DEUTSCHE MORTGAGE SECURITIES, INC. Depositor and [NAME OF MASTER SERVICER] Master Servicer and Securities Administrator and [NAME OF TRUSTEE] Trustee POOLING AND SERVICING AGREEMENT Dated as of [______] 1, 200[___] Mortgage Pass- Through Certificates...
DEUTSCHE
MORTGAGE SECURITIES, INC.
Depositor
and
[NAME
OF
MASTER SERVICER]
Master
Servicer and Securities Administrator
and
[NAME
OF
TRUSTEE]
Trustee
________________________
Dated
as
of [______] 1, 200[___]
________________________
Mortgage
Pass-Through Certificates
Series
200[___]-[__]
Β
Β
Β
Β
Β
Β
|
Β TABLE
OF CONTENTS
|
|||
| Β | Β | ||
|
ARTICLE
I
|
Β |
DEFINITIONS
|
5
|
| Β | Β | Β | Β |
|
Section
1.1
|
Β |
Definitions.
|
5
|
|
Section
1.2
|
Β |
Allocation
of Certain Interest Shortfall.
|
45
|
| Β | Β | Β | Β |
|
ARTICLE
II
|
Β |
CONVEYANCE
OF TRUST FUND; ORIGINAL ISSUANCE OF CERTIFICATES
|
47
|
| Β | Β | Β | Β |
|
Section
2.1
|
Β |
Conveyance
of Trust Fund
|
47
|
|
Section
2.2
|
Β |
Acceptance
by Trustee
|
48
|
|
Section
2.3
|
Β |
Repurchase
or Substitution of Loans.
|
48
|
|
Section
2.4
|
Β |
Authentication
and Delivery of Certificates; Designation of Certificates as
REMIC Regular
Interests and Residual Interests.
|
51
|
|
Section
2.5
|
Β |
Representations
and Warranties of the Master Servicer
|
52
|
|
Section
2.6
|
Β |
[Conveyance
of Subsequent Loans.]
|
53
|
|
Section
2.7
|
Β |
Establishment
of the Trust.
|
56
|
|
Section
2.8
|
Β |
Purpose
and Powers of the Trust.
|
56
|
| Β | Β | Β | Β |
|
ARTICLE
III
|
Β |
ADMINISTRATION
AND SERVICING OF THE LOANS; ACCOUNTS
|
57
|
| Β | Β | Β | Β |
|
Section
3.1
|
Β |
Master
Servicer
|
57
|
|
Section
3.2
|
Β |
REMIC-Related
Covenants
|
58
|
|
Section
3.3
|
Β |
Monitoring
of Servicers
|
58
|
|
Section
3.4
|
Β |
Fidelity
Bond
|
59
|
|
Section
3.5
|
Β |
Power
to Act; Procedures
|
60
|
|
Section
3.6
|
Β |
Due-on-Sale
Clauses; Assumption Agreements
|
61
|
|
Section
3.7
|
Β |
Release
of Mortgage Files.
|
61
|
|
Section
3.8
|
Β |
Documents,
Records and Funds in Possession of Master Servicer To Be Held
for
Trustee.
|
62
|
|
Section
3.9
|
Β |
Standard
Hazard Insurance and Flood Insurance Policies.
|
62
|
|
Section
3.10
|
Β |
Presentment
of Claims and Collection of Proceeds
|
63
|
|
Section
3.11
|
Β |
Maintenance
of the Primary Mortgage Insurance Policies.
|
63
|
|
Section
3.12
|
Β |
Trustee
to Retain Possession of Certain Insurance Policies and
Documents
|
64
|
|
Section
3.13
|
Β |
Realization
Upon Defaulted Loans
|
64
|
|
Section
3.14
|
Β |
Compensation
for the Master Servicer.
|
64
|
|
Section
3.15
|
Β |
REO
Property.
|
65
|
|
Section
3.16
|
Β |
Annual
Statement as to Compliance.
|
66
|
|
Section
3.17
|
Β |
Assessments
of Compliance and Attestation Reports.
|
66
|
|
Section
3.18
|
Β |
Reports
Filed with Securities and Exchange Commission.
|
68
|
|
Section
3.19
|
Β |
Intention
of the Parties and Interpretation
|
71
|
|
Section
3.20
|
Β |
Obligation
of the Master Servicer in Respect of Compensating Interest
|
71
|
|
Section
3.21
|
Β |
Reserved.
|
71
|
|
Section
3.22
|
Β |
Protected
Accounts.
|
71
|
|
Section
3.23
|
Β |
Distribution
Account.
|
73
|
Β
Β
Β
-i-
Β
|
Section
3.24
|
Β |
Permitted
Withdrawals and Transfers from the Distribution Account.
|
74
|
|
Section
3.25
|
Β |
Class
[___] Reserve Fund.
|
76
|
|
Section
3.26
|
Β |
[Pre-Funding
Account.]
|
77
|
|
Section
3.27
|
Β |
[Capitalized
Interest Account.]
|
78
|
|
Section
3.28
|
Β |
Prepayment
Penalty Verification.
|
79
|
| Β | Β | Β | Β |
|
ARTICLE
IV
|
Β |
PAYMENTS
TO CERTIFICATEHOLDERS; ADVANCES; STATEMENTS AND REPORTS
|
81
|
| Β | Β | Β | Β |
|
Section
4.1
|
Β |
Distributions
to Certificateholders.
|
81
|
|
Section
4.2
|
Β |
Allocation
Realized Losses.
|
87
|
|
Section
4.3
|
Β |
Reduction
of Certificate Principal Balances on the Certificates.
|
89
|
|
Section
4.4
|
Β |
Compliance
with Withholding Requirements.
|
90
|
|
Section
4.5
|
Β |
Distributions
on the REMIC I Regular Interests.
|
90
|
|
Section
4.6
|
Β |
Statements
to Certificateholders.
|
91
|
|
Section
4.7
|
Β |
Advances.
|
95
|
| Β | Β | Β | Β |
|
ARTICLE
V
|
Β |
THE
CERTIFICATES
|
96
|
| Β | Β | Β | Β |
|
Section
5.1
|
Β |
The
Certificates.
|
96
|
|
Section
5.2
|
Β |
Registration
of Transfer and Exchange of Certificates.
|
98
|
|
Section
5.3
|
Β |
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
103
|
|
Section
5.4
|
Β |
Persons
Deemed Owners.
|
103
|
|
Section
5.5
|
Β |
Certain
Available Information.
|
103
|
| Β | Β | Β | Β |
|
ARTICLE
VI
|
Β |
THE
DEPOSITOR, THE MASTER SERVICER AND THE CREDIT RISK MANAGER
|
105
|
| Β | Β | Β | Β |
|
Section
6.1
|
Β |
Liability
of the Depositor and the Master Servicer.
|
105
|
|
Section
6.2
|
Β |
Merger
or Consolidation of the Depositor or the Master Servicer.
|
105
|
|
Section
6.3
|
Β |
Limitation
on Liability of the Depositor, the Master Servicer, the Servicers,
the
Securities Administrator and Others.
|
105
|
|
Section
6.4
|
Β |
Limitation
on Resignation of the Master Servicer.
|
106
|
|
Section
6.5
|
Β |
Assignment
of Master Servicing.
|
106
|
|
Section
6.6
|
Β |
Rights
of the Depositor in Respect of the Master Servicer.
|
107
|
|
Section
6.7
|
Β |
Duties
of the Credit Risk Manager.
|
108
|
|
Section
6.8
|
Β |
Limitation
Upon Liability of the Credit Risk Manager.
|
108
|
|
Section
6.9
|
Β |
Removal
of the Credit Risk Manager.
|
108
|
|
Section
6.10
|
Β |
Transfer
of Servicing by Sponsor of Certain Loans Serviced by
[GMAC].
|
108
|
| Β | Β | Β | Β |
|
ARTICLE
VII
|
Β |
DEFAULT
|
110
|
| Β | Β | Β | Β |
|
Section
7.1
|
Β |
Master
Servicer Events of Default.
|
110
|
|
Section
7.2
|
Β |
Trustee
to Act; Appointment of Successor.
|
112
|
|
Section
7.3
|
Β |
Notification
to Certificateholders.
|
113
|
|
Section
7.4
|
Β |
Waiver
of Master Servicer Events of Default.
|
113
|
Β
Β
-ii-
Β
|
ARTICLE
VIII
|
Β |
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
114
|
| Β | Β | Β | Β |
|
Section
8.1
|
Β |
Duties
of Trustee and Securities Administrator.
|
114
|
|
Section
8.2
|
Β |
Certain
Matters Affecting Trustee and Securities Administrator.
|
115
|
|
Section
8.3
|
Β |
Trustee
and Securities Administrator not Liable for Certificates or
Loans.
|
117
|
|
Section
8.4
|
Β |
Trustee,
Master Servicer and Securities Administrator May Own
Certificates.
|
117
|
|
Section
8.5
|
Β |
Fees
and Expenses of Trustee and Securities Administrator.
|
117
|
|
Section
8.6
|
Β |
Eligibility
Requirements for Trustee and Securities Administrator.
|
118
|
|
Section
8.7
|
Β |
Resignation
and Removal of Trustee and Securities Administrator.
|
119
|
|
Section
8.8
|
Β |
Successor
Trustee or Securities Administrator.
|
120
|
|
Section
8.9
|
Β |
Merger
or Consolidation of Trustee or Securities Administrator.
|
121
|
|
Section
8.10
|
Β |
Appointment
of Co-Trustee or Separate Trustee.
|
121
|
|
Section
8.11
|
Β |
Appointment
of Office or Agency.
|
122
|
|
Section
8.12
|
Β |
Representations
and Warranties of the Trustee.
|
122
|
| Β | Β | Β | Β |
|
ARTICLE
IX
|
Β |
TERMINATION
|
124
|
| Β | Β | Β | Β |
|
Section
9.1
|
Β |
Termination
Upon Purchase or Liquidation of the Loans.
|
124
|
|
Section
9.2
|
Β |
Additional
Termination Requirements.
|
126
|
| Β | Β | Β | Β |
|
ARTICLE
X
|
Β |
REMIC
PROVISIONS
|
128
|
| Β | Β | Β | Β |
|
Section
10.1
|
Β |
REMIC
Administration.
