Master Servicer's capacity to perform its
obligations under this Agreement as it possesses. To the extent such information
is not otherwise available to the public, the Depositor and the Trustee shall
not disseminate any information obtained pursuant to the preceding two sentences
without the Master Servicer's written consent, except as required pursuant to
this Agreement or to the extent that it is appropriate to do so (i) in working
with legal counsel, auditors, taxing authorities or other governmental agencies
or (ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over the
Depositor, the Trustee or the Trust, and in any case, the Depositor or the
Trustee, as the case may be, shall use its best efforts to assure the
confidentiality of any such disseminated non-public information. The Depositor
may, but is not obligated to, enforce the obligations of the Master Servicer
under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer under this
Agreement or exercise the rights of the Master Servicer under this
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Agreement; provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Master Servicer and is not obligated to
supervise the performance of the Master Servicer under this Agreement or
otherwise.
ARTICLE VII
DEFAULT
SECTION 7.1 MASTER SERVICER EVENTS OF DEFAULT.
(A) "Master Servicer Event of Default," wherever used herein, means any
one of the following events:
(i) [Reserved];
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of the Master Servicer contained in this
Agreement, or the breach by the Master Servicer of any representation
and warranty contained in Section 2.5, which continues unremedied for a
period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Master Servicer by the Depositor or the Trustee or to the Master
Servicer, the Depositor and the Trustee by the Holders of Certificates
evidencing, in aggregate, not less than 25% of the Trust Fund; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 90 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to it or of or relating to all or substantially all of
its property; or
(v) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vi) any failure of the Master Servicer to make any Advance on
any Distribution Account Deposit Date required to be made from its own
funds pursuant to
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Section 4.4 which continues unremedied until 3:00 p.m. New York time on
the Business Day immediately following the Distribution Account Deposit
Date.
If a Master Servicer Event of Default described in clauses (ii) through (v) of
this Section shall occur, then, and in each and every such case, so long as such
Master Servicer Event of Default shall not have been remedied, the Depositor or
the Trustee may, and at the written direction of the Holders of Certificates
evidencing, in aggregate, not less than 51% of the Trust Fund, the Trustee
shall, by notice in writing to the Master Servicer (and to the Depositor if
given by the Trustee or to the Trustee if given by the Depositor) with a copy to
each Rating Agency, terminate all of the rights and obligations of the Master
Servicer in its capacity as Master Servicer under this Agreement, to the extent
permitted by law, and in and to the Loans and the proceeds thereof. Except as
otherwise provided in Section 7.4, if a Master Servicer Event of Default
described in clause (vi) hereof shall occur, the Trustee shall, by notice in
writing to the Master Servicer and the Depositor, terminate all of the rights
and obligations of the Master Servicer in its capacity as Master Servicer under
this Agreement and in and to the Loans and the proceeds thereof. On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Loans or
otherwise, shall pass to and be vested in the Trustee pursuant to and under this
Section, and, without limitation, the Trustee is hereby authorized and
empowered, as attorney-in-fact or otherwise, to execute and deliver, on behalf
of and at the expense of the Master Servicer, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Loans and related
documents, or otherwise. The Master Servicer agrees promptly (and in any event
no later than ten Business Days subsequent to such notice) to provide the
Trustee with all documents and records requested by it to enable it to assume
the Master Servicer's functions under this Agreement, and to cooperate with the
Trustee in effecting the termination of the Master Servicer's responsibilities
and rights under this Agreement (provided, however, that the Master Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and shall continue to be entitled to the
benefits of Section 6.3, notwithstanding any such termination, with respect to
events occurring prior to such termination). For purposes of this Section 7.1,
the Trustee shall not be deemed to have knowledge of a Master Servicer Event of
Default unless a Responsible Officer of the Trustee assigned to and working in
the Trustee's Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such a Master Servicer Event of
Default is received by the Trustee and such notice references the Certificates,
the Trust or this Agreement. The Trustee shall promptly notify the Rating
Agencies of the occurrence of a Master Servicer Event of Default of which it has
knowledge as provided above.
SECTION 7.2 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time the Master Servicer receives a notice of
termination, the Trustee shall be the successor in all respects to the Master
Servicer in its capacity as Master
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Servicer under this Agreement and the transactions set forth or provided for
herein, and all the responsibilities, duties and liabilities relating thereto
and arising thereafter shall be assumed by the Trustee (except for any
representations or warranties of the Master Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.3 and the
obligation to deposit amounts in respect of losses pursuant to Section 3.23(c))
by the terms and provisions hereof including, without limitation, the Master
Servicer's obligations to make Advances pursuant to Section 4.4; provided,
however, that if the Trustee is prohibited by law or regulation from obligating
itself to make advances regarding delinquent mortgage loans, then the Trustee
shall not be obligated to make Advances pursuant to Section 4.4; and provided
further, that any failure to perform such duties or responsibilities caused by
the Master Servicer's failure to provide information required by Section 7.1
shall not be considered a default by the Trustee as successor to the Master
Servicer hereunder. As compensation therefor, the Trustee shall be entitled to
the Master Servicing Fee and all funds relating to the Loans, investment
earnings on the Distribution Account and all other renumeration to which the
Master Servicer would have been entitled if it had continued to act hereunder.
Notwithstanding the above and subject to the immediately following paragraph,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act or if it is prohibited by law from making advances regarding
delinquent mortgage loans or if the Holders of Certificates evidencing, in
aggregate, not less than 51% of the Trust Fund so request in writing promptly
appoint or petition a court of competent jurisdiction to appoint, an established
mortgage loan servicing institution acceptable to each Rating Agency and having
a net worth of not less than $15,000,000, as the successor to the Master
Servicer under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer under this
Agreement.
No appointment of a successor to the Master Servicer under
this Agreement shall be effective until the assumption by the successor of all
of the Master Servicer's responsibilities, duties and liabilities hereunder. In
connection with such appointment and assumption described herein, the Trustee
may make such arrangements for the compensation of such successor out of
payments on Loans as it and such successor shall agree; PROVIDED, HOWEVER, that
no such compensation shall be in excess of that permitted the Master Servicer as
such hereunder. The Depositor, the Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. Pending appointment of a successor to the Master Servicer under
this Agreement, the Trustee shall act in such capacity as hereinabove provided.
The transition costs and expenses incurred by the Trustee in connection with the
replacement of the Master Servicer shall be reimbursed out of the Trust.
SECTION 7.3 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination of the Master Servicer pursuant to Section 7.1
above or any appointment of a successor to the Master Servicer pursuant to
Section 7.2 above, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
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(b) Not later than the later of 60 days after the occurrence of any
event, which constitutes or which, with notice or lapse of time or both, would
constitute a Master Servicer Event of Default or five days after a Responsible
Officer of the Trustee becomes aware of the occurrence of such an event, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such occurrence, unless such default or Master Servicer Event of Default shall
have been cured or waived.
SECTION 7.4 WAIVER OF MASTER SERVICER EVENTS OF DEFAULT.
The Holders evidencing, in aggregate, not less than 66% of the
aggregate Percentage Interests of all Classes of Certificates affected by any
default or Master Servicer Event of Default hereunder may waive such default or
Master Servicer Event of Default; PROVIDED, HOWEVER, that a default or Master
Servicer Event of Default under clause (i) or (vi) of Section 7.1 may be waived
only by all of the Holders of the Regular Interest Certificates. Upon any such
waiver of a default or Master Servicer Event of Default, such default or Master
Servicer Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other default or Master Servicer Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION 8.1 DUTIES OF TRUSTEE AND SECURITIES ADMINISTRATOR.
The Trustee, prior to the occurrence of a Master Servicer Event of
Default and after the curing or waiver of all Master Servicer Events of Default
which may have occurred, and the Securities Administrator each undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement as duties of the Trustee and the Securities Administrator,
respectively. During the continuance of a Master Servicer Event of Default, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee enumerated in
this Agreement shall not be construed as a duty.
Each of the Trustee and the Securities Administrator, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to it, which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement. If any such instrument is found not to conform on its face to the
requirements of this Agreement, the Trustee or the Securities Administrator, as
the case may be, shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, the Securities Administrator shall provide notice to the Trustee
thereof and the Trustee shall provide notice to the Certificateholders.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; PROVIDED, HOWEVER, that:
(i) Prior to the occurrence of a Master Servicer Event of
Default, and after the curing or waiver of all such Master Servicer
Events of Default which may have occurred with respect to the Trustee
and at all times with respect to the Securities Administrator, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, neither the Trustee nor the
Securities Administrator shall be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee or the Securities Administrator and, in
the absence of bad faith on the part of the Trustee or the Securities
Administrator, respectively, the Trustee or the Securities
Administrator, respectively, may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee or the
Securities Administrator, respectively, that conform to the
requirements of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator
shall be liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of
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the Trustee or an officer or officers of the Securities Administrator,
respectively, unless it shall be proved that the Trustee or the
Securities Administrator, respectively, was negligent in ascertaining
the pertinent facts; and
(iii) Neither the Trustee nor the Securities Administrator
shall be liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the direction of the
Holders of Certificates evidencing, in aggregate, not less than 25% of
the Trust Fund relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee or the Securities
Administrator or exercising any trust or power conferred upon the
Trustee or the Securities Administrator under this Agreement.
SECTION 8.2 CERTAIN MATTERS AFFECTING TRUSTEE AND SECURITIES
ADMINISTRATOR.