|
128
|
|
Section
10.2
|
Β |
Prohibited
Transactions and Activities.
|
130
|
|
Section
10.3
|
Β |
Indemnification.
|
131
|
| Β | Β | Β | Β |
|
ARTICLE
XI
|
Β |
MISCELLANEOUS
PROVISIONS
|
132
|
| Β | Β | Β | Β |
|
Section
11.1
|
Β |
Amendment
|
132
|
|
Section
11.2
|
Β |
Recordation
of Agreement; Counterparts
|
133
|
|
Section
11.3
|
Β |
Limitation
on Rights of Certificateholders
|
133
|
|
Section
11.4
|
Β |
Governing
Law
|
134
|
|
Section
11.5
|
Β |
Notices
|
134
|
|
Section
11.6
|
Β |
Severability
of Provisions.
|
135
|
|
Section
11.7
|
Β |
Notice
to Rating Agencies.
|
135
|
|
Section
11.8
|
Β |
Article
and Section References.
|
136
|
|
Section
11.9
|
Β |
Grant
of Security Interest.
|
136
|
-iii-
|
EXHIBITS
|
Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
|
Exhibit
A-1
|
Β |
-
|
Β |
Form
of Class I-A-[1][5] Certificates
|
|
Exhibit
A-2
|
Β |
-
|
Β |
Form
of Class I-A-2 Certificates
|
|
Exhibit
A-3
|
Β |
-
|
Β |
Form
of Class I-A-[3][4][7][8] Certificates
|
|
Exhibit
A-4
|
Β |
-
|
Β |
Form
of Class I-A-6 Certificates
|
|
Exhibit
A-5
|
Β |
-
|
Β |
Form
of Class II-A-[1][2][3][4] Certificates
|
|
Exhibit
A-6
|
Β |
-
|
Β |
Form
of Class [I][II]-A-IO Certificates
|
|
Exhibit
A-7
|
Β |
-
|
Β |
Form
of Class [I][II]-A-PO Certificates
|
|
Exhibit
A-8
|
Β |
-
|
Β |
Form
of Class M Certificates
|
|
Exhibit
A-9
|
Β |
-
|
Β |
Form
of Class B-[1][2] Certificates
|
|
Exhibit
A-10
|
Β |
-
|
Β |
Form
of Class B-[3][4][5] Certificates
|
|
Exhibit
A-11
|
Β |
-
|
Β |
Form
of Class R Certificates
|
|
Exhibit
A-12
|
Β |
-
|
Β |
Form
of Class P-[1][2] Certificates
|
|
Exhibit
B-1
|
Β |
-
|
Β |
Form
of Rule 144A Investment Letter
|
|
Exhibit
B-2
|
Β |
-
|
Β |
Form
of Investment Letter (Non-Rule 144A)
|
|
Exhibit
B-3
|
Β |
-
|
Β |
Form
of Regulation S Transfer Certificate
|
|
Exhibit
B-4
|
Β |
-
|
Β |
Form
of Clearing System Certificate
|
|
Exhibit
C
|
Β |
-
|
Β |
Form
of Transfer Affidavit
|
|
Exhibit
D
|
Β |
-
|
Β |
Form
of Addition Notice
|
|
Exhibit
E
|
Β |
-
|
Β |
Form
of Subsequent Transfer Instrument
|
|
Exhibit
F
|
Β |
-
|
Β |
Servicing
Criteria to be Addressed in Assessment of Compliance
|
|
Exhibit
G
|
Β |
-
|
Β |
Form
of Backup Certification
|
| Β | Β | Β | Β | Β |
|
Schedule
One
|
Β |
-
|
Β |
Loan
Schedule
|
|
Schedule
Two
|
Β |
-
|
Β |
Prepayment
Charge Schedule
|
|
Schedule
Three
|
Β |
-
|
Β |
Identified
Subsequent Loans
|
Β
Β
-iv-
Β
Β
This
Pooling and Servicing Agreement, dated and effective as of [______] 1, 2007
(this βAgreementβ), is executed by and among Deutsche Alt-A Securities, Inc., as
depositor (the βDepositorβ), [Name of Master Servicer], as master servicer (the
βMaster Servicerβ) and securities administrator (the βSecurities
Administratorβ), and [Name of Trustee], as trustee (the βTrusteeβ). Capitalized
terms used in this Agreement and not otherwise defined have the meanings
ascribed to such terms in Article I hereof.
Β
PRELIMINARY
STATEMENT
Β
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. The Trust
Fund will consist of a segregated pool of assets comprised of the Loans, the
Subsequent Loans and certain other assets. 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, the
Securities Administrator and the Trustee 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.
Β
The
Certificates issued hereunder, other than the Junior Subordinate Certificates
and Class P Certificates, have been offered for sale pursuant to a Prospectus,
dated [___________], 200[__], and a Prospectus Supplement, dated [___________],
200[__] of the Depositor (together, the βProspectusβ). The Junior Subordinate
Certificates have been offered for sale pursuant to a Private Placement
Memorandum, dated [___________], 200[__]. The Trust Fund created hereunder
is
intended to be the βTrustβ as described in the Prospectus and the Certificates
are intended to be the βCertificatesβ described therein.
Β
REMIC
I
Β
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets described in the definition of REMIC I (as defined herein), and
subject to this Agreement, as a real estate mortgage investment conduit (a
βREMICβ) for federal income tax purposes and such segregated pool of assets will
be designated as βREMIC Iβ. The REMIC I Regular Interests will be the βregular
interestsβ in REMIC I and Component R-1 of the Class R Certificates will
represent the sole Class of βresidual interestsβ in REMIC I for purposes of the
REMIC Provisions (as defined herein) under the federal income tax law. The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
I Pass-Through Rate, the initial Uncertificated Principal Balance, and for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
βlatest possible maturity dateβ for each of the REMIC I Regular Interests. None
of the REMIC I Regular Interests will be certificated.
Β
|
REMIC
I
Regular
Interest Designation
|
Β |
Uncertificated
REMIC
I
Pass-Through
Rate
|
Β |
Initial
Uncertificated
Principal
Balance
|
Β |
Β
Latest
Possible
Maturity
Date(1)
|
Β | |||
|
LT-IA1
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IA3
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IA4
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IA5
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IA7
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IA8
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IAIO
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IAPO
|
Β
|
Β
|
0.00%
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IIA1
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IIA2
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IIA3
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IIA4
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IIAIO
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-IIAPO
|
Β
|
Β
|
0.00%
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-M
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-B1
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-B2
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-B3
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-B4
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-B5
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-P1
|
Β
|
Β
|
0.00%
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-P2
|
Β
|
Β
|
0.00%
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
LT-R
|
Β
|
Β
|
(2)
|
Β
|
$
|
Β
|
Β
|
Β
|
Β
|
Β
|
_________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the latest possible maturity
date
for the Loans has been designated as the βlatest possible maturity dateβ
for each REMIC I Regular Interest.
|
|
(2)
|
Calculated
in accordance with the definition of βUncertificated REMIC I Pass-Through
Rateβ herein.
|
-
2 -
Β
As
provided herein, the Trustee will make an election to treat the segregated
pool
of assets consisting of the REMIC I Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated
as
βREMIC IIβ. Component R-2 of the Class R Certificates shall represent the sole
Class of βresidual interestsβ in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designations, the Pass-Through Rate and initial aggregate Certificate Principal
Balance for each Class of Certificates which, together with Component R-2,
constitute the entire beneficial interests in REMIC II. Determined for purposes
of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the βlatest
possible maturity dateβ for each Class of Certificates shall be the Distribution
Date in the month following the maturity date for the Loan with the latest
maturity date:
|
Class
Designation
|
Β |
Initial
aggregate Certificate
Principal
Balance or
Notional
Amount
|
Β |
Pass-Through
Rate
|
Β |
Latest
Possible
Maturity
Date(1)
|
Β | |||
|
I-A-1
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-2
|
Β
|
$
|
Β
|
Β
|
Β
|
(3)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-3
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-4
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-5
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-6
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-7
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-8
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-IO
|
Β
|
$
|
Β
|
Β
|
Β
|
(4)
|
Β
|
Β
|
Β
|
Β
|
|
I-A-PO
|
Β
|
$
|
Β
|
Β
|
Β
|
N/A
|
Β
|
Β
|
Β
|
Β
|
|
II-A-1
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
II-A-2
|
Β
|
$
|
Β
|
Β
|
Β
|
(5)
|
Β
|
Β
|
Β
|
Β
|
|
II-A-3
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
II-A-4
|
Β
|
$
|
Β
|
Β
|
Β
|
(2)
|
Β
|
Β
|
Β
|
Β
|
|
II-A-IO
|
Β
|
$
|
Β
|
Β
|
Β
|
(6)
|
Β
|
Β
|
Β
|
Β
|
|
II-A-PO
|
Β
|
$
|
Β
|
Β
|
Β
|
N/A
|
Β
|
Β
|
Β
|
Β
|
|
R
|
Β
|
$
|
Β
|
Β
|
Β
|
(7)
|
Β
|
Β
|
Β
|
Β
|
|
M
|
Β
|
$
|
Β
|
Β
|
Β
|
(8)
|
Β
|
Β
|
Β
|
Β
|
|
B-1
|
Β
|
$
|
Β
|
Β
|
Β
|
(8)
|
Β
|
Β
|
Β
|
Β
|
|
B-2
|
Β
|
$
|
Β
|
Β
|
Β
|
(8)
|
Β
|
Β
|
Β
|
Β
|
|
B-3
|
Β
|
$
|
Β
|
Β
|
Β
|
(8)
|
Β
|
Β
|
Β
|
Β
|
|
B-4
|
Β
|
$
|
Β
|
Β
|
Β
|
(8)
|
Β
|
Β
|
Β
|
Β
|
|
B-5
|
Β
|
$
|
Β
|
Β
|
Β
|
(8)
|
Β
|
Β
|
Β
|
Β
|
|
P-1
|
Β
|
$
|
Β
|
Β
|
Β
|
N/A
|
Β
|
Β
|
Β
|
Β
|
|
P-2
|
Β
|
$
|
Β
|
Β
|
Β
|
N/A
|
Β
|
Β
|
Β
|
Β |
___________________
|
(1)
|
The
Distribution Date in the month after the maturity date for the latest
maturing Loan. For purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date in the month following the maturity
date for the loan with the latest maturity date has been designated
as the
βlatest possible maturity dateβ for each Class of
Certificates.
|
|
(2)
|
Calculated
in accordance with the definition of βPass-Through Rateβ herein. The
Pass-Through Rate for the first Interest Accrual Period for the Class
[__], Class [__], Class [__], Class [__], Class [__], Class [__],
Class
[__], Class [__], Class [__], Class [__] and Class [__] Certificates
for
the first Interest Accrual Period is [__]%,[__]%,[__]%,
[__]%,[__]%,[__]%,[__]%, [__]%,[__]%,[__]% and [__]%,
respectively.
|
-
3 -
|
(3)
|
The
Class [__] Certificates will accrue interest at the Pass-Through
Rate
(calculated in accordance with the definition of βPass-Through Rateβ
herein) on the Notional Amount of the Class [__] Certificates calculated
in accordance with the definition of βNotional Amountβ herein. The Class
[__] Certificates will not be entitled to distributions in respect
of
principal.
|
|
(4)
|
The
Class [__] Certificates will accrue interest at the Pass-Through
Rate
(calculated in accordance with the definition of βPass-Through Rateβ
herein) on the Notional Amount of the Class [__] Certificates calculated
in accordance with the definition of βNotional Amountβ herein. The Class
[__] Certificates will not be entitled to distributions in respect
of
principal.
|
|
(6)
|
The
Class [__] Certificates will accrue interest at the Pass-Through
Rate
(calculated in accordance with the definition of βPass-Through Rateβ
herein) on the Notional Amount of the Class [__] Certificates calculated
in accordance with the definition of βNotional Amountβ herein. The Class
[__] Certificates will not be entitled to distributions in respect
of
principal.
|
|
(7)
|
The
Class R Certificates will accrue interest at a per annum rate equal
to
[__]%.
|
|
(8)
|
Calculated
in accordance with the definition of βPass-Through Rateβ herein. The
subordinate pass-through rate for the first Interest Accrual Period
is
[__]%
|
-
4 -
WITNESSETH
Β
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Securities Administrator and the Trustee agree as
follows:
Β
ARTICLE
I
DEFINITIONS
Β
Section
1.1Β Definitions.
Β
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article:
Β
Accepted
Master Servicing Practices:
With
respect to any Loan, 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).
Β
Account:
The
Distribution Account, [the Pre-Funding Account], the Capitalized Interest
Account and any Protected Account as the context may require.
Β
[Addition
Notice:
With
respect to the transfer of Subsequent Loans to the Trust Fund pursuant to
SectionΒ 2.6, a notice of the Depositorβs designation of the Subsequent
Loans to be sold to the Trust Fund and the aggregate principal balance of such
Subsequent Loans as of the Subsequent Cut-off Date. The Addition Notice shall
be
given not later than five (5) Business Days prior to the related Subsequent
Transfer Date and shall be substantially in the form attached hereto as Exhibit
D.]
Β
Adjustable
Rate Certificates:
The
Class [__], Class [__], Class [__] and Class [__] Certificates.
Β
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 or the Trustee pursuant to Section 4.7.
Β
Adverse
REMIC Event:
As
defined in SectionΒ 10.1(f).
Β
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, βcontrolβ 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 βcontrollingβ and βcontrolledβ have meanings
correlative to the foregoing. The Trustee may obtain and rely on an Officerβs
Certificate of a Servicer or the Depositor to determine whether any Person
is an
Affiliate of such party.
Β
-
5 -
Β
Aggregate
Senior Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the aggregate Certificate Principal Balance of the Senior
Certificates (other than the Class [__], Class [__], Class [__], Class [__]
and
Class [__] Certificates) immediately prior to that Distribution Date, and the
denominator of which is the sum of the Scheduled Principal Balances of the
Loans
as of the first day of the related Due Period (exclusive of the Group I Discount
Fraction of the Scheduled Principal Balance of each Group I Discount Loan and
the Group I Discount Fraction of the Scheduled Principal Balance of each Group
I
Discount Loan).
Β
Aggregate
Subordinate Amount:
With
respect to any date of determination, an amount equal to the excess of the
aggregate Scheduled Principal Balance of the Loans (exclusive of the Group
I
Discount Fraction of the Scheduled Principal Balance of each Group I Discount
Loan and the Group II Discount Fraction of the Scheduled Principal Balance
of
each Group II Discount Loan) over the aggregate Certificate Principal Balance
of
the Senior Certificates (other than the Class [__], Class [__], Class [__],
Class [__] and Class [__] Certificates) then outstanding.
Β
Aggregate
Subordinate Percentage:
With
respect to any Distribution Date, 100% minus the Aggregate Senior Percentage
for
that Distribution Date.
Β
Agreement:
This
Pooling and Servicing Agreement and all amendments and supplements
hereto.
Β
[AHMC:
American Home Mortgage Corp., or any successor thereto.]
Β
[AHMC
Mortgage Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of [________], 2007 between the
Depositor and AHMC.]
Β
[American
Home:
American Home Mortgage Servicing, Inc., or any successor thereto.]
Β
[American
Home Servicing Agreement:
Shall
mean the Master Mortgage Loan Purchase and Interim Servicing Agreement, dated
as
of OctoberΒ 1, 2005, among GMAC, American Home Mortgage Corp. and American
Home, as amended (as modified pursuant to the related Assignment
Agreement).]
Β
Anniversary:
Each
anniversary of the Cut-Off Date.
Β
Appraised
Value:
The
amount set forth in an appraisal made by or for the mortgage originator in
connection with its origination of each Loan.
Β
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.
Β
-
6 -
Β
Assignment
Agreements:
Shall
mean (i) the Assignment, Assumption and Recognition Agreement, dated as of
[_______], 2007, among Sponsor, 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
[_______], 2007, among Sponsor, the Depositor and [GreenPoint], pursuant to
which the [GreenPoint Servicing Agreement] was assigned to the Depositor, (iii)
the Assignment, Assumption and Recognition Agreement, dated as of [_______],
2007, among Sponsor, the Depositor and [GMAC], pursuant to which the [GMAC
2004
Servicing Agreement] was assigned to the Depositor, (iv) the Assignment,
Assumption and Recognition Agreement, dated as of [_______], 2007, among
Sponsor, the Depositor and [GMAC], pursuant to which the [GMAC 2005 Servicing
Agreement] was assigned to the Depositor, (v) the Assignment, Assumption and
Recognition Agreement, dated as of [_______], 2007, among Sponsor, the Depositor
and [Xxxxx Fargo], pursuant to which the [Xxxxx Fargo Servicing Agreement]
was
assigned to the Depositor and (vi) the Assignment, Assumption and Recognition
Agreement [(the βAmerican Home Assignment Agreementβ)], dated as of [_______],
2007, between the Depositor and [American Home], pursuant to which the [AHMC
Servicing Agreement] was assigned to the Depositor.
Β
Authorized
Denomination:
With
respect to the Certificates (other than the Class P Certificates and Residual
Certificates), a minimum initial Certificate Principal Balance or Notional
Amount of $25,000 each and integral multiples of $1.00 in excess thereof as
set
forth on the face thereof. With respect to the Class P Certificates, a minimum
initial Certificate Principal Balance of $20 and integral multiples in excess
thereof as set forth on the face thereof. With respect to the Class R
Certificates, one Certificate with a Percentage Interest equal to 100% as set
forth on the face thereof.
Β
Available
Distribution Amount:
Any of
the Group I Available Distribution Amount or Group II Available Distribution
Amount.
Β
Bankruptcy
Coverage:
As of
the Cut-Off Date, $[_______]. Bankruptcy Coverage will be reduced, from time
to
time, by the amount of Bankruptcy Losses allocated to the
Certificates.
Β
Bankruptcy
Loss:
Any
Debt Service Reduction or Deficient Valuation.
Β
Basis
Risk Carryover Amount:
With respect to the Class [___] Certificates, an amount equal to the sum of
(i)
the excess of (x) the amount of interest the Class [___] Certificates would
have
been entitled to receive on such Distribution Date had the Pass-Through Rate
applicable to the Class [___] Certificates for such Distribution Date been
equal
to One-Month LIBOR plus [___]% per annum over (y) the amount of interest paid
on
such Distribution Date at a rate equal to [___]% per annum and (ii) the Basis
Risk Carryover Amount for the previous Distribution Date not previously
distributed, together with interest thereon at a rate equal to the Pass-Through
Rate applicable to the Class [___] Certificates for the most recently ended
Interest Accrual Period determined without taking into account the fixed rate
set forth in clause (y) above.
Β
-
7 -
Β
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.
Β
Book-Entry
Certificates:
The
Senior Certificates (other than the Class R Certificates), Class [___],
Class
[___]
and
Class
[___]
Certificates.
Β
Business
Day:
Any day
other than a Saturday, a Sunday, or a day on which banking institutions in
Maryland, Minnesota or New York or the city in which the Corporate Trust Office
of the Trustee is located, are authorized or obligated by law or executive
order
to be closed.
Β
Cap
Contract:
Shall
mean the Cap Contract between the Trustee and The Bank of New York, together
with any successor thereto, for the benefit of the Holders of the Class
[___]
Certificates.
Β
Capitalized
Interest Account:
The
account established and maintained pursuant to SectionΒ 3.27.
Β
Capitalized
Interest Requirement:
On the
Closing Date, $[___],
and on
any date thereafter, 30-days interest accrued on the amount in the Pre-Funding
Account at the weighted average of the Net Mortgage Rates of the
Loans.
Β
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, X-0,
X-0, X-0, X-0, X-0, X-00, X-00 xxx X-00 hereto.
Β
Certificate
Owner:
With
respect to a Book-Entry Certificate or Global 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.