(a) Except as otherwise provided in Section 8.1:
(i) The Trustee and the Securities Administrator may request
and rely upon and shall be protected in acting or refraining from
acting upon any resolution, Officers' Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult
with counsel of its selection and any advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(iii) Neither the Trustee nor the Securities Administrator
shall be under any obligation to exercise any of the trusts or powers
vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to
the Trustee or the Securities Administrator, as the case may be,
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of a Master Servicer Event of Default
(which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree
of care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own
affairs;
(iv) Neither the Trustee nor the Securities Administrator
shall be liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
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(v) Prior to the occurrence of a Master Servicer Event of
Default hereunder and after the curing or waiver of all Master Servicer
Events of Default which may have occurred with respect to the Trustee
and at all times with respect to the Securities Administrator, neither
the Trustee nor the Securities Administrator shall be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Holders of Certificates
evidencing, in aggregate, not less than 25% of the Trust Fund;
PROVIDED, HOWEVER, that if the payment within a reasonable time to the
Trustee or the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, not reasonably assured to the Trustee or
the Securities Administrator by such Certificateholders, the Trustee or
the Securities Administrator, as applicable, may require reasonable
indemnity satisfactory to it against such expense, or liability from
such Certificateholders as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(vii) The Securities Administrator shall not be liable for any
loss resulting from the investment of funds held in the Distribution
Account at the direction of the Master Servicer pursuant to Section
3.23(c);
(viii) Neither the Trustee nor the Securities Administrator
shall be liable for any action taken, suffered, or omitted to be taken
by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(ix) the Trustee shall not be deemed to have notice of any
default or Master Servicer Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Certificates and this Agreement; and
(x) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, each
agent, custodian and other Person employed to act hereunder.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any
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such suit, action or proceeding instituted by the Trustee shall be brought in
its name for the benefit of all the Holders of such Certificates, subject to the
provisions of this Agreement.
SECTION 8.3 TRUSTEE AND SECURITIES ADMINISTRATOR NOT LIABLE FOR
CERTIFICATES OR LOANS.
The recitals contained herein and in the Certificates (other than the
signature of the Securities Administrator, the authentication of the Securities
Administrator on the Certificates, the acknowledgments of the Trustee contained
in Article II and the representations and warranties of the Trustee in Section
8.12) shall be taken as the statements of the Depositor and neither the Trustee
nor the Securities Administrator assumes any responsibility for their
correctness. Neither the Trustee nor the Securities Administrator makes any
representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 8.12) or of the
Certificates (other than the signature of the Securities Administrator and
authentication of the Securities Administrator on the Certificates) or of any
Loan or related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor or the Master Servicer in respect of the Loans or deposited in or
withdrawn from the Distribution Account.
SECTION 8.4 TRUSTEE AND SECURITIES ADMINISTRATOR MAY OWN CERTIFICATES.
Each of the Trustee and the Securities Administrator in its individual
capacity or any other capacity may become the owner or pledgee of Certificates
and may transact business with other interested parties and their Affiliates
with the same rights it would have if it were not Trustee or the Securities
Administrator.
SECTION 8.5 FEES AND EXPENSES OF TRUSTEE AND SECURITIES ADMINISTRATOR.
The fees of the Trustee and the Securities Administrator hereunder and
of Xxxxx Fargo under the Custodial Agreement shall be paid in accordance with a
side letter agreement with the Master Servicer and at the sole expense of the
Master Servicer. In addition, the Trustee, the Securities Administrator, the
Custodian and any director, officer, employee or agent of the Trustee, the
Securities Administrator and the Custodian shall be indemnified by the Trust and
held harmless against any loss, liability or expense (including reasonable
attorney's fees and expenses) incurred by the Trustee or the Securities
Administrator in connection with any default administration to be performed by
the Trustee or the Securities Administrator pursuant to this Agreement or other
agreements related hereto and any claim or legal action or any pending or
threatened claim or legal action arising out of or in connection with the
acceptance or administration of its respective obligations and duties under this
Agreement, including other agreements related hereto, other than any loss,
liability or expense (i) for which the Trustee is indemnified by the Master
Servicer, (ii) that constitutes a specific liability of the Trustee or the
Securities Administrator pursuant to Section 10.1(g) or (iii) any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder by reason of reckless
disregard of obligations and duties hereunder. The Master Servicer agrees to
indemnify the Trustee, from, and hold the Trustee harmless against, any loss,
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liability or expense (including reasonable attorney's fees and expenses)
incurred by the Trustee by reason of the Master Servicer's willful misfeasance,
bad faith or gross negligence in the performance of its duties under this
Agreement or by reason of the Master Servicer's reckless disregard of its
obligations and duties under this Agreement. Such indemnity shall survive the
termination or discharge of this Agreement and the resignation or removal of the
Trustee. Any payment hereunder made by the Master Servicer to the Trustee shall
be from the Master Servicer's own funds, without reimbursement from the REMIC
therefor.
SECTION 8.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND SECURITIES
ADMINISTRATOR.
The Trustee and the Securities Administrator shall at all times be a
corporation or an association (other than the Depositor, the Seller, the Master
Servicer or any Affiliate of the foregoing) organized and doing business under
the laws of any state or the United States of America, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 (or a member of a bank holding company whose capital and
surplus is at least $50,000,000) and subject to supervision or examination by
federal or state authority. If such corporation or association publishes reports
of conditions at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of conditions so published. In case at any time the Trustee or the
Securities Administrator, as applicable, shall cease to be eligible in
accordance with the provisions of this Section, the Trustee or the Securities
Administrator, as applicable, shall resign immediately in the manner and with
the effect specified in Section 8.7.
SECTION 8.7 RESIGNATION AND REMOVAL OF TRUSTEE AND SECURITIES
ADMINISTRATOR.
The Trustee and the Securities Administrator may at any time resign and
be discharged from the trust hereby created by giving written notice thereof to
the Depositor, to the Master Servicer, to the Securities Administrator (or the
Trustee, if the Securities Administrator resigns) and to the Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee or successor securities administrator by written instrument,
in duplicate, which instrument shall be delivered to the resigning Trustee or
Securities Administrator, as applicable, and to the successor trustee or
successor securities administrator, as applicable. A copy of such instrument
shall be delivered to the Certificateholders, the Trustee, the Securities
Administrator and the Master Servicer by the Depositor. If no successor trustee
or successor securities administrator shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator, as the case may
be, may, at the expense of the Trust Fund, petition any court of competent
jurisdiction for the appointment of a successor trustee, successor securities
administrator, Trustee or Securities Administrator, as applicable.
If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 8.6 and shall fail
to resign after written request
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therefor by the Depositor, or if at any time the Trustee or the Securities
Administrator shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or the Securities Administrator or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or the Securities Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee or the Securities Administrator, as applicable
and appoint a successor trustee or successor securities administrator, as
applicable, by written instrument, in duplicate, which instrument shall be
delivered to the Trustee or the Securities Administrator so removed and to the
successor trustee or successor securities administrator. A copy of such
instrument shall be delivered to the Certificateholders, the Trustee, the
Securities Administrator and the Master Servicer by the Depositor.
The Holders of Certificates evidencing, in aggregate, not less than 51%
of the Trust Fund may at any time remove the Trustee or the Securities
Administrator and appoint a successor trustee or successor securities
administrator by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, one complete set to the
Trustee or the Securities Administrator so removed and one complete set to the
successor so appointed. A copy of such instrument shall be delivered to the
Certificateholders, the Trustee (in the case of the removal of the Securities
Administrator), the Securities Administrator (in the case of the removal of the
Trustee) and the Master Servicer by the Depositor. All costs and expenses
incurred by the Trustee in connection with its removal without cause hereunder
shall be reimbursed to it by the Trust Fund.
Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor trustee or successor securities
administrator pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or successor
securities administrator, as applicable, as provided in Section 8.8.
Notwithstanding anything to the contrary contained herein, the Master
Servicer and the Securities Administrator shall at all times be the same Person.
SECTION 8.8 SUCCESSOR TRUSTEE OR SECURITIES ADMINISTRATOR.
Any successor trustee or successor securities administrator appointed
as provided in Section 8.7 shall execute, acknowledge and deliver to the
Depositor and its predecessor trustee or predecessor securities administrator an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee or predecessor securities administrator
shall become effective and such successor trustee or successor securities
administrator without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee or securities
administrator herein. The predecessor trustee or predecessor securities
administrator shall deliver to the successor trustee or successor securities
administrator all Loan Documents and related documents and statements to the
extent held by it
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hereunder, as well as all moneys, held by it hereunder, and the Depositor and
the predecessor trustee or predecessor securities administrator shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee or successor securities administrator all such rights, powers, duties
and obligations.
No successor trustee or successor securities administrator shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor trustee or successor securities administrator shall be eligible
under the provisions of Section 8.6 and the appointment of such successor
trustee or successor securities administrator shall not result in a downgrading
of any Class of Certificates by any Rating Agency, as evidenced by a letter from
each Rating Agency.
Upon acceptance of appointment by a successor trustee or successor
securities administrator as provided in this Section, the Depositor shall mail
notice of the succession of such trustee hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee or successor securities administrator, the
successor trustee or successor securities administrator shall cause such notice
to be mailed at the expense of the Depositor.
SECTION 8.9 MERGER OR CONSOLIDATION OF TRUSTEE OR SECURITIES
ADMINISTRATOR.
Any corporation or association into which the Trustee or the Securities
Administrator may be merged or converted or with which it may be consolidated or
any corporation or association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator shall be a
party, or any corporation or association succeeding to the business of the
Trustee or the Securities Administrator shall be the successor of the Trustee or
the Securities Administrator hereunder, provided such corporation or association
shall be eligible under the provisions of Section 8.6, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the REMIC or property securing the same may at the time be located, the
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the REMIC, and to vest in such Person or Persons, in such
capacity, and for the benefit of the Holders of the Certificates, such title to
the REMIC, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the 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 8.6 hereunder and no
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notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.8 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to a defaulting Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the REMIC or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trust conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee, or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or co-trustee.
SECTION 8.11 APPOINTMENT OF OFFICE OR AGENCY.
The Securities Administrator shall appoint an office or agency in the
City of Minneapolis located at Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx
00000, where the Certificates may be surrendered for registration of transfer or
exchange, and presented for final distribution and where notices and demands to
or upon the Securities Administrator in respect of the Certificates and this
Agreement may be served.
SECTION 8.12 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
The Trustee hereby represents and warrants to the Master Servicer, the
Securities Administrator and the Depositor as applicable, as of the Closing
Date, that:
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(i) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York.