Β
Certificate
Principal Balance:
The
Certificate Principal Balance with respect to any Senior Certificate (other
than
the Class [___],
Class
[___]
and
Class
[___]
Certificates,
which have no Certificate Principal Balance) and any Subordinate Certificate
outstanding at any time, represents the then maximum amount that the holder
of
such Certificate is entitled to receive as distributions allocable to principal
from the cash flow on the Loans in the related Loan Group and the other assets
in the Trust Fund. The Certificate Principal Balance of a Senior Certificate
(other than the Class [___],
Class
[___]
and
Class
[___]
Certificates,
which have no Certificate Principal Balance) and any Subordinate Certificate,
as
of any date of determination is equal to the initial Certificate Principal
Balance of such Certificate reduced by the aggregate of (i) all amounts
allocable to principal previously distributed with respect to that Certificate
and (ii) any reductions in the Certificate Principal Balance of such Certificate
deemed to have occurred in connection with allocations of Realized Losses,
if
any. The initial Certificate Principal Balance of each Class of Certificates
is
set forth in the Preliminary Statement hereto. When used in reference to a
Class, the term Certificate Principal Balance means the aggregate of the
Certificate Principal Balances of all Certificates of such Class, and when
used
in reference to a group of Certificates (such as the Group I Senior Certificates
and Subordinate Certificates) shall mean the aggregate Certificate Principal
Balances of all Classes of Certificates included in such group.
Β
-
8 -
Β
Certificate
Register:
The
register maintained pursuant to Section 5.2.
Β
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, Sponsor or the Master Servicer in determining
whether a Certificate is held by an Affiliate thereof. All references herein
to
βHoldersβ or βCertificateholdersβ 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 βHolderβ or βCertificateholderβ only the Person in whose name a
Certificate is registered in the Certificate Register.
Β
Class:
All
Certificates having the same priority and rights to payments from the related
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,
X-0, X-0, X-0, X-0, X-00, X-00 and A-12, as applicable.
Β
Class
B Certificates:
The
Class [___],
Class
[___],
Class
[___],
Class
[___]
and
Class
[___]
Certificates.
Β
Class
P Certificates:
The
Class [___]
Certificates
and Class [___]
Certificates.
Β
Class
[___]
Reserve
Fund:
The
separate trust account created and maintained by the Securities Administrator
pursuant to Section 3.25 of this Agreement for the benefit of the Class
[___]
Certificates.
Β
Class
[___]
/Class
[___]
Priority
Amount:
For any Distribution Date shall equal the lesser of (a) the Principal
Distribution Amount for the Group I Loans and (b) the product of (i) the sum
of
the Principal Distribution Amount and the Principal Prepayment Amount for the
Group I Mortgage Loans (exclusive of the Group I Discount Fractional Principal
Amount), (ii) the Class [___] /Class [___] Priority Percentage and (iii) the
Shift Percentage.
Β
Class
[___]
/Class
[___]
Priority
Percentage:
For any Distribution Date shall be the percentage equivalent of a fraction,
the
numerator of which is the sum of the Certificate Principal Balances of the
Class
[___] Certificates and Class [___] Certificates, and the denominator of which
is
the aggregate Scheduled Principal Balance of the Group I Loans (exclusive of
the
applicable Group I Discount Fraction of the Scheduled Principal Balance of
each
Group I Discount Loan).
Β
-
9 -
Β
Class
[___]
/Class
[___]
Priority
Amount:
For any Distribution Date shall equal the lesser of (a) the Principal
Distribution Amount for the Group II Loans and (b) the product of (i) the sum
of
the Principal Distribution Amount and the Principal Prepayment Amount for the
Group II Loans (exclusive of the Group II Discount Fractional Principal Amount),
(ii) the Class [___] /Class [___] Priority Percentage and (iii) the Shift
Percentage.
Β
Class
[___]
/Class
[___]
Priority
Percentage:
For any Distribution Date shall be the percentage equivalent of a fraction,
the
numerator of which is the sum of the Certificate Principal Balances of the
Class
[___] Certificates and Class [___] Certificates, and the denominator of which
is
the aggregate Scheduled Principal Balance of the Group II Loans (exclusive
of
the applicable Group II Discount Fraction of the Scheduled Principal Balance
of
each Group II Discount Loan).
Β
Clearing
Agency:
An
organization registered as a βclearing agencyβ pursuant to Section 17A of the
Securities and Exchange Act of 1934, as amended, which initially shall be the
Depository.
Β
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
the
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
Β
Clearstream:
Clearstream, Luxembourg, socΓetΓ© anonyme (formerly known as Cedelbank), a
corporation organized under the laws of the Duchy of Luxembourg.
Β
Closing
Date:
[_____________], 200[__].
Β
Code:
The
Internal Revenue Code of 1986, as amended.
Β
Collateral
Deficiency Amount:
With
respect to a Loan Group and any Distribution Date prior to the Credit Support
Depletion Date, the amount by which (i) the aggregate Certificate Principal
Balance of the related Senior Certificates (other than the Class [___],
Class
[___]
and
Class
[___]
Certificates),
after giving effect to payments of principal (other than the related Collateral
Deficiency Amount) on that Distribution Date exceeds (ii) the Scheduled
Principal Balance of the Loans in the related Loan Group as of the last day
of
the related Due Period.
Β
Compensating
Interest:
For any
Distribution Date (a) with respect to the Loans serviced by [GreenPoint,
National City, American Home and GMAC pursuant to the GMAC 2004 Servicing
Agreement], the lesser of (i) the aggregate Prepayment Interest Shortfalls
and
Curtailment Shortfalls for such Loans made during the related Prepayment Period
and (ii) the aggregate Servicing Fee payable to such Servicer for the related
Due Period, (b) with respect to the Loans serviced by [Xxxxx Fargo], the lesser
of (i) the aggregate Prepayment Interest Shortfalls for such Loans made during
the related Prepayment Period with respect to prepayments in full or in part
and
(ii) the aggregate Servicing Fee payable to [Xxxxx Fargo] for the related Due
Period and (c) with respect to the Loans serviced by GMAC] pursuant to the
[GMAC
2005 Servicing Agreement], the lesser of (i) the aggregate Prepayment Interest
Shortfalls for such Loans made during the portion of the related Prepayment
Period occurring between the 16th day of the month preceding the month in which
such Distribution Date occurs and ending on the last day of the calendar month
preceding the month in which such Distribution Date occurs and (ii) the
aggregate Servicing Fee payable to [GMAC] for the related Due
Period.
Β
-
10 -
Β
Component
R-1:
The
uncertificated residual interest in REMIC I.
Β
Component
R-2:
The
uncertificated residual interest in REMIC II.
Β
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, [Name of Trustee], [Address of Trustee], 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, [Name of Master Servicer], [Address of Master Servicer],
Attention: DMSI 200[__]-[__] and (B) for all other purposes, [Name of Master
Servicer], [Address of Master Servicer], Attention: DMSI 200[__]-[__], 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.
Β
Corresponding
Certificate:
With
respect to each REMIC I Regular Interest listed below, the corresponding Class
of Regular Certificates listed below:
Β
|
REMIC
I Regular Interest
|
Β |
Class
|
Β | |
|
REMIC
I Regular Interest LT-IA1
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-Β IA3
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-Β IA4
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IA5
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IA7
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IA8
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IAPO
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IIA1
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IIA2
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IIA3
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IIA4
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-IIAPO
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-M
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-B1
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-B2
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-B3
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-B4
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-B5
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-P1
|
Β | Β | Β | Β |
|
REMIC
I Regular Interest LT-P2
|
Β | Β | Β | Β |
-
11 -
Credit
Risk Management Agreement or Credit Risk Management Agreements:
Each
agreement between the Credit Risk Manager and a Servicer or the Master Servicer,
regarding the loss mitigation and advisory services to be provided by the Credit
Risk Manager.
Β
Credit
Risk Management Fee:
The
amount payable to the Credit Risk Manager on each Distribution Date as
compensation for all services rendered by it in the exercise and performance
of
any and all powers and duties of the Credit Risk Manager under any Credit Risk
Management Agreement, which amount shall equal one twelfth of the product of
(i)
the Credit Risk Management Fee Rate multiplied by (ii) the Scheduled Principal
Balance of the Loans and any related REO Properties as of the first day of
the
related Due Period.
Β
Credit
Risk Management Fee Rate:
[_____]% per annum.
Β
Credit
Risk Manager:
[Name
of Credirt Risk Manager], and its successors and assigns.
Β
Credit
Support Depletion Date:
The
Distribution Date on which the aggregate Certificate Principal Balance of the
Subordinate Certificates has been reduced to zero, prior to giving effect to
principal distributions thereon and the allocation of Realized Losses on such
Distribution Date.
Β
Cross
Payment Trigger Date:
Any
Distribution Date on which (i) the aggregate Certificate Principal Balance
of
the Senior Certificates related to a Loan Group (other than the Class
[___],
Class
[___]
and
Class
[___]
Certificates)
have been reduced to zero and (ii) either (a) the Subordinate Percentage of
a
Loan Group is less than 200% times the related Subordinate Percentage as of
the
Closing Date, or (b) the aggregate Principal Balance of the Loans (including
Loans in bankruptcy, foreclosure and REO) which are 60 or more days delinquent
(averaged over the preceding six-month period), as a percentage of the
Subordinate Amount of a Loan Group, is equal to or greater than 50% as of such
Distribution Date.
Β
Curtailment:
Any
voluntary 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.
Β
Curtailment
Shortfall:
With
respect to any Distribution Date and any Curtailment received during the related
Prepayment Period, an amount equal to one monthβs interest on such Curtailment
at the applicable Net Mortgage Rate on such Loan.
Β
Custodial
Agreement:
Either
of the [DBNT Custodial Agreement] or the [Xxxxx Fargo Custodial Agreement],
or
any other custodial agreement entered into after the date hereof with respect
to
any Loan subject to this Agreement.
Β
Custodian:
Either
[DBNT or Xxxxx Fargo] or any other custodian appointed under any custodial
agreement entered into after the date of this Agreement.
Β
Cut-Off
Date:
[_______], 200[__]; except that with respect to each Substitute Loan, the
Cut-Off Date shall be the date of substitution.
Β
-
12 -
Β
[DBNT:
Deutsche Bank National Trust Company, a national banking
association.]
Β
[DBNT
Custodial Agreement: The Custodial Agreement dated as of [_______], 2007, among
the Trustee, DBNT and American Home, as may be amended or supplemented from
time
to time.]
Β
Debt
Service Reduction:
Any
reduction of the amount of the monthly payment on a Loan made by a bankruptcy
court in connection with a personal bankruptcy of a Mortgagor.
Β
Deficient
Valuation:
In
connection with a personal bankruptcy of a Mortgagor on a Loan, the positive
difference, if any, resulting from the outstanding principal balance on a Loan
less a bankruptcy courtβs valuation of the related Mortgaged
Property.