(ii) The execution and delivery of this Agreement by it, and
the performance and compliance with the terms of this Agreement by it,
will not violate its articles of incorporation or bylaws or constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) It has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order
or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority,
which violation, in its good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of it to perform
its obligations under this Agreement or its financial condition.
(vi) No litigation is pending or, to the best of its
knowledge, threatened against it, which would prohibit it from entering
into this Agreement or, in its good faith reasonable judgment, is
likely to materially and adversely affect either the ability of it to
perform its obligations under this Agreement or its financial
condition.
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ARTICLE IX
TERMINATION
SECTION 9.1 TERMINATION UPON PURCHASE OR LIQUIDATION OF ALL LOANS.
(a) Subject to Section 9.2, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Securities Administrator and the Trustee (other than the obligations of the
Master Servicer to the Securities Administrator pursuant to Section 8.5 and of
the Master Servicer to pay Compensating Interest to the Securities Administrator
and the Securities Administrator to make payments in respect of the REMIC
Regular Interests or the Classes of Certificates as hereinafter set forth) shall
terminate upon payment to the Certificateholders and the deposit of all amounts
held by or on behalf of the Trustee and required hereunder to be so paid or
deposited on the Distribution Date coinciding with or following the earlier to
occur of (i) the purchase by the Terminator (as defined below) of all Loans and
each REO Property remaining in the REMIC and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the REMIC; PROVIDED, HOWEVER, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The purchase by the Terminator of all Loans and each REO Property
remaining in the REMIC shall be at a price (the "Termination Price") equal to
the sum of (i) the aggregate Purchase Price of all the Loans included in the
REMIC, plus the fair market value of each REO Property, if any, included in the
REMIC, such valuation to be conducted by an appraiser mutually agreed upon by
the Terminator and the Securities Administrator in their reasonable discretion
plus (ii) any amounts due the Servicers and the Master Servicer in respect of
unpaid Servicing Fees, Master Servicing Fees and outstanding Advances and
Servicing Advances.
(b) The Master Servicer shall have the right (the party exercising such
right, the "Terminator"), to purchase all of the Loans and each REO Property
remaining in the REMIC pursuant to clause (i) of the preceding paragraph no
later than the Determination Date in the month immediately preceding the
Distribution Date on which the Certificates will be retired; PROVIDED, HOWEVER,
that the Terminator may elect to purchase all of the Loans and each REO Property
remaining in the REMIC pursuant to clause (i) above only if the aggregate
Scheduled Principal Balance of the Loans and each REO Property remaining in the
Trust Fund at the time of such election is reduced to less than 10% of the
aggregate Scheduled Principal Balance of the Loans as of the Cut-Off Date.
(c) Notice of the liquidation of the Certificates shall be given
promptly by the Securities Administrator by letter to the Certificateholders
mailed (a) in the event such notice is given in connection with the purchase of
the Loans and each REO Property by the Terminator, not earlier than the 15th day
and not later than the 25th day of the month next preceding the month of the
final distribution on the Certificates or (b) otherwise during the month of such
final distribution on or before the Determination Date in such month, in each
case specifying (i) the Distribution Date upon which the Trust Fund will
terminate and the final payment in respect of
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the REMIC Regular Interests or the Certificates will be made upon presentation
and surrender of the related Certificates at the office of the Securities
Administrator therein designated, (ii) the amount of any such final payment,
(iii) that no interest shall accrue in respect of the REMIC Regular Interests or
Certificates from and after the Interest Accrual Period relating to the final
Distribution Date therefor and (iv) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the Securities
Administrator. In the event such notice is given in connection with the purchase
of all of the Loans and each REO Property remaining in the REMIC by the
Terminator, the Terminator shall deliver to the Securities Administrator for
deposit in the Distribution Account not later than the last Business Day of the
month next preceding the month of the final distribution on the Certificates an
amount in immediately available funds equal to the above-described Termination
Price. The Securities Administrator shall remit (a) to the Master Servicer from
such funds deposited in the Distribution Account (i) any amounts which the
Master Servicer notifies it in writing that the Master Servicer would be
permitted to withdraw and retain from the Distribution Account pursuant to
Section 3.24 and (ii) any other amounts otherwise payable by the Securities
Administrator to the Master Servicer from amounts on deposit in the Distribution
Account pursuant to the terms of this Agreement and notified by the Master
Servicer in writing and (b) to the Servicers, any amounts reimbursable to the
Servicers pursuant to the Servicing Agreements, in each case prior to making any
final distributions pursuant to Section 10.1(d) below. Upon certification to the
Trustee and the Securities Administrator by a Servicing Officer of the making of
such final deposit, the Trustee shall promptly release to the Terminator the
Mortgage Files for the remaining Loans, and the Trustee shall execute all
assignments, endorsements and other instruments necessary to effectuate such
transfer in each case without recourse, representation or warranty.
(d) Upon presentation of the Certificates by the Certificateholders on
the final Distribution Date, the Securities Administrator shall distribute to
each Certificateholder so presenting and surrendering its Certificates the
amount otherwise distributable on such Distribution Date in accordance with
Section 4.1 in respect of the Certificates so presented and surrendered. Any
funds not distributed to any Holder or Holders of Certificates being retired on
such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held in trust
and credited to the account of the appropriate non-tendering Holder or Holders.
If any Certificates as to which notice has been given pursuant to this Section
9.1 shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Securities Administrator shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall, directly or through an agent, mail a final notice to the
remaining non-tendering Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the funds in trust and of
contacting such Certificateholders shall be paid out of the assets remaining in
the trust funds. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Securities Administrator
shall pay to the Depositor all such amounts, and all rights of non-tendering
Certificateholders in or to
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such amounts shall thereupon cease. No interest shall accrue or be payable to
any Certificateholder on any amount held in trust by the Securities
Administrator as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section 9.1.
Any such amounts held in trust by the Securities Administrator shall be held in
an Eligible Account and the Securities Administrator may direct any depository
institution maintaining such account to invest the funds in one or more Eligible
Investments. All income and gain realized from the investment of funds deposited
in such accounts held in trust by the Securities Administrator shall be for the
benefit of the Securities Administrator; PROVIDED, HOWEVER, that the Securities
Administrator shall deposit in such account the amount of any loss of principal
incurred in respect of any such Eligible Investment made with funds in such
accounts immediately upon the realization of such loss.
Immediately following the deposit of funds in trust hereunder
in respect of the Certificates, the Trust Fund shall terminate.
SECTION 9.2 ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event that the Terminator purchases all the Loans and each
REO Property or the final payment on or other liquidation of the last Loan or
REO Property remaining in the REMIC pursuant to Section 9.1, the Trust Fund
shall be terminated in accordance with the following additional requirements:
(i) The Securities Administrator shall specify the first day
in the 90-day liquidation period in a statement attached to each the
REMIC's final Tax Return pursuant to Treasury regulation Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder, as
evidenced by an Opinion of Counsel obtained by and at the expense of
the Terminator;
(ii) During such 90-day liquidation period and, at or prior to
the time of making of the final payment on the Certificates, the
Securities Administrator shall sell all of the assets of the REMIC to
the Terminator for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Securities Administrator shall distribute or credit,
or cause to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand in the Trust Fund (other than cash
retained to meet claims), and the Trust Fund shall terminate at that
time.
(b) At the expense of the requesting Terminator (or, if the Trust Fund
is being terminated as a result of the occurrence of the event described in
clause (ii) of the first paragraph of Section 9.1, at the expense of the Trust
Fund), the Terminator shall prepare or cause to be prepared the documentation
required in connection with the adoption of a plan of liquidation of the REMIC
pursuant to this Section 9.2.
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(c) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Securities Administrator to specify the 90-day
liquidation period for the REMIC, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
REMIC PROVISIONS
SECTION 10.1 REMIC ADMINISTRATION.
(a) The Trustee shall elect to treat the REMIC under the Code and, if
necessary, under applicable state law and as instructed by the Securities
Administrator. Each such election shall be made by the Securities Administrator
on Form 1066 or other appropriate federal tax or information return or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. The Trustee shall not permit
the creation of any "interests" in the REMIC (within the meaning of Section 860G
of the Code) other than the interests represented by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of the
REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Securities Administrator shall be reimbursed for any and all
expenses relating to any tax audit of the Trust Fund (including, but not limited
to, any professional fees or any administrative or judicial proceedings with
respect to the REMIC that involve the Internal Revenue Service or state tax
authorities), including the expense of obtaining any tax related Opinion of
Counsel except as specified herein. The Securities Administrator, as agent for
the REMIC's tax matters person shall (i) act on behalf of the Trust Fund in
relation to any tax matter or controversy involving the REMIC and (ii) represent
the Trust Fund in any administrative or judicial proceeding relating to an
examination or audit by any governmental taxing authority with respect thereto.
The holder of the largest Percentage Interest of each class of Residual
Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of the REMIC created hereunder. By
their acceptance thereof, the holder of the largest Percentage Interest of the
Residual Certificates hereby agrees to irrevocably appoint the Securities
Administrator or an Affiliate as its agent to perform all of the duties of the
tax matters person for the Trust Fund.
(d) The Securities Administrator shall prepare and file and the Trustee
shall sign all of the Tax Returns in respect of the REMIC created hereunder. The
expenses of preparing and filing such returns shall be borne by the Securities
Administrator without any right of reimbursement therefor.
(e) The Securities Administrator shall perform on behalf of the REMIC
all reporting and other tax compliance duties that are the responsibility of the
REMIC under the Code, the REMIC Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, as required by the Code, the REMIC
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Provisions or other such compliance guidance, the Securities Administrator shall
provide (i) to any Transferor of a Residual Certificate such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Person who is not a Permitted Transferee upon receipt of
additional reasonable compensation, (ii) to the Certificateholders such
information or reports as are required by the Code or the REMIC Provisions
including reports relating to interest, original issue discount and market
discount or Non-Discount (using the Prepayment Assumption as required) and (iii)
to the Internal Revenue Service the name, title, address and telephone number of
the person who shall serve as the representative of the REMIC. The Depositor
shall provide or cause to be provided to the Securities Administrator, within
ten (10) days after the Closing Date, all information or data that the
Securities Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flow of
the Certificates.