Β
Definitive
Certificates:
As
defined in Section 5.1.
Β
Deleted
Loan:
A Loan
replaced or to be replaced by a Substitute Loan.
Β
Depositor:
Deutsche Mortgage Securities, Inc., a Delaware corporation, or its
successor-in-interest.
Β
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 βclearing corporationβ as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York and a Clearing
Agency.
Β
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.
Β
Determination
Date:
With
respect to each Servicer, the day of the month set forth as the Determination
Date in the related Servicing Agreement. With respect to Article IX hereto,
the
fifteenth (15th)
day of
the month or if such day is not a Business Day, the Business Day immediately
following such fifteenth (15th)
day.
Β
Disqualified
Organization:
A
βdisqualified organizationβ as defined in SectionΒ 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 Residual Certificate and of which
a
Disqualified Organization, directly or indirectly, may be a stockholder, partner
or beneficiary.
Β
Distribution
Account:
The
separate trust account or accounts created and maintained by the Securities
Administrator pursuant to Section 3.23, for the benefit of the
Certificateholders and designated βXxxxx [Name of Master Servicer], as
Securities Administrator, in trust for registered holders of Deutsche Mortgage
Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__].β Funds in the
Distribution Account shall be held in trust for the Certificateholders for
the
uses and purposes set forth in this Agreement. Each Distribution Account must
be
an Eligible Account.
Β
-
13 -
Β
Distribution
Account Deposit Date:
With
respect to each Distribution Date, the Business Day prior to such Distribution
Date.
Β
Distribution
Date:
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 [__________], 200[__].
Β
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 βrelated Due Dateβ for
any Distribution Date is the Due Date immediately preceding such Distribution
Date.
Β
Due
Period: With
respect to any Distribution Date and the Loans, 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.
Β
Eligible
Account:
Any
account or accounts held and established by the Securities Administrator in
trust for the Certificateholders at any Eligible Institution.
Β
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.
Β
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
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:
Β
(a)Β 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;
Β
(b)Β 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 βAAAβ and βAaaβ in the case of S&P and
Moodyβs (the initial rating of the Senior Certificates (other than the Class
I-A-8 Certificates, which are rated βAa1β by Moodyβs));
Β
-
14 -
Β
(c)Β demand
and time deposits in or certificates of deposit of, or bankersβ 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;
Β
(d)Β 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 downgrading or withdrawal of the rating or ratings then
assigned to any Class of Certificates by any Rating Agency;
Β
(e)Β 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;
Β
(f)Β 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;
Β
(g)Β 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;
Β
(h)Β 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;
Β
-
15 -
Β
(i)Β 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;
Β
(j)Β 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 Senior Certificates; and
Β
(k)Β such
other obligations as are acceptable as Eligible Investments to each Rating
Agency;
Β
provided,
however, that such instrument continues to qualify as a βcash flow investmentβ
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.
Β
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
Β
Euroclear:
Euroclear Bank SA/NV, Brussels office, as operator of the Euroclear
system.
Β
Excess
Loss:
A
Special Hazard Loss incurred on a Loan in a Loan Group in excess of the Special
Hazard Coverage, a Fraud Loss incurred on a Loan in a Loan Group in excess
of
the Fraud Coverage and a Bankruptcy Loss incurred on a Loan in a Loan Group
in
excess of the Bankruptcy Coverage.
Β
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Β
Xxxxxx
Mae:
Xxxxxx
Xxx, formerly known as the Federal National Mortgage Association, or any
successor thereto.
Β
FDIC:
Federal
Deposit Insurance Corporation, or any successor thereto.
Β
Fitch:
Fitch
Ratings or any successor thereto.
Β
Fraud
Coverage: As
of the
Cut-Off Date, will be $[_______].
As of
any date of determination after the Cut-Off Date, the Fraud Coverage will
generally be equal to:
Β
(1)Β Β Β on
and
after the first Anniversary, an amount equal to:
Β
| Β |
(a)
|
2.00%
of the aggregate Principal Balance of the Loans as of the Cut-Off
Date,
minus
|
Β
-
16 -
Β
| Β |
(b)
|
the
aggregate amounts allocated to the Certificates with respect to Fraud
Losses on the Loans up to such date of
determination;
|
Β
(2)Β Β Β from
the
second to and including the fifth Anniversary, an amount equal to:
Β
| Β |
(a)
|
1.00%
of the aggregate Principal Balance of the Loans as of the Cut-Off
Date,
minus
|
Β
| Β |
(b)
|
the
aggregate amounts allocated to the Certificates with respect to Fraud
Losses on the Loans up to such date of
determination;
|
Β
(3)Β Β Β after
the
fifth Anniversary, the Fraud Coverage will be zero.
Β
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.
Β
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
Β
Global
Certificate:
A
Regulation S Temporary Global Certificate or a Regulation S Permanent Global
Certificate.
Β
[GMAC:
GMAC
Mortgage Corporation, a Delaware corporation, or any successor
thereto.]
Β
[GMAC
2004 Servicing Agreement:
The
Servicing Agreement, dated as of April 1, 2004, between Sponsor and GMAC (as
modified pursuant to the related Assignment Agreement).]
Β
[GMAC
2005 Servicing Agreement:
The
Servicing Agreement, dated as of August 5, 2005, between Sponsor and GMAC (as
modified pursuant to the related Assignment Agreement).]
Β
[GreenPoint:
GreenPoint Mortgage Funding, Inc., or any successor thereto.]
Β
[GreenPoint
Servicing Agreement:
Shall
mean the Amended and Restated Master Mortgage Loan Purchase and Servicing
Agreement, dated as of [_______], 2007, between Sponsor and GreenPoint, as
amended (as modified pursuant to the related Assignment
Agreement).]
Β
-
17 -
Β
Group
I Available Distribution Amount:
With
respect to a Distribution Date, the sum of the following amounts that are
related to the Group I Loans:
Β
| Β |
(1)
|
the
total amount of all cash received by or on behalf of each Servicer
with
respect to the Group I Loans by the Determination Date for such
Distribution Date and not previously distributed (including Liquidation
Proceeds, Insurance Proceeds, condemnation proceeds and Subsequent
Recoveries) and with respect to any Distribution Date during the
Pre-Funding Period, any related Capitalized Interest Requirement
for such
Distribution Date, and with respect to any Distribution Date immediately
following the termination of the Pre-Funding Period, any Remaining
Pre-Funded Amount (exclusive of any investment income therein),
except:
|
Β
| Β |
(a)
|
all
scheduled payments of principal and interest collected on the Group
I
Loans but due on a date after the related Due
Date;
|
Β
| Β |
(b)
|
all
Curtailments received with respect to the Group I Loans after the
related
Prepayment Period, together with all interest paid by the Mortgagors
in
connection with such Curtailments;
|
Β
| Β |
(c)
|
all
Payoffs received with respect to the Group I Loans after the related
Prepayment Period, together with all interest paid by the Mortgagors
in
connection with such Payoffs;
|
Β
| Β |
(d)
|
Liquidation
Proceeds, Insurance Proceeds, condemnation proceeds and Subsequent
Recoveries received on the Group I Loans after the related Prepayment
Period;
|
Β
| Β |
(e)
|
all
amounts 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 Custodians pursuant to the terms
of this
Agreement or the Custodial
Agreements;
|
Β
| Β |
(f)
|
reinvestment
income on the balance of funds, if any, in the Protected Accounts,
the
Distribution Account or the Pre-Funding Account;
|
Β
| Β |
(g)
|
any
fees payable to the Master Servicer (including any Master Servicing
Fees),
the Servicers and the Credit Risk Manager with respect to the Group
I
Loans, and any premiums payable in connection with any lender paid
primary
mortgage insurance policies maintained on the Group I Loans;
and
|
Β
| Β |
(h)
|
all
Prepayment Charges received in connection with the Group I
Loans;
|
Β
-
18 -
Β
| Β |
(2)
|
all
Advances made by a Servicer and/or the Master Servicer or the Trustee
with
respect to the Group I Loans for that Distribution Date;
|
Β
| Β |
(3)
|
any
amounts paid as Compensating Interest on the Group I Loans by a Servicer
and/or the Master Servicer for that Distribution Date;
|
Β
| Β |
(4)
|
the
total amount of any cash related to the Group I Loans deposited in
the
Distribution Account in connection with the repurchase of any Group
I Loan
by the Depositor, Sponsor [or AHMC];
and
|
Β
| Β |
(5)
|
the
total amount of any cash related to the Group I Loans deposited in
the
Distribution Account in connection with an optional termination of
the
Trust Fund.
|
Β
Group
I Discount Fraction:
With
respect to any Distribution Date and a Group I Discount Loan, will be a
fraction, the numerator of which is [5.500]% minus the Net Mortgage Rate as
of
the Cut-Off Date of such Group I Discount Loan, and the denominator of which
is
[5.500]%.
Β
Group
I Discount Fractional Principal Amount:
For any
Distribution Date and the Group I Loans will be the aggregate of the following
with respect to each Group I Discount Loan: the Group I Discount Fraction of
the
amounts described in the definition of Principal Distribution Amount, Principal
Prepayment Amount and Liquidation Principal.
Β
Group
I Discount Fractional Principal Shortfall:
For any
Distribution Date (i) prior to the Credit Support Depletion Date, an amount
generally equal to the sum of:
Β
| Β |
(1)
|
the
aggregate of the following with respect to each Group I Discount
Loan: the
Group I Discount Fraction of any loss (meaning a Fraud Loss, Special
Hazard Loss, Bankruptcy Loss or the amount by which the outstanding
Principal Balance thereof exceeded the Liquidation Principal and
Insurance
Proceeds received in respect thereof) on such Group I Discount Loan,
other
than a Special Hazard Loss in excess of the Special Hazard Coverage,
a
Fraud Loss in excess of the Fraud Coverage or a Bankruptcy Loss in
excess
of the Bankruptcy Coverage; and
|
Β
| Β |
(2)
|
the
amounts described in clause (1) above for all prior Distribution
Dates to
the extent not previously distributed,
and
|
Β
(ii)Β for
any
Distribution Date on or after the Credit Support Depletion Date,
zero.