(f) To the extent in the control of the Trustee or the Securities
Administrator, each such Person (i) shall take such action and shall cause the
REMIC created hereunder to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions, (ii) shall
not take any action, cause the Trust Fund to take any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if taken
or not taken, as the case may be, could (A) endanger the status of the REMIC as
a REMIC or (B) result in the imposition of a tax upon the Trust Fund (including
but not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless such action or inaction is permitted under this Agreement or the Trustee
and the Securities Administrator have received an Opinion of Counsel, addressed
to them (at the expense of the party seeking to take such action but in no event
at the expense of the Trustee or the Securities Administrator) to the effect
that the contemplated action will not, with respect to the REMIC, endanger such
status or result in the imposition of such a tax, nor (iii) shall the Securities
Administrator take or fail to take any action (whether or not authorized
hereunder) as to which the Trustee has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action; provided that the Securities Administrator
may conclusively rely on such Opinion of Counsel and shall incur no liability
for its action or failure to act in accordance with such Opinion of Counsel. In
addition, prior to taking any action with respect to the REMIC or the respective
assets of each, or causing the REMIC to take any action, which is not
contemplated under the terms of this Agreement, the Securities Administrator
shall consult with the Trustee or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect to
the REMIC, and the Securities Administrator shall not take any such action or
cause the REMIC to take any such action as to which the Trustee has advised it
in writing that an Adverse REMIC Event could occur. The Trustee may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not permitted by this Agreement, but in no
event shall such cost be an expense of the Trustee.
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(g) In the event that any tax is imposed on "prohibited transactions"
of the REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
the "net income from foreclosure property" of the REMIC as defined in Section
860G(c) of the Code, on any contributions to the REMIC after the Startup Day
therefor pursuant to Section 860G(d) of the Code, or any other tax is imposed by
the Code or any applicable provisions of state or local tax laws, such tax shall
be charged (i) to the Trustee pursuant to Section 10.3 hereof, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article X, (ii) to the Securities Administrator pursuant to Section
10.3 hereof, if such tax arises out of or results from a breach by the
Securities Administrator of any of its obligations under this Article X, (iii)
to the Master Servicer pursuant to Section 10.3 hereof, if such tax arises out
of or results from a breach by the Master Servicer of any of its obligations
under Article III or under this Article X, or (iv) against amounts on deposit in
the Distribution Account and shall be paid by withdrawal therefrom.
(h) The Trustee and the Securities Administrator shall, for federal
income tax purposes, maintain books and records with respect to the REMIC on a
calendar year and on an accrual basis.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the REMIC other than in connection with any
Substitute Loan delivered in accordance with Section 2.3 unless it shall have
received an Opinion of Counsel addressed to it to the effect that the inclusion
of such assets in the Trust Fund will not cause the REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding or subject the REMIC
to any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Trustee nor the Securities Administrator shall
knowingly enter into any arrangement by which the REMIC will receive a fee or
other compensation for services nor permit the REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) The Securities Administrator shall apply for an employer
identification number with the Internal Revenue Service via a Form SS-4 or other
comparable method for the REMIC. In connection with the foregoing, the
Securities Administrator shall provide the name and address of the person who
can be contacted to obtain information required to be reported to the holders of
Regular Interests in the REMIC as required by IRS Form 8811.
SECTION 10.2 PROHIBITED TRANSACTIONS AND ACTIVITIES.
None of the Depositor, the Securities Administrator, the Master
Servicer or the Trustee shall sell, dispose of or substitute for any of the
Loans (except in connection with (i) the foreclosure of a Loan, including but
not limited to, the acquisition or sale of a Mortgaged Property acquired by deed
in lieu of foreclosure, (ii) the bankruptcy of the REMIC, (iii) the termination
of the REMIC pursuant to Article IX of this Agreement, (iv) a substitution
pursuant
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to Article II of this Agreement or (v) a purchase of Loans pursuant to Article
II of this Agreement), nor acquire any assets for the REMIC (other than REO
Property acquired in respect of a defaulted Loan), nor sell or dispose of any
investments in the Distribution Account for gain, nor accept any contributions
to the REMIC after the Closing Date (other than a Substitute Loan delivered in
accordance with Section 2.3), unless it has received an Opinion of Counsel,
addressed to the Trustee and the Trustee (at the expense of the party seeking to
cause such sale, disposition, substitution, acquisition or contribution but in
no event at the expense of the Trustee) that such sale, disposition,
substitution, acquisition or contribution will not (a) affect adversely the
status of the REMIC as a REMIC or (b) cause the REMIC to be subject to a tax on
"prohibited transactions" or "contributions" pursuant to the REMIC Provisions.
SECTION 10.3 INDEMNIFICATION.
(a) The Trustee agrees to be liable for any taxes and costs incurred by
the Trust Fund, the Depositor, the Securities Administrator or the Master
Servicer including, without limitation, any reasonable attorneys fees imposed on
or incurred by the Trust Fund, the Depositor, the Securities Administrator or
the Master Servicer as a result of the Trustee's failure to perform its
covenants set forth in this Article X in accordance with the standard of care of
the Trustee set forth in this Agreement.
(b) The Master Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Depositor or the Trustee, as a result of the Master Servicer's failure to
perform its covenants set forth in Article III in accordance with the standard
of care of the Master Servicer set forth in this Agreement.
(c) The Securities Administrator agrees to be liable for any taxes and
costs incurred by the Trust Fund, the Depositor or the Trustee including,
without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Trustee as a result of the Securities
Administrator's failure to perform its covenants set forth in this Article X in
accordance with the standard of care of the Securities Administrator set forth
in this Agreement.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 AMENDMENT. This Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Securities Administrator and the
Trustee, without the consent of any of the Certificateholders, (a) to cure any
ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Agreement, (b) to
modify, eliminate or add to any provisions to such extent as shall be necessary
to maintain the qualification of the Trust Fund as a REMIC at all times that any
Class A Certificates or Subordinate Certificates are outstanding, provided, that
such action shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee and delivered to the Trustee, adversely affect in any material respect
the interests of any Certificateholder. No amendment shall be deemed to
adversely affect in any material respect the interests of any Certificateholder
who shall have consented thereto, and no Opinion of Counsel shall be required to
address the effect of any such amendment on any such consenting
Certificateholder.
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Securities Administrator and the Trustee with the
consent of the Holders of Certificates evidencing, in aggregate, not less than
66-2/3% of the Trust Fund for the purpose of adding any provisions or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (a) reduce in any manner the amount of, or
delay the timing of, payments received on Loans which are required to be
distributed in respect of any Certificate without the consent of the Holder of
such Certificate; (b) adversely affect in any material respect the interest of
the Holders of the Class A Certificates in a manner other than as described in
(a) above without the consent of the Holders of Class A Certificates aggregating
not less than 66-2/3% of the aggregate Percentage Interest evidenced by all
Class A Certificates; (c) adversely affect in any material respect the interest
of the Holders of the Subordinate Certificates in a manner other than as
described in clause (a) above without the consent of the Holders of Subordinate
Certificates aggregating not less than 66-2/3% of the aggregate Percentage
Interest evidenced by all Subordinate Certificates; (d) adversely affect in any
material respect the interest of the Class R Certificateholder without the
consent of the Holder of the Class R Certificate; (e) change in any material
respect the rights and obligations of the Master Servicer or successor Master
Servicer under this Agreement without the prior written consent of such party;
or (f) reduce the aforesaid percentage of the Certificates the Holders of which
are required to consent to any such amendments without the consent of the
Holders of all Certificates then outstanding; provided, that for the purposes of
this Agreement, the Holder of the Class R Certificate shall have no right to
vote at all times that any Class A Certificates or Subordinate Certificates are
outstanding if such amendment relates to the modification, elimination or
addition of any provision necessary to maintain the qualification of the Trust
Fund as a REMIC. Without limiting the generality of the foregoing, any amendment
to this Agreement required in connection with the compliance with or the
clarification of any reporting obligations described in
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Section 3.18 hereof shall not require the consent of any Certificateholder or
any Opinion of Counsel or Rating Agency confirmation.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel addressed to it to the effect that such amendment
will not cause the REMIC of the Trust Fund to fail to qualify as a REMIC at any
time that Regular Certificates are outstanding.
As soon as practicable after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Certificateholder and Rating Agency.
It shall not be necessary for the consent of the Certificateholders
under this Section 11.1 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel addressed to it
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement.
SECTION 11.2 RECORDATION OF AGREEMENT; COUNTERPARTS. To the extent
permitted by applicable law, this Agreement (or an abstract hereof, if
acceptable by the applicable recording office) is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Depositor at the expense of
the Certificateholders, but only after the Depositor has delivered to the
Trustee an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of the Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
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Except as otherwise expressly provided herein no Certificateholder,
solely by virtue of its status as Certificateholder, shall have any right to
vote or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association, nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless all of the
Holders of Certificates evidencing, in aggregate, not less than 25% of the Trust
Fund shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for
60 days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.4 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES OTHER THAN 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.5 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified or registered mail, return receipt requested
(a) in the case of the Depositor, to 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Deutsche Alt-A Securities, Inc., Alternative Loan Trust, Series
2003-1, (telecopy number:(000) 000-0000, or such other address or telecopy
number as may hereafter be furnished to the Master Servicer and the Trustee in
writing by the Depositor, (b) in the case of the Master Servicer and the
Securities Administrator, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 and for
overnight delivery to 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Deutsche Alt-A Securities, Inc., 2003-1 (telecopy number: (410)
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715-2380), or such other address or telecopy number as may hereafter be
furnished to the Trustee and the Depositor in writing by the Master Servicer or
the Securities Administrator, and (c) in the case of the Trustee, at the
Corporate Trust Office or such other address or telecopy number as the Trustee
may hereafter be furnish to the Master Servicer and the Depositor in writing by
the Trustee. Any notice required or permitted to be given to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice. A copy of any notice required to be telecopied hereunder also shall be
mailed to the appropriate party in the manner set forth above.
SECTION 11.6 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.7 NOTICE TO RATING AGENCIES.
The Trustee shall use its best efforts promptly to provide notice to
the Rating Agencies with respect to each of the following of which it has actual
knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Master Servicer Event of
Default that has not been cured or waived;
3. The resignation or termination of the Master Servicer
or the Trustee;
4. The repurchase or substitution of Loans pursuant to
or as contemplated by Section 2.3;
5. The final payment to the Holders of any Class of
Certificates;
6. Any change in the location of the Distribution
Account; and
7. Any event that would result in the inability of the
Trustee to make advances regarding delinquent Loans
pursuant to Section 7.2.
The Master Servicer shall make available to each Rating Agency
copies of the following:
1. Each annual statement as to compliance described in Section
3.16; and
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2. Each annual independent public accountants' servicing
report described in Section 3.17.
Any such notice pursuant to this Section 11.7 shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
to Standard & Poor's, a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and to Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the Rating
Agencies may designate in writing to the parties hereto.
SECTION 11.8 ARTICLE AND SECTION REFERENCES.
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
SECTION 11.9 GRANT OF SECURITY INTEREST.
It is the express intent of the parties hereto that the conveyance of
the Loans by the Depositor to the Trustee, on behalf of the Trust and for the
benefit of the Certificateholders, be, and be construed as, a sale of the Loans
by the Depositor and not a pledge of the Loans to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
aforementioned intent of the parties, the Loans are held to be property of the
Depositor, then, (a) it is the express intent of the parties that such
conveyance be deemed a pledge of the Loans by the Depositor to the Trustee, on
behalf of the Trust and for the benefit of the Certificateholders, to secure a
debt or other obligation of the Depositor and (b)(1) this Agreement shall also
be deemed to be a security agreement within the meaning of Articles 8 and 9 of
the Uniform Commercial Code as in effect from time to time in the State of New
York; (2) the conveyance provided for in Section 2.1 hereof shall be deemed to
be a grant by the Depositor to the Trustee, on behalf of the Trust and for the
benefit of the Certificateholders, of a security interest in all of the
Depositor's right, title and interest in and to the Loans and all amounts
payable to the holders of the Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Distribution Account, whether in the form of cash, instruments,
securities or other property; (3) the obligations secured by such security
agreement shall be deemed to be all of the Depositor's obligations under this
Agreement, including the obligation to provide to the Certificateholders the
benefits of this Agreement relating to the Loans and the Trust Fund; and (4)
notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Accordingly, the
Depositor hereby grants to the Trustee, on behalf of the Trust and for the
benefit of the Certificateholders, a security interest in the Loans and all
other property described in clause (2) of the preceding sentence, for the
purpose of securing to the Trustee the
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performance by the Depositor of the obligations described in clause (3) of the
preceding sentence. Notwithstanding the foregoing, the parties hereto intend the
conveyance pursuant to Section 2.1 to be a true, absolute and unconditional sale
of the Loans and assets constituting the Trust Fund by the Depositor to the
Trustee, on behalf of the Trust and for the benefit of the Certificateholders.
SECTION 11.10 THIRD PARTY BENEFICIARIES.
For purposes of Sections 2.5, 3.1, 3.5, 3.7, 3.15(c), 3.18, 3.22 and
6.3, the Servicers shall be third party beneficiaries of this Agreement and each
Servicer shall have the right to enforce such provisions. Further, it is
understood and agreed that the obligations of the Servicers are set forth in
their entirety in the related Servicing Agreement and the Servicers are not
bound by the terms hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[ IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized, all as of the day and year
first above written.
DEUTSCHE ALT-A SECURITIES, INC., as Depositor
By
-------------------------------------------
Name:
Its:
By
-------------------------------------------
Name:
Its:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Master Servicer and Securities Administrator
By
-------------------------------------------
Name:
Its:
HSBC Bank USA, not in its individual capacity
but solely as Trustee
By
-------------------------------------------
Name:
Its:
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of August 2003, before me, a notary public in and for
said State, personally appeared _____________________ known to me to be a
_____________________ of Deutsche Alt-A Securities, Inc ., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of August 2003, before me, a notary public in
and for said State, personally appeared _____________________ known to me to be
a _____________________ of Deutsche Alt-A Securities, Inc ., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the __ day of August 2003, before me, a notary public in
and for said State, personally appeared ___________________________ known to me
to be a ____________________ of Xxxxx Fargo Bank Minnesota, National
Association, one of the corporations that executed the within instrument, and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of August 2003, before me, a notary public in
and for said State, personally appeared _______________ known to me to be a
_______________ of HSBC Bank USA, one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS A-[1][2][3] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO,
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
Certificate No.1 Remittance Rate: 5.50%
Class A-[1][2][3] Senior
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
August 1, 2003 $
First Distribution Date: Initial Certificate Principal Balance of this
September 25, 2003 Certificate as of the Cut-off Date:
$___________
Master Servicer:
Xxxxx Fargo Bank Minnesota, National
Association CUSIP: ___________
Final Distribution Date:
September 25, 2033
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-1
evidencing a fractional undivided interest in the distributions
allocable to the Class A-[1][2][3] Certificates with respect to a Trust
Fund consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE ALT-A SECURITIES,
INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Deutsche
Alt-A Securities, Inc., the Master Servicer, the Trustee or the Securities
Administrator referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Deutsche Alt-A Securities, Inc., the
Master Servicer, the Trustee or the Securities Administrator or any of their
affiliates or any other person. None of Deutsche Alt-A Securities, Inc., the
Master Servicer or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Alt-A Securities, Inc. ("DBALT"). The Mortgage Loans were sold by
Deutsche Bank AG New York Branch to DBALT. Xxxxx Fargo Bank Minnesota, National
Association will act as master servicer
A-1-2
of the Mortgage Loans (the "Master Servicer," which term includes any successors
thereto under the Agreement referred to below). The Trust Fund was created
pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement"), among DBALT, as depositor (the "Depositor"),
Xxxxx Fargo Bank Minnesota, National Association, as Master Servicer and
securities administrator (the "Securities Administrator") and HSBC Bank USA, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month
prior to the month in which a Distribution Date (as hereinafter defined) occurs
on the Certificate Principal Balance hereof at a per annum rate equal to the
Remittance Rate set forth above. The Securities Administrator will distribute on
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the calendar month immediately preceding the month of such Distribution Date
(the "Record Date"), an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The last scheduled Distribution Date is the Distribution Date
in September 2033.
Distributions on this Certificate will be made by the
Securities Administrator by wire transfer in immediately available funds to the
account of the Person in whose name the Certificate is registered at the close
of business on the related Record Date or by any other means of payment
acceptable to such Certificateholder. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose and designated in such notice. The
initial Certificate Principal Balance of this Certificate is set forth above.
The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal hereon and any Realized Losses allocable
hereto as described in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
neither the Trustee nor the Securities Administrator is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
A-1-3
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of Certificates affected thereby evidencing not less than 66-2/3% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Securities Administrator upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Securities
Administrator for such purposes, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Percentage Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. The Depositor, the Master Servicer, the
Securities Administrator, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of Depositor, the Master Servicer, the Securities
Administrator, the Trustee or any such agent shall be affected by notice to the
contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the remittance of all funds due under the Agreement, coinciding
with or following the earlier to occur of (i) the maturity or other liquidation
(or Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan or (ii) the optional repurchase by the
party named in the Agreement of all the Mortgage Loans and other assets of the
Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the
A-1-4
Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Securities Administrator by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
A-1-5
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated: August 28, 2003
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class A-[1][2][3] Certificates referred to
in the within-mentioned Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Mortgage Pass- Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: _____________________________________________
Signature by or on behalf of assignor
_____________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS A-PO CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
Certificate No.1
Class A-PO Senior
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
August 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
September 25, 2003 Certificate as of the Cut-off Date:
$___________
Master Servicer:
Xxxxx Fargo Bank Minnesota, National
Association CUSIP: ___________
Final Distribution Date:
September 25, 2033
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-1
evidencing a fractional undivided interest in the distributions
allocable to the Class A-PO Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE ALT-A SECURITIES,
INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Deutsche
Alt-A Securities, Inc., the Master Servicer, the Trustee or the Securities
Administrator referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Deutsche Alt-A Securities, Inc., the
Master Servicer, the Trustee or the Securities Administrator or any of their
affiliates or any other person. None of Deutsche Alt-A Securities, Inc., the
Master Servicer or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Alt-A Securities, Inc. ("DBALT"). The Mortgage Loans were sold by
Deutsche Bank AG New York Branch to DBALT. Xxxxx Fargo Bank Minnesota, National
Association will act as master servicer
A-2-2
of the Mortgage Loans (the "Master Servicer," which term includes any successors
thereto under the Agreement referred to below). The Trust Fund was created
pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement"), among DBALT, as depositor (the "Depositor"),
Xxxxx Fargo Bank Minnesota, National Association, as Master Servicer and
securities administrator (the "Securities Administrator") and HSBC Bank USA as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
The Securities Administrator will distribute on the 25th day
of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the calendar
month preceding the month of such Distribution Date (the "Record Date"), an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount of principal required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The last
scheduled Distribution Date is the Distribution Date in September 2033.
Distributions on this Certificate will be made by the
Securities Administrator by wire transfer in immediately available funds to the
account of the Person in whose name the Certificate is registered at the close
of business on the related Record Date or by any other means of payment
acceptable to such Certificateholder. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose and designated in such notice. The
initial Certificate Principal Balance of this Certificate is set forth above.