Β
Group
I Discount Loan:
Any
Group I Loan with a Net Mortgage Rate as of the Cut-Off Date of less than
[5.500]% per annum.
Β
Group
I Loans:
Those
Loans having original terms to maturity not greater than thirty (30) years
and
identified on the Loan Schedule as Group I Loans.
Β
-
19 -
Β
Group
I Non-Discount Loan:
Any
Group I Loan with a Net Mortgage Rate as of the Cut-Off Date greater than or
equal to [5.500]% per annum.
Β
Group
I Senior Certificates:
The
Class [___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___]
and
Class
R Certificates.
Β
Group
II Available Distribution Amount:
With
respect to a Distribution Date, the sum of the following amounts that are
related to the Group II Loans:
Β
| Β |
(1)
|
the
total amount of all cash received by or on behalf of each Servicer
with
respect to the Group II Loans by the Determination Date for such
Distribution Date and not previously distributed (including Liquidation
Proceeds, Insurance Proceeds, condemnation proceeds and Subsequent
Recoveries), except:
|
Β
| Β |
(a)
|
all
scheduled payments of principal and interest collected on the Group
II
Loans but due on a date after the related Due
Date;
|
Β
| Β |
(b)
|
all
Curtailments received with respect to the Group II Loans after the
related
Prepayment Period, together with all interest paid by the Mortgagors
in
connection with such Curtailments;
|
Β
| Β |
(c)
|
all
Payoffs received with respect to the Group II Loans after the related
Prepayment Period, together with interest paid by the Mortgagors
in
connection with such Payoffs;
|
Β
| Β |
(d)
|
Liquidation
Proceeds, Insurance Proceeds, condemnation proceeds and Subsequent
Recoveries received on the Group II Loans after the related Prepayment
Period;
|
Β
| Β |
(e)
|
all
amounts 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 Custodians pursuant to the terms
of this
Agreement or the Custodial
Agreements;
|
Β
| Β |
(f)
|
reinvestment
income on the balance of funds, if any, in the Protected Accounts
or the
Distribution Account;
|
Β
| Β |
(g)
|
any
fees payable to the Master Servicer (including any Master Servicing
Fees),
the Servicers and the Credit Risk Manager with respect to the Group
II
Loans, and any premiums payable in connection with any lender paid
primary
mortgage insurance policies maintained on the Group II Loans;
and
|
Β
| Β |
(h)
|
all
Prepayment Charges received in connection with the Group II
Loans;
|
Β
-
20 -
Β
| Β |
(2)
|
All
Advances made by a Servicer and/or the Master Servicer or the Trustee
with
respect to the Group II Loans for that Distribution Date;
|
Β
| Β |
(3)
|
Any
amounts paid as Compensating Interest on the Group II Loans by a
Servicer
and/or the Master Servicer for that Distribution Date;
|
Β
| Β |
(4)
|
The
total amount of any cash related to the Group II Loans deposited
in the
Distribution Account in connection with the repurchase of any Group
II
Loan by the Depositor, Sponsor [or AHMC];
and
|
Β
| Β |
(5)
|
the
total amount of any cash related to the Group II Loans deposited
in the
Distribution Account in connection with an optional termination of
the
Trust Fund.
|
Β
Group
II Discount Fraction:
With
respect to any Distribution Date and a Group II Discount Loan, will be a
fraction, the numerator of which is [5.500]% minus the Net Mortgage Rate as
of
the Cut-Off Date of such Group II Discount Loan, and the denominator of which
is
[5.500]%.
Β
Group
II Discount Fractional Principal Amount:
For any
Distribution Date and the Group II Loans will be the aggregate of the following
with respect to each Group II Discount Loan: the Group II Discount Fraction
of
the amounts described in the definition of Principal Distribution Amount,
Principal Prepayment Amount and Liquidation Principal.
Β
Group
II Discount Fractional Principal Shortfall:
For any
Distribution Date (i) prior to the Credit Support Depletion Date, an amount
generally equal to the sum of:
Β
| Β |
(1)
|
the
aggregate of the following with respect to each Group II Discount
Loan:
the Group II Discount Fraction of any loss (meaning a Fraud Loss,
Special
Hazard Loss, Bankruptcy Loss or the amount by which the outstanding
Principal Balance thereof exceeded the Liquidation Principal and
Insurance
Proceeds received in respect thereof) on such Group II Discount Loan,
other than a Special Hazard Loss in excess of the Special Hazard
Coverage,
a Fraud Loss in excess of the Fraud Coverage or a Bankruptcy Loss
in
excess of the Bankruptcy Coverage;
and
|
Β
| Β |
(2)
|
the
amounts described in clause (1) above for all prior Distribution
Dates to
the extent not previously distributed,
and
|
Β
(ii)Β Β Β for
any
Distribution Date on or after the Credit Support Depletion Date,
zero.
Β
Group
II Discount Loan:
Any
Group II Loan with a Net Mortgage Rate as of the Cut-Off Date of less than
[5.500]% per annum.
Β
Group
II Loans:
Those
Loans having original terms to maturity not greater than thirty (30) years
and
identified on the Loan Schedule as Group II Loans. The aggregate principal
balance of the Group II Loans as of the Cut-Off Date is equal to approximately
$[___].
Β
-
21 -
Β
Group
II Non-Discount Loan:
Any
Group II Loan with a Net Mortgage Rate as of the Cut-Off Date greater than
or
equal to [5.500]% per annum.
Β
Group
II Senior Certificates:
The
Class [___],
Class
[___],
Class
[___],
Class
[___],
Class
[___]
and
Class
[___]
Certificates.
Β
Independent:
When
used with respect to any specified Person, any such Person who (i) is in fact
independent of the Depositor, any Servicer, the Master Servicer and the
Securities Administrator, (ii) does not have any direct financial interest
or
any material indirect financial interest in the Depositor, any Servicer, the
Master Servicer or the Securities Administrator or any Affiliate of the
aforementioned and (iii) is not connected with the Depositor, any Servicer,
the
Master Servicer or the Securities Administrator as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
Β
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.
Β
Initial
Group I Loan:
Any of
the Group I Loans included in the Trust Fund as of the Closing Date. The
aggregate principal balance of the Initial Group I Loans as of the Cut-Off
Date
is equal to $[___].
Β
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.
Β
Interest
Accrual Period:
For the
Certificates other than the Adjustable Rate Certificates will be the calendar
month preceding the month in which that Distribution Date occurs. The Interest
Accrual Period for the Adjustable Rate Certificates will be (a) as to the
Distribution Date in [_______], 200[__], the period commencing on [_______],
200[__], and ending on the day preceding the Distribution Date in [_______],
200[__], and (b) as to any Distribution Date after the Distribution Date in
[_______], 200[__], the period commencing on the Distribution Date in the month
immediately preceding the month in which that Distribution Date occurs and
ending on the day preceding that Distribution Date. Interest on the Certificates
will be calculated based on a 360-day year consisting of twelve 30-day months
regardless of the actual number of days in the related Interest Accrual
Period.
Β
Interest
Distribution Amount:
On any
Distribution Date, for any Class of Certificates (other than the Class
[___],
Class
[___],
Class
[___]
and
Class
[___]
Certificates),
the sum of (i) interest accrued on the related Certificate which shall be equal
to (a) the product of (1) 1/12th
of the
Pass-Through Rate for such Class and (2) the aggregate Certificate Principal
Balance or 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) Net Interest
Shortfalls allocated to such Class pursuant to the definition of βNet Interest
Shortfallβ, including the interest portion of Realized Losses allocated to such
Class pursuant to Section 4.2 and (ii) the amount of interest accrued but unpaid
to such Class from prior Distribution Dates.
Β
-
22 -
Β
Investment
Withdrawal Distribution Date:
As
defined in Section 3.23(c).
Β
Junior
Subordinate Certificates:
The
Class [___],
Class
[___]
and
Class
[___]
Certificates,
collectively.
Β
Last
Scheduled Distribution Date:
The
Distribution Date in December 2035, which is the Distribution Date immediately
following the maturity date for the Loan with the latest maturity
date.
Β
LIBOR:
For the
initial Interest Accrual Period, the Securities Administrator will determine
One-Month LIBOR for such Interest Accrual Period based on information available
on the second Business Day preceding the Closing Date with respect to the
Adjustable Rate Certificates, and for any Interest Accrual Period thereafter,
on
the second Business Day preceding the related Interest Accrual Period, the
one-month rate which appears on the Dow Xxxxx Telerate System, page 3750, as
of
11:00 a.m., London time on the LIBOR Determination Date. If such rate is not
provided, LIBOR shall mean the rate determined by the Securities Administrator
(or a calculation agent on its behalf) in accordance with the following
procedure:
Β
(i)Β The
Securities Administrator on the LIBOR Determination Date will request the
principal London offices of each of four major Reference Banks in the London
interbank market, as selected by the Securities Administrator, to provide the
Securities Administrator with its offered quotation for deposits in United
States dollars for the upcoming one-month period, commencing on the second
LIBOR
Business Day immediately following such LIBOR Determination Date, to prime
banks
in the London interbank market at approximately 11:00 a.m. London time on such
LIBOR Determination Date and in a principal amount that is representative for
a
single transaction in United States dollars in such market at such time. If
at
least two such quotations are provided, LIBOR determined on such LIBOR
Determination Date will be the arithmetic mean of such quotations.
Β
(ii)Β If
fewer
than two quotations are provided, LIBOR determined on such LIBOR Determination
Date will be the arithmetic mean of the rates quoted at approximately 11:00
a.m.
in New York City on such LIBOR Determination Date by three major banks in New
York City selected by the Securities Administrator for one-month United States
dollar loans to lending European banks, in a principal amount that is
representative for a single transaction in United States dollars in such market
at such time; provided, however, that if the banks so selected by the Securities
Administrator are not quoting as mentioned in this sentence, LIBOR determined
on
such LIBOR Determination Date will continue to be LIBOR as then currently in
effect on such LIBOR Determination Date.
Β
The
establishment of LIBOR and each Pass-Through Rate for the Adjustable Rate
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of an Adjustable Rate
Certificate and the Securities Administrator.
Β
-
23 -
Β
LIBOR
Business Day:
Any day
on which dealings in United States dollars are transacted in the London
interbank market.
Β
LIBOR
Determination Date:
The
second LIBOR Business Day before the first day of the related Interest Accrual
Period.