The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal hereon and any Realized Losses allocable
hereto as described in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
neither the Securities Administrator nor the Trustee is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
A-2-3
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of Certificates affected thereby evidencing not less than 66-2/3% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Securities Administrator upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Securities
Administrator for such purposes, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Percentage Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. The Depositor, the Master Servicer, the
Securities Administrator, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Securities
Administrator, the Trustee or any such agent shall be affected by notice to the
contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the remittance of all funds due under the Agreement, coinciding
with or following the earlier to occur of (i) the maturity or other liquidation
(or Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan or (ii) the optional repurchase by the
party named in the Agreement of all the Mortgage Loans and other assets of the
Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the
A-2-4
Agreement continue beyond the expiration of 21 years after the death of certain
persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Securities Administrator by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
A-2-5
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated: August 28, 2003
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class A-PO Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
Dated: _____________________________________________
Signature by or on behalf of assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS A-X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
Certificate No.1 Remittance Rate: 5.50%
Class A-X Senior
Date of Pooling and Servicing Agreement and Aggregate Initial Notional Amount of this
Cut-off Date: Certificate as of the Cut-off Date:
August 1, 2003 $___________
First Distribution Date: Initial Notional Amount of this Certificate as
September 25, 2003 of the Cut-off Date:
$___________
Master Servicer:
Xxxxx Fargo Bank Minnesota, National
Association
Final Distribution Date:
September 25, 2033 CUSIP: ___________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-1
evidencing a fractional undivided interest in the distributions
allocable to the Class A-X Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE ALT-A SECURITIES,
INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Deutsche
Alt-A Securities, Inc., the Master Servicer, the Trustee or the Securities
Administrator referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Deutsche Alt-A Securities, Inc., the
Master Servicer, the Trustee or the Securities Administrator or any of their
affiliates or any other person. None of Deutsche Alt-A Securities, Inc., the
Master Servicer or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Alt-A Securities, Inc. ("DBALT"). The Mortgage Loans were sold by
Deutsche Bank AG New York Branch to DBALT. Xxxxx Fargo Bank Minnesota, National
Association will act as master servicer
A-3-2
of the Mortgage Loans (the "Master Servicer," which term includes any successors
thereto under the Agreement referred to below). The Trust Fund was created
pursuant to the Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement"), among DBALT, as depositor (the "Depositor"),
Xxxxx Fargo Bank Minnesota, National Association, as Master Servicer and
securities administrator (the "Securities Administrator") and HSBC Bank USA as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month
prior to the month in which a Distribution Date (as hereinafter defined) occurs
on the Class A-X Notional Amount hereof at a per annum rate equal to the
Remittance Rate set forth above. The Securities Administrator will distribute on
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the calendar month preceding the month of such Distribution Date (the "Record
Date"), an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount of interest required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The last
scheduled Distribution Date is the Distribution Date in September 2033.
Distributions on this Certificate will be made by the
Securities Administrator by wire transfer in immediately available funds to the
account of the Person in whose name the Certificate is registered at the close
of business on the related Record Date or by any other means of payment
acceptable to such Certificateholder. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose and designated in such notice. The
Class A-X Certificates have no Certificate Principal Balance. The Initial
Certificate Notional Balance of this Certificate is set forth above.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
neither the the Securities Administrator nor the Trustee is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
A-3-3
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of Certificates affected thereby evidencing not less than 66-2/3% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Securities Administrator upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Securities
Administrator for such purposes, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Percentage Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. The Depositor, the Master Servicer, the
Securities Administrator, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of Depositor, the Master Servicer, the Securities
Administrator, the Trustee or any such agent shall be affected by notice to the
contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the remittance of all funds due under the Agreement, coinciding
with or following the earlier to occur of (i) the maturity or other liquidation
(or Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan or (ii) the optional repurchase by the
party named in the Agreement of all the Mortgage Loans and other assets of the
Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the
A-3-4
Agreement continue beyond the expiration of 21 years after the death of certain
persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Securities Administrator by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
A-3-5
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated: August 28, 2003
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class A-X Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
Dated: _____________________________________________
Signature by or on behalf of assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS [M][B-1][B-2] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A CERTIFICATES [AND][,][ THE CLASS M CERTIFICATES, [AND] THE CLASS B-1
CERTIFICATES], AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE
REPRESENTATIONS SET FORTH IN SECTION 5.3(E) OF THE AGREEMENT REFERRED TO HEREIN.
Certificate No.1 Remittance Rate: 5.50%
Class [M][B-1][B-2] Subordinate
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
August 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
September 25, 2003 Certificate as of the Cut-off Date:
$___________
Master Servicer:
Xxxxx Fargo Bank Minnesota, National
Association CUSIP: ___________
Final Distribution Date:
September 25, 2033
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-1
evidencing a fractional undivided interest in the distributions
allocable to the Class [M][B-1][B-2] Certificates with respect to a
Trust Fund consisting primarily of a pool of conventional one- to four-
family fixed interest rate mortgage loans sold by DEUTSCHE ALT-A
SECURITIES, INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Deutsche
Alt-A Securities, Inc., the Master Servicer, the Trustee or the Securities
Administrator referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Deutsche Alt-A Securities, Inc., the
Master Servicer, the Trustee or the Securities Administrator or any of their
affiliates or any other person. None of Deutsche Alt-A Securities, Inc., the
Master Servicer or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Alt-A Securities, Inc. ("DBALT"). The Mortgage Loans were sold by
Deutsche Bank AG New York Branch to DBALT. Xxxxx Fargo Bank Minnesota, National
Association will act as master servicer of the Mortgage Loans (the "Master
Servicer," which term includes any successors thereto under the Agreement
referred to
A-4-2
below). The Trust Fund was created pursuant to the Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
DBALT, as depositor (the "Depositor"), Xxxxx Fargo Bank Minnesota, National
Association, as Master Servicer and securities administrator (the "Securities
Administrator") and HSBC Bank USA as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein shall have the meaning
ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month
prior to the month in which a Distribution Date (as hereinafter defined) occurs
on the Certificate Principal Balance hereof at a per annum rate equal to the
Remittance Rate set forth above. The Securities Administrator will distribute on
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the calendar month preceding the month of such Distribution Date (the "Record
Date"), an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount (of interest and principal, if any) required to
be distributed to the Holders of Certificates of the same Class as this
Certificate. The last scheduled Distribution Date is the Distribution Date in
September 2033.
Distributions on this Certificate will be made by the
Securities Administrator by wire transfer in immediately available funds to the
account of the Person in whose name the Certificate is registered at the close
of business on the related Record Date or by any other means of payment
acceptable to such Certificateholder. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose and designated in such notice. The
initial Certificate Principal Balance of this Certificate is set forth above.
The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal hereon and any Realized Losses allocable
hereto as described in the Agreement.
Any transferee of this certificate shall be deemed to make the
representations set forth in section 5.3(e) of the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
neither the Trustee nor the Securities Administrator is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
A-4-3
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of Certificates affected thereby evidencing not less than 66-2/3% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Securities Administrator upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Securities
Administrator for such purposes, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Percentage Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. The Depositor, the Master Servicer, the
Trustee, the Securities Administrator and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the
contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the remittance of all funds due under the Agreement, coinciding
with or following the earlier to occur of (i) the maturity or other liquidation
(or Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan or (ii) the optional repurchase by the
party named in the Agreement of all the Mortgage Loans and other assets of the
Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less
A-4-4
than the percentage of the aggregate Stated Principal Balance specified in the
Agreement of the Mortgage Loans at the Cut-off Date. The exercise of such right
will effect the early retirement of the Certificates. In no event, however, will
the Trust Fund created by the Agreement continue beyond the expiration of 21
years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Securities Administrator by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
A-4-5
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated: August 28, 2003
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [M][B-1][B-2] Certificates referred
to in the within-mentioned Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
Dated: _____________________________________________
Signature by or on behalf of assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS B-[3][4][5] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS B-1 CERTIFICATES
[AND][,] THE CLASS B-2 CERTIFICATES, [[AND] THE CLASS B- [3][4][5] CERTIFICATES]
AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH
ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY
THE SECURITIES ADMINISTRATOR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN
THE AGREEMENT AND (B) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE SECURITIES ADMINISTRATOR THAT SUCH REOFFER, RESALE,
PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL
A-5-1
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.3(E)
OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER,
THE TRUSTEE, THE DEPOSITOR AND THE SECURITIES ADMINISTRATOR THAT THE PURCHASE OF
THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE OR THE SECURITIES ADMINISTRATOR TO
ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
A-5-2
Certificate No.1 Remittance Rate: 5.50%
Class B-_ Subordinate
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
August 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
September 25, 2003 Certificate as of the Cut-off Date:
$___________
Master Servicer:
Xxxxx Fargo Bank Minnesota, National
Association CUSIP: ___________
Final Distribution Date:
September 25, 2033
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-1
evidencing a fractional undivided interest in the distributions
allocable to the Class B-[3][4][5] Certificates with respect to a Trust
Fund consisting primarily of a pool of conventional one- to four-
family fixed interest rate mortgage loans sold by DEUTSCHE ALT-A
SECURITIES, INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Deutsche
Alt-A Securities, Inc., the Master Servicer, the Trustee or the Securities
Administrator referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Deutsche Alt-A Securities, Inc., the
Master Servicer, the Trustee or the Securities Administrator or any of their
affiliates or any other person. None of Deutsche Alt-A Securities, Inc., the
Master Servicer or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that ___________ is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Alt-A Securities, Inc. ("DBALT"). The Mortgage Loans were sold by
Deutsche Bank AG New York Branch to DBALT. Xxxxx Fargo Bank Minnesota, National
Association will act as master servicer of the Mortgage Loans
A-5-3
(the "Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust Fund was created pursuant to the Pooling
and Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among DBALT, as depositor (the "Depositor"), Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer and securities administrator
(the "Securities Administrator") and HSBC Bank USA as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein shall have the
meaning ascribed to them in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month
prior to the month in which a Distribution Date (as hereinafter defined) occurs
on the Certificate Principal Balance hereof at a per annum rate equal to the
Remittance Rate set forth above. The Securities Administrator will distribute on
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if such
last day is not a Business Day, the Business Day immediately preceding such last
day) of the calendar month immediately preceding the month in which such
Distribution Date occurs (the "Record Date"), an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount (of
interest and principal, if any) required to be distributed to the Holders of
Certificates of the same Class as this Certificate. The last scheduled
Distribution Date is the Distribution Date in September 2033.
Distributions on this Certificate will be made by the
Securities Administrator by wire transfer in immediately available funds to the
account of the Person in whose name the Certificate is registered at the close
of business on the related Record Date or by any other means of payment
acceptable to such Certificateholder. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose and designated in such notice. The
initial Certificate Principal Balance of this Certificate is set forth above.
The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal hereon and any Realized Losses allocable
hereto as described in the Agreement.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon Rule
144A under the 1933 Act, written certifications from the Holder of the
Certificate desiring to effect the transfer, and from such Holder's prospective
transferee, substantially in the forms attached to the Agreement as Exhibit E
and either Exhibit F or Exhibit G, as applicable, and (ii) in all other cases,
an Opinion of Counsel satisfactory to it that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Trustee,
A-5-4
the Securities Administrator or the Master Servicer in their respective
capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's
prospective transferee upon which such Opinion of Counsel is based. None of the
Depositor, the Securities Administrator or the Trustee is obligated to register
or qualify the Class of Certificates specified on the face hereof under the 1933
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Securities
Administrator, the Depositor, the Seller and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Class B-[3][4][5] Certificate will be made
unless the Depositor, the Trustee and the Securities Administrator have received
either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Depositor, the Trustee, the Securities Administrator and the
Master Servicer stating, among other things, that the transferee's acquisition
of a Class B-[3][4][5] Certificate is permissible under applicable law, will not
constitute or result in a non-exempt prohibited transaction under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code (the "Code") and will not subject the
Depositor, the Trustee, the Securities Administrator or the Master Servicer to
any obligation or liability in addition to those undertaken in the Agreement or
(ii) a representation letter, in the form as described by the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of 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 Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
neither the Trustee nor the Securities Administrator is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of Certificates affected thereby evidencing not less than 66-2/3% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The
A-5-5
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Securities Administrator upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Securities
Administrator for such purposes, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Percentage Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Securities Administrator, the
Trustee and any agent of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Securities Administrator, the Trustee or any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the remittance of all funds due under the Agreement, coinciding
with or following the earlier to occur of (i) the maturity or other liquidation
(or Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan or (ii) the optional repurchase by the
party named in the Agreement of all the Mortgage Loans and other assets of the
Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Securities Administrator by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
A-5-6
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated: August 28, 2003
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class B-[3][4][5] Certificates referred to
in the within-mentioned Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
Dated: _____________________________________________
Signature by or on behalf of assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A
NON-UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.3(E)
OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER,
THE TRUSTEE, THE DEPOSITOR AND THE SECURITIES ADMINISTRATOR THAT THE PURCHASE OF
THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE, THE DEPOSITOR OR
THE SECURITIES ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
MASTER SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED
STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED
STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO
TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(A)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(A) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION
A-6-1
OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING
TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A
DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
A-6-2
Certificate No.1 Remittance Rate: 5.50%
Class R Percentage Interest: 100%
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
August 1, 2003 $100.00
First Distribution Date: Initial Certificate Principal Balance of this
September 25, 2003 Certificate as of the Cut-off Date: $100.00
Master Servicer:
Xxxxx Fargo Bank Minnesota, National
Association CUSIP: ___________
Final Distribution Date:
September 25, 2033
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-1
evidencing a fractional undivided interest in the distributions
allocable to the Class R Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE ALT-A SECURITIES,
INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Deutsche
Alt-A Securities, Inc., the Master Servicer, the Trustee or the Securities
Administrator referred to below or any of their affiliates or any other person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental entity or by Deutsche Alt-A Securities, Inc., the
Master Servicer, the Trustee or the Securities Administrator or any of their
affiliates or any other person. None of Deutsche Alt-A Securities, Inc., the
Master Servicer or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments on
the Certificates.
This certifies that __________ is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Alt-A Securities, Inc. ("DBALT"). The Mortgage Loans were sold by
Deutsche Bank AG New York Branch to DBALT. Xxxxx Fargo Bank Minnesota, National
Association will act as master servicer of the Mortgage Loans (the "Master
Servicer," which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the
A-6-3
Cut-off Date specified above (the "Agreement"), among DBALT, as depositor (the
"Depositor"), Xxxxx Fargo Bank Minnesota, National Association, as Master
Servicer and securities administrator (the "Securities Administrator") and HSBC
Bank USA as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Each Holder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer of
any Ownership Interest in this Certificate will be conditioned upon the delivery
to the Securities Administrator of, among other things, an affidavit to the
effect that it is a United States Person and Permitted Transferee, (iii) any
attempted or purported transfer of any Ownership Interest in this Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee, and (iv) if any person other than a United
States Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have the
right, in its sole discretion and without notice to the Holder of this
Certificate, to sell this Certificate to a purchaser selected by the Depositor,
which purchaser may be the Depositor, or any affiliate of the Depositor, on such
terms and conditions as the Depositor may choose.
The Securities Administrator will distribute on the 25th day
of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the calendar
month immediately preceding the month in which such Distribution Date occurs
(the "Record Date"), an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amounts required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The last
scheduled Distribution Date is the Distribution Date in September 2033.
Distributions on this Certificate will be made by the
Securities Administrator by wire transfer in immediately available funds to the
account of the Person in whose name the Certificate is registered at the close
of business on the related Record Date or by any other means of payment
acceptable to such Certificateholder. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose and designated in such notice.
No transfer of this Class R Certificate will be made unless
the Depositor, the Trustee and the Securities Administrator have received either
(i) an opinion of counsel acceptable to and in form and substance satisfactory
to the Depositor, the Trustee, the Securities Administrator and the Master
Servicer stating, among other things, that the transferee's acquisition of a
Class R Certificate is permissible under applicable law, will not constitute or
result in a non-exempt prohibited transaction under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")
A-6-4
or Section 4975 of the Internal Revenue Code (the "Code") and will not subject
the Depositor, the Trustee, the Securities Administrator or the Master Servicer
to any obligation or liability in addition to those undertaken in the Agreement
or (ii) a representation letter, in the form as described by the Agreement,
stating that the transferee is not an employee benefit or other plan subject to
the prohibited transaction provisions of ERISA or Section 4975 of 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 Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
neither the Securities Administrator nor the Trustee is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of Certificates affected thereby evidencing not less than 66-2/3% of the
Voting Rights. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Securities Administrator upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Securities
Administrator for such purposes, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Percentage Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
A-6-5
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. The Depositor, the Master Servicer, the
Securities Administrator, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of Depositor, the Master Servicer, the Securities
Administrator, the Trustee or any such agent shall be affected by notice to the
contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the remittance of all funds due under the Agreement, coinciding
with or following the earlier to occur of (i) the maturity or other liquidation
(or Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan or (ii) the optional repurchase by the
party named in the Agreement of all the Mortgage Loans and other assets of the
Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Securities Administrator by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
A-6-6
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated: August 28, 2003
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Securities Administrator
By:_____________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
Dated: _____________________________________________
Signature by or on behalf of assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT B
LOAN SCHEDULE
-------------
EXHIBIT C
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section
860E(e)(4) of the Internal Revenue
Code of 1986, as amended, and for
other purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he/she is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _____] [the United States], on behalf of which
he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Deutsche Alt-A Securities, Inc.
Alternative Loan Trust, Series 2003-1 Mortgage Pass-Through Certificates, Class
R Certificates (the "Residual Certificates") for the account of a disqualified
organization; (iii) it consents to any amendment of the Pooling and Servicing
Agreement that shall be deemed necessary by Deutsche Alt-A Securities, Inc.
(upon advice of counsel) to constitute a reasonable arrangement to ensure that
the Residual Certificates will not be owned directly or indirectly by a
disqualified organization; and (iv) it will not transfer such Residual
Certificates unless (a) it has received from the transferee an affidavit in
substantially the same form as this affidavit containing these same four
representations and (b) as of the time of the transfer, it does not have actual
knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) a corporation or partnership (including an entity
treated as a corporation or partnership for 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), provided that no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are United States Persons, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
______________________.
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By: ------------------------------------------
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of
distributions]
Address of Investor for receipt of tax
information:
C-2
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Investor, and acknowledged to me that he/she
executed the same as his/her free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of _________, 20___.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ___ day of ___________________, 20___.
C-3
EXHIBIT D
FORM OF TRANSFEROR CERTIFICATE
______________,200___
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities Trust 2003-1
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Alt-A Securities, Inc., 0000-0
Xxxxxxxx Alt-A Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities, Inc.
Alternative Loan Trust, Series 2003-1
Re: Deutsche Alt-A Securities, Inc. Alternative Loan Trust,
Series 2003-1, Class Mortgage Pass-Through Certificates
-------------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of Series
2003-1 Mortgage Pass-Through Certificates, Class _____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of Xxxxxx 0, 0000 xxxxx Xxxxxxxx Xxx-X
Securities, Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank Minnesota,
National Association, as master servicer and securities administrator, and HSBC
Bank USA, as trustee (the "Trustee"). The Seller hereby certifies, represents
and warrants to, a covenants with, the Depositor, the Trustee and the Securities
Administrator that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933 (the "Act"), that would render the disposition of any
Certificate 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
Certificate. The Seller has not and will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
Very truly yours,
________________________________
(Seller)
By:_____________________________
Name:___________________________
Title:__________________________
D-2
EXHIBIT E
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
___________,200__
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities Trust 2003-1
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Alt-A Securities, Inc., 0000-0
Xxxxxxxx Alt-A Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities, Inc.