Β
Liquidated
Loan:
A Loan
as to which the related 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.
Β
Liquidation
Principal:
With
respect to any Distribution Date and any Loan Group, the principal portion
of
net Liquidation Proceeds received with respect to each such Loan which became
a
Liquidated Loan (but not in excess of the Principal Balance thereof) during
the
related Prepayment Period.
Β
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 related
Servicer pursuant to the related Servicing Agreement 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 trusteeβs 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, in each case net of any portion thereof that
represents a recovery of principal or interest for which an Advance was made
by
a Servicer or the Master Servicer.
Β
Loan
Documents:
The
documents evidencing or relating to each Loan delivered to the Custodian under
the Custodial Agreement on behalf of the Trustee.
Β
Loan
Group:
The
Group I Loans and Group II Loans, as applicable.
Β
Loan
Schedule:
The
schedule, as amended from time to time, of Loans, attached hereto as Schedule
One, which shall set forth as to each Loan the following, among other
things:
Β
| Β |
(i)
|
the
loan number of the Loan and name of the related
Mortgagor;
|
Β
| Β |
(ii)
|
the
street address of the Mortgaged Property including city, state and
zip
code;
|
Β
| Β |
(iii)
|
the
Mortgage Interest Rate as of the Cut-Off
Date;
|
Β
| Β |
(iv)
|
the
original term and maturity date of the related Mortgage
Note;
|
Β
| Β |
(v)
|
the
original Principal Balance;
|
Β
| Β |
(vi)
|
the
first payment date;
|
Β
-
24 -
Β
| Β |
(vii)
|
the
Monthly Payment in effect as of the Cut-Off
Date;
|
Β
| Β |
(viii)
|
the
date of the last paid installment of
interest;
|
Β
| Β |
(ix)
|
the
unpaid Principal Balance as of the close of business on the Cut-Off
Date;
|
Β
| Β |
(x)
|
the
Loan-to-Value ratio at origination;
|
Β
| Β |
(xi)
|
the
type of property and the Original Value of the Mortgaged
Property;
|
Β
| Β |
(xii)
|
whether
a primary mortgage insurance policy is in effect as of the Cut-Off
Date;
|
Β
| Β |
(xiii)
|
the
nature of occupancy at origination;
|
Β
| Β |
(xiv)
|
the
related Loan Group;
|
Β
| Β |
(xv)
|
the
applicable Servicer; and
|
Β
| Β |
(xvi)
|
the
applicable Custodian.
|
Β
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 βLoanβ. After each Subsequent
Transfer Date, Loans shall include any Subsequent Loans transferred to the
Trust
on such Subsequent Transfer Date.
Β
Loan-to-Value
Ratio:
The
original principal amount of a Loan divided by the Original Value; however,
references to βcurrent Loan-to-Value Ratioβ shall mean the then current
Principal Balance of a Loan divided by the Original Value.
Β
Master
Servicer:
As of
the Closing Date, [Name of Master Servicer] 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
or Affiliates.
Β
Master
Servicer Event of Default:
One or
more of the events described in SectionΒ 7.1 hereof.
Β
Master
Servicing Compensation:
As
defined in Section 3.14(a).
Β
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.
Β
Master
Servicing Fee Rate:
[_____]% per annum.
Β
-
25 -
Β
Monthly
Advance:
As to
any Loan or REO Property, any advance made by a Servicer in respect of any
Determination Date or in respect of any Distribution Date by a successor
Servicer or by the Master Servicer or the Trustee pursuant to Section 4.7 of
this Agreement (which advances shall not include principal or interest
shortfalls due to bankruptcy proceedings or application of the Relief Act or
similar state or local laws.)
Β
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.
Β
Moodyβs:
Xxxxxβx
Investors Service, Inc. or its successor in interest.
Β
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.
Β
Mortgage
File:
The
Loan Documents pertaining to a particular Loan.
Β
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.
Β
Mortgage
Loan Purchase Agreement:
The
Sponsor Mortgage Loan Purchase Agreement [or the AHMC Mortgage Loan Purchase
Agreement, as applicable].
Β
Mortgage
Note:
The
note or other evidence of indebtedness evidencing the indebtedness of a
Mortgagor under a Loan.
Β
Mortgage
Pool:
All of
the Loans.
Β
Mortgaged
Property:
With
respect to any Loan, the real property, together with improvements thereto,
securing the indebtedness of the Mortgagor under the related Loan.
Β
Mortgagor:
The
obligor on a Mortgage Note.
Β
[National
City:
National City Mortgage Co., or any successor thereto.]
Β
[National
City Servicing Agreement:
The
Master Sellerβs Warranties and Servicing Agreement, dated as of JanuaryΒ 1,
2005, between Sponsor and National City, as amended (as modified pursuant to
the
related Assignment Agreement).]
Β
Net
Interest Shortfall:
For any
Distribution Date, the sum of (i) any Prepayment Interest Shortfall for such
Distribution Date, (ii) any Relief Act Interest Shortfall for such Distribution
Date and (iii) the portion of Realized Losses attributable to interest allocated
to the Certificates.
Β
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 related Servicing Fee Rate, the Master
Servicing Fee Rate, the Credit Risk Management Fee Rate and the rate at which
any lender paid mortgage insurance is calculated.
Β
-
26 -
Β
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 4.7, respectively, and
which
was, or is proposed to be, made by such Servicer or the Master
Servicer.
Β
Non-U.S.
Person:
A
Person that is not a U.S. Person.
Β
Notional
Amount:
With
respect to the Class [___]
Certificates
and any Distribution Date, an amount equal to the Certificate Principal Balance
of the Class [___]
Certificates.
For federal income tax purposes the Notional Amount of the Class [___]
Certificates
will equal the Uncertificated Principal Balance of REMIC I Regular Interest
LT-IA1.
Β
With
respect to the Class [___]
Certificates
and any Distribution Date, an amount equal to the aggregate Principal Balance
of
the Group I Loans.
Β
With
respect to the Class [___]
Certificates
and any Distribution Date, an amount equal to the aggregate Principal Balance
of
the Group II Loans.
Β
Officerβs
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.
Β
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 any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
Β
[Original
Capitalized Interest Amount:
The
amount deposited by the Depositor in the Capitalized Interest Account on the
Closing Date, which amount is $[___].]
Β
[Original
Pre-Funded Amount:
The
amount deposited by the Depositor in the Pre-Funding Account on the Closing
Date, which amount is $[___].]
Β
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.
Β
OTS:
The
Office of Thrift Supervision, or any successor thereto.
Β
-
27 -
Β
Ownership
Interest:
With
respect to any 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 pledge.
Β
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.
Β
Pass-Through
Rate:
With
respect to the Class [__] Certificates and the Distribution Date in [_______],
200[__], [___]%
per
annum, and with respect to any Distribution Date thereafter, a per annum rate
equal to the least of (a)Β One-Month LIBOR plus [___]%
and (b)
[___]%.
Β
With
respect to the Class [__] Certificates and the Distribution Date in [_______],
200[__], [___]%
per
annum, and with respect to any Distribution Date thereafter, a per annum rate
equal to the lesser of (i) the excess, if any, of [___]%
over
the Pass-Through Rate applicable to the Class [__] Certificates and (ii)
[___]%,
but
such rate will not be less than zero for any Distribution Date. For federal
income tax purposes, the Pass-Through Rate on the Class [__] Certificates will
be a per annum rate equal the Uncertificated REMIC I Pass-Through Rate on REMIC
I Regular Interest LT-IA1 minus the applicable Pass-Through Rate for the Class
[__] Certificates for such Distribution Date, but will not be less than zero
for
any Distribution Date.
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and the Distribution Date in [_______],
200[__], [___]%
per
annum, and with respect to any Distribution Date thereafter, a per annum rate
equal to the lesser of (a)Β One-Month LIBOR plus [___]%
and (b)
[___]%.
Β
With
respect to the Class [__] Certificates and the Distribution Date in [_______],
200[__], [___]%
per
annum, and with respect to any Distribution Date thereafter, a rate per annum
equal to the excess of (a) [___]%
over
(b) the product of (i) One-Month LIBOR and (ii) [___],
but
such rate will not be less than zero for any Distribution Date.
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and the Distribution Date in [_______],
200[__], [___]%
per
annum, and with respect to any Distribution Date thereafter, a per annum rate
equal to the excess of (i) the weighted average of the Net Mortgage Rates of
the
Group II Loans over (b) [___]%,
but
will not be less than zero on any Distribution Date. For purpose of this
calculation, the Group I Discount Loans are assumed to have a Net Mortgage
Rate
of [___]%.
For
federal income tax purposes the Class [__] Certificates will not have a
Pass-Through Rate but will be entitled to 100% of the amounts distributed on
REMIC I Regular Interest LT-IAIO.
Β
-
28 -
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Class [__] Certificates and the Distribution Date in [_______],
200[__], [___]%
per
annum, and with respect to any Distribution Date thereafter, a per annum rate
equal to the excess of (i) the weighted average of the Net Mortgage Rates of
the
Group II Loans over (b) [___]%,
but
will not be less than zero on any Distribution Date. For the purpose of this
calculation, the Group II Discount Loans are assumed to have a Net Mortgage
Rate
of [___]%.
For
federal income tax purposes the Class [__] Certificates will not have a
Pass-Through Rate but will be entitled to 100% of the amounts distributed on
REMIC I Regular Interest LT-IIAIO.
Β
With
respect to the Class R Certificates and any Distribution Date, [___]%
per
annum.
Β
With
respect to the Subordinate Certificates and any Distribution Date, [___]%
per
annum.
Β
Payoff:
Any
voluntary 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.
Β
Percentage
Interest:
With
respect to any Class of Certificates (other than the Residual Certificates)
and
any date of determination, the undivided percentage ownership in such Class
evidenced by such Certificate, expressed as a percentage, the numerator of
which
is the initial Certificate Principal Balance or Notional Amount represented
by
such Certificate and the denominator of which is the aggregate initial
Certificate Principal Balance or Notional Amount of all of the Certificates
of
such Class. Each Certificate is issuable only in minimum Percentage Interests
corresponding to the Authorized Denomination of the related Class of
Certificates; provided, however, that a single Certificate of each such Class
of
Certificates may be issued having a Percentage Interest corresponding to the
remainder of the aggregate initial Certificate Principal Balance or Notional
Amount of such Class or to an otherwise Authorized Denomination for such Class
plus such remainder. With respect to any Residual Certificate, the undivided
percentage ownership in such Class evidenced by such Certificate, is as set
forth on the face of such Certificate.