Alternative Loan Trust, Series 2003-1
Re: Deutsche Alt-A Securities, Inc. Alternative Loan Trust,
Series 2003-1, Class Mortgage Pass-Through Certificates
-------------------------------------------------------
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from
______________ (the "Seller") $_________ Initial Certificate Principal Balance
of Series 2003-1 Mortgage Pass-Through Certificates, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of Xxxxxx 0, 0000 xxxxx Xxxxxxxx
Xxx-X Securities, Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank
Minnesota, National Association, as master servicer and securities
administrator, and HSBC Bank USA, as trustee (the "Trustee"). All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Purchaser hereby certifies, represents and
warrants to, and covenants with, the Depositor, the Securities Administrator and
the Trustee that:
1. The Purchaser understands that (a) the
Certificates 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 Depositor is not
required to so register or qualify the Certificates, (c) the
Certificates 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 Pooling and Servicing
Agreement contains restrictions regarding the transfer of the
Certificates and (e) the Certificates will bear a legend to
the foregoing effect.
2. The Purchaser is acquiring the Certificates 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 Certificates,
such that it is capable of evaluating the merits and risks of
investment in the Certificates, (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 ______, 2002, relating to the Certificates
(b)] a copy of the Pooling and Servicing Agreement and [(b)]
[(c)] such other information concerning the Certificates, the
Mortgage Loans and the Depositor as has been requested by the
Purchaser from the Depositor or the Seller and is relevant to
the Purchaser's decision to purchase the Certificates. The
Purchaser has had any questions arising from such review
answered by the Depositor or the Seller to the satisfaction of
the Purchaser. [If the Purchaser did not purchase the
Certificates from the Seller in connection with the initial
distribution of the Certificates and was provided with a copy
of the Private Placement Memorandum (the "Memorandum")
relating to the original sale (the "Original Sale") of the
Certificates by the Depositor, the Purchaser acknowledges that
such Memorandum was provided to it by the Seller, that the
Memorandum was prepared by the Depositor solely for use in
connection with the Original Sale and the Depositor did not
participate in or facilitate in any way the purchase of the
Certificates by the Purchaser from the Seller, and the
Purchaser agrees that it will look solely to the Seller and
not to the Depositor with respect to any damage, liability,
claim or expense arising out of, resulting from or in
connection with (a) 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.]
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
Certificate, any interest in any Certificate 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 Certificate, any interest in any Certificate
or any other similar security from any person in any manner,
(c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate 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
Certificate under the Act, that would render the disposition
of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or
qualification pursuant
E-2
thereto. The Purchaser will not sell or otherwise transfer any
of the Certificates, except in compliance with the provisions
of the Pooling and Servicing Agreement.
Very truly yours,
________________________________
(Purchaser)
By:_____________________________
Name:___________________________
Title:__________________________
E-3
EXHIBIT F
FORM OF RULE 144A INVESTMENT LETTER
[Date]
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities Trust 2003-1
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Alt-A Securities, Inc., 0000-0
Xxxxxxxx Alt-A Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities, Inc.
Alternative Loan Trust, Series 2003-1
Re: Deutsche Alt-A Securities, Inc. Alternative Loan Trust, Series
2003-1 Mortgage Pass-Through Certificates, (the
"Certificates"), including the Class B-[3][4][5] Certificates
(the "Privately Offered Certificates")
--------------------------------------------------------------
Dear Ladies and Gentlemen:
In connection with our purchase of Privately Offered Certificates, we
confirm that:
(i) we understand that the Privately Offered Certificates
are not being registered under the Securities Act of
1933, as amended (the "Act") or any applicable state
securities or "Blue Sky" laws, and are being sold to
us in a transaction that is exempt from the
registration requirements of such laws;
(ii) any information we desired concerning the
Certificates, including the Privately Offered
Certificates, the trust in which the Certificates
represent the entire beneficial ownership interest
(the "Trust") or any other matter we deemed relevant
to our decision to purchase Privately Offered
Certificates has been made available to us;
(iii) we are able to bear the economic risk of investment
in Privately Offered Certificates; we are an
institutional "accredited investor" as defined in
Section 501(a) of Regulation D promulgated under the
Act and a sophisticated institutional investor;
F-1
(iv) we are acquiring Privately Offered Certificates for
our own account, not as nominee for any other person,
and not with a present view to any distribution or
other disposition of the Privately Offered
Certificates;
(v) we agree the Privately Offered Certificates must be
held indefinitely by us (and may not be sold,
pledged, hypothecated or in any way disposed of)
unless subsequently registered under the Act and any
applicable state securities or "Blue Sky" laws or an
exemption from the registration requirements of the
Act and any applicable state securities or "Blue Sky"
laws is available;
(vi) we agree that in the event that at some future time
we wish to dispose of or exchange any of the
Privately Offered Certificates (such disposition or
exchange not being currently foreseen or
contemplated), we will not transfer or exchange any
of the Privately Offered Certificates unless:
(A) (1) the sale is to an Eligible Purchaser
(as defined below), (2) if required by the Pooling
and Servicing Agreement (as defined below) a letter
to substantially the same effect as either this
letter or, if the Eligible Purchaser is a Qualified
Institutional Buyer as defined under Rule 144A of the
Act, the Rule 144A and Related Matters Certificate in
the form attached to the Pooling and Servicing
Agreement (as defined below) (or such other
documentation as may be acceptable to the Securities
Administrator) is executed promptly by the purchaser
and delivered to the addressees hereof and (3) all
offers or solicitations in connection with the sale,
whether directly or through any agent acting on our
behalf, are limited only to Eligible Purchasers and
are not made by means of any form of general
solicitation or general advertising whatsoever; and
(B) if the Privately Offered Certificate is
not registered under the Act (as to which we
acknowledge you have no obligation), the Privately
Offered Certificate is sold in a transaction that
does not require registration under the Act and any
applicable state securities or "blue sky" laws and,
if Xxxxx Fargo Bank Minnesota, National Association
(the "Securities Administrator") so requests, a
satisfactory Opinion of Counsel is furnished to such
effect, which Opinion of Counsel shall be an expense
of the transferor or the transferee;
(vii) we agree to be bound by all of the terms (including
those relating to restrictions on transfer) of the
Pooling and Servicing, pursuant to which the Trust
was formed; we have reviewed carefully and understand
the terms of the Pooling and Servicing Agreement;
(viii) we either: (i) are not acquiring the Privately
Offered Certificate directly or indirectly by, or on
behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of
the Employee Retirement Income
F-2
Security Act of 1974, as amended ("ERISA"), and/or
section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or (ii) are providing an
opinion of counsel to the effect that the proposed
transfer and/or holding of a Privately Offered
Certificate: (I) will not result in any non- exempt
prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and (II) will not subject
the Depositor, the Trustee, the Master Servicer or
the Securities Administrator to any obligation or
liability in addition to those undertaken in the
Agreement.
(ix) We understand that each of the Class B-[3][4][5]
Certificates bears, and will continue to bear, a
legend to substantiate the following effect: "THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY STATE SECURITIES
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED
FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN
THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or
(7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN
WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE
RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT
AND (B) THE RECEIPT BY THE SECURITIES ADMINISTRATOR
OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A
CERTIFICATION PURSUANT TO SECTION 5.3(e) OF THE
AGREEMENT OR AN OPINION OF COUNSEL
F-3
SATISFACTORY TO THE MASTER SERVICER, THE TRUSTEE, THE
DEPOSITOR AND THE SECURITIES ADMINISTRATOR THAT THE
PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE
TRUSTEE, THE DEPOSITOR OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT."
"ELIGIBLE PURCHASER" means a corporation, partnership or other
entity which we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is either a Qualified Institutional
Buyer as defined under Rule 144A of the Act or an institutional "Accredited
Investor" as defined under Rule 501 of the Act.
Terms not otherwise defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement, dated as of Xxxxxx 0,
0000, xxxxxxx Xxxxxxxx Xxx-X Securities, Inc., as depositor, Xxxxx Fargo Bank
Minnesota, National Association, as master servicer and securities
administrator, and HSBC Bank USA, as Trustee (the "Agreement").
If the Purchaser proposes that its Certificates be registered
in the name of a nominee on its behalf, the Purchaser has identified such
nominee below, and has caused such nominee to complete the Nominee
Acknowledgment at the end of this letter.
Name of Nominee (if any):_____________________
F-4
IN WITNESS WHEREOF, this document has been executed by the
undersigned who is duly authorized to do so on behalf of the undersigned
Eligible Purchaser on the ___ day of ________, 20___.
Very truly yours,
[PURCHASER]
By:________________________________
(Authorized Officer)
[By:_______________________________
Attorney-in-fact]
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Purchaser identified above, for whom the undersigned is acting
as nominee.
[NAME OF NOMINEE]
By:_________________________________
(Authorized Officer)
[By:________________________________
Attorney-in-fact]
EXHIBIT G
FORM OF BENEFIT PLAN AFFIDAVIT
[Date]
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities Trust 2003-1
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Alt-A Securities, Inc., 0000-0
Xxxxxxxx Alt-A Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Alt-A Securities, Inc.
Alternative Loan Trust, Series 2003-1
Re: Deutsche Alt-A Securities, Inc. Alternative Loan Trust, Series
2003-1 Mortgage Pass-through Certificates, (the "Trust") Class
[B-3, B-4, B-5, R] Certificates (the "Purchased Certificates")
--------------------------------------------------------------
Under penalties of perjury, I, ___________________, declare that, to the best of
my knowledge and belief, the following representations are true, correct and
complete; and
1. That I am the _________ of _________________ (the
"Purchaser"), whose taxpayer identification number is ___________, and on behalf
of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate
representing an interest in the Trust.
3. The Purchaser either (a) is not an employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a "plan" described in Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") or any entity deemed to hold plan assets of any of
the foregoing by reason of a plan's investment in such entity (a "Plan") or (b)
is an insurance company using assets of an "insurance company general account"
that is eligible for, and satisfies all of the requirements of Sections I and
III of Prohibited Transaction Class Exemption 95-60.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed
on its behalf, by its duly authorized officer this day of _____________, 20 .
[Purchaser]
By:_____________________________
Its:
G-2