Β
-
29 -
Β
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 farmersβ
cooperatives described in Code Section 521) which is 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 βdisqualified organizationβ
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 (which shall
not
be an expense of the Securities Administrator or the Trustee) that the transfer
of an Ownership Interest in a Residual Certificate to such Person may cause
any
REMIC hereunder to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms βUnited States,β βStateβ and βInternational
Organizationβ 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 Xxxxxxx Mac,
a
majority of its board of directors is not selected by such governmental
unit.
Β
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.
Β
Plan:
As
defined in Section 5.2.
Β
Plan
Assets:
As
defined in Section 5.2.
Β
[Pre-Funding
Account:
The
account established and maintained pursuant to SectionΒ 3.26.]
Β
[Pre-Funding
Period:
The
period from the Closing Date until the earlier of (i) the date on which the
amounts on deposit in the Pre-Funding Account (exclusive of investment income)
is reduced to zero or (ii) [_______], 200[__].]
Β
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.
Β
Prepayment
Charge:
With
respect to any Principal Prepayment, any prepayment premium, penalty or charge
payable by a Mortgagor in connection with any Principal Prepayment on a Loan
pursuant to the terms of the related Mortgage Note, as set forth on the
Prepayment Charge Schedule.
Β
-
30 -
Β
Prepayment
Charge Schedule:
As of
any date, the list of Loans providing for a Prepayment Charge included in the
Trust Fund on such date, attached hereto as Schedule Two (including the
prepayment charge summary attached thereto). The Depositor shall deliver or
cause the delivery of the Prepayment Charge Schedule to the Master Servicer,
the
Trustee and the Credit Risk Manager on the Closing Date. The Prepayment Charge
Schedule shall set forth the following information with respect to each
Prepayment Charge:
Β
| Β |
(i)
|
the
Loan identifying number;
|
Β
| Β |
(ii)
|
a
code indicating the type of Prepayment
Charge;
|
Β
| Β |
(iii)
|
the
date on which the first Monthly Payment was due on the related Mortgaged
Loan;
|
Β
| Β |
(iv)
|
the
term of the related Prepayment
Charge;
|
Β
| Β |
(v)
|
the
original Principal Balance of the related Loan;
and
|
Β
| Β |
(vi)
|
the
Principal Balance of the related Loan as of the Cut-Off
Date.
|
Β
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 monthβs 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.
Β
Prepayment
Period:
For any
Distribution Date is (i) with respect to the Loans serviced by [National City],
the period commencing on the second day of the month preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in
which such Distribution Date occurs, (ii) with respect to the Loans serviced
by
[GreenPoint], the Loans serviced by [Xxxxx Fargo], the Loans serviced by
[American Home] and the Loans serviced by [GMAC pursuant to the GMAC 2004
Servicing Agreement], the calendar month immediately preceding the month in
which such Distribution Date occurs and (iii) with respect to the Loans serviced
by [GMAC pursuant to the GMAC 2005 Servicing Agreement], the period commencing
on the 16th day of the month preceding the month in which such Distribution
Date
occurs and ending on the 15th day of the month in which such Distribution Date
occurs.
Β
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 or Subsequent
Cut-Off Date, as applicable, after deduction of all principal payments due
on or
before the Cut-Off Date or Subsequent Cut-Off Date, as applicable, whether
or
not received, reduced by the principal portion of all amounts received with
respect to such Loan after the Cut-Off Date or Subsequent Cut-Off Date, as
applicable, 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, βPrincipal Balanceβ shall mean, at the time of any
determination, the principal balance of such Substitute Loan on the related
Cut-Off Date or Subsequent Cut-Off Date, as applicable, reduced by the principal
portion of all amounts received with respect to such Loan after the Cut-Off
Date
or Subsequent Cut-Off Date, as applicable, and distributed or to be distributed
to Certificateholders through the Distribution Date in the month of
determination. The Principal Balance of a Liquidated Loan shall be
zero.
Β
-
31 -
Β
Principal
Distribution Amount:
With
respect to any Distribution Date and a Loan Group, the sum of:
Β
| Β |
(1)
|
scheduled
principal payments on the Loans in the related Loan Group due during
the
related Due Period;
|
Β
| Β |
(2)
|
the
principal portion of repurchase proceeds received with respect to
the
Loans in the related Loan Group which were repurchased as permitted
or
required by this Agreement during the related Prepayment Period;
and
|
Β
| Β |
(3)
|
any
other unscheduled payments of principal which were received on the
Loans
in the related Loan Group during the related Prepayment Period, other
than
Payoffs, Curtailments or Liquidation
Principal.
|
Β
Principal
Prepayment:
Any
payment of principal on a Loan which constitutes a Payoff or a
Curtailment.
Β
Principal
Prepayment Amount:
On any
Distribution Date and for any Loan Group, the sum of (i) Curtailments received
during the related Prepayment Period, (ii) Payoffs received during the related
Prepayment Period and (iii) Liquidation Proceeds, Insurance Proceeds and
Subsequent Recoveries received during the related Prepayment Period.
Β
Pro
Rata Allocation:
On any
Distribution Date with respect to (a) the allocation of the principal portion
of
certain losses relating to a Loan to the related Senior Certificates (other
than
the Class [__], Class [__], Class [__], Class [__] and Class [__] Certificates)
and/or to the Subordinate Certificates, as applicable, pro rata according to
their respective aggregate Certificate Principal Balances on such date of
allocation (except that if the loss is incurred with respect to a Group I
Discount Loan, the Group I Discount Fraction of such loss will be allocated
to
the Class [__] Certificates, and the remainder of such loss will be allocated
as
described above in this definition without regard to this parenthetical and
if
the loss is incurred with respect to a Group II Discount Loan, the Group II
Discount Fraction of such loss will be allocated to the Class [__] Certificates,
and the remainder of such loss will be allocated as described above in this
definition without regard to this parenthetical); provided that (i) the Pro
Rata
Allocation of any such loss allocable to the Class [__] Certificates and Class
[__] Certificates will be allocated first to the Class [__] Certificates, up
to
a maximum amount of $[__] with respect to the Class [__] Certificates, and
up to
a maximum amount of $[__] with respect to the Class [__] Certificates, until
the
Certificate Principal Balance of the Class [__] Certificates has been reduced
to
zero, and then to the Class [__] Certificates and Class [__] Certificates,
respectively, until the Certificate Principal Balance of each such Class has
been reduced to zero, and (ii) the Pro Rata Allocation of any such loss
allocable to the Class [__] Certificates will be allocated first to the Class
[__] Certificates until the Certificate Principal Balance of the Class [__]
Certificates has been reduced to zero, and then to the Class [__] Certificates
until the Certificate Principal Balance of the Class [__] Certificates has
been
reduced to zero, and (b) the allocation of interest portion of certain losses
relating to a Loan to the related Senior Certificates (other than the Class
[__]
Certificates and Class [__] 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 of interest accrued but unpaid on such
Distribution Date has been reduced to zero and then pro rata, according to
their
outstanding Certificate Principal Balances in reduction thereof until the
Certificate Principal Balances thereof have been reduced to zero; provided
that
(i) the Pro Rata Allocation of any such loss allocable to the Class [__]
Certificates and Class [__] Certificates will be allocated first to the Class
[__] Certificates up to a maximum amount of $[__] with respect to the Class
[__]
Certificates, and up to a maximum amount of $[__] with respect to the Class
[__]
Certificates, until the Certificate Principal Balance of the Class [__]
Certificates has been reduced to zero, and then to the Class [__] Certificates
and Class [__] Certificates until the Certificate Principal Balance of each
such
Class has been reduced to zero, and (ii) the Pro Rata Allocation of any such
loss allocable to the Class [__] Certificates will be allocated first to the
Class [__] Certificates, until the Certificate Principal Balance of the Class
[__] Certificates has been reduced to zero, and then to the Class [__]
Certificates, until the Certificate Principal Balance of the Class [__]
Certificates has been reduced to zero.
Β
-
32 -
Β
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.
Β
Purchase
Obligation:
An
obligation of the Depositor, Sponsor [or AHMC] to repurchase Loans under the
circumstances and in the manner provided in Section 2.3.
Β
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 Officersβ Certificate from the Master Servicer to the Trustee
and the Securities Administrator, an amount equal to the sum of (i) 100% of
the
Principal Balance thereof as of the date of purchase (or in the case of an
REO
Property being purchased as provided in SectionΒ 9.1, 100% of the fair
market value of such REO Property), (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 advanced 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 advanced 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 and any costs and damages incurred by
the
Trust Fund in connection with any violation by any such Loan of any predatory
or
abusive lending law.
Β
-
33 -
Β
Rating
Agency:
Initially, each of Xxxxxβx and S&P; thereafter, each nationally recognized
statistical rating organization that has rated the Certificates at the request
of the Depositor, or their respective successors in interest.
Β
Ratings:
As of
any date of determination, the ratings, if any, of the Certificates as assigned
by each Rating Agency.
Β
Realized
Loss:
With
respect to any Distribution Date and any Liquidated 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, including net Liquidation Proceeds, have been applied thereto) and
the principal portion of Nonrecoverable Advances with respect to such Loan
which
have been reimbursed from amounts received in respect of the Loans in such
Loan
Group other than the related Loan, and (ii) the accrued interest on such Loan
remaining unpaid and the interest portion of Nonrecoverable Advances with
respect to such Loan which have been reimbursed from amounts received in respect
of the Loans in such Loan Group other than the related 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. In addition, to the extent a Servicer receives Subsequent Recoveries
with respect to any defaulted Loan, the amount of the Realized Loss with respect
to that defaulted Loan will be reduced to the extent such recoveries are applied
to reduce the Certificate Principal Balance of any Class of Certificates on
any
Distribution Date.
Β
Record
Date:
With
respect to the Adjustable Rate Certificates, the Business Day prior to the
related Distribution Date and with respect to the Certificates other than the
Adjustable Rate Certificates, the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs.
Β
Reference
Banks:
Xxxxxxxβx 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.
Β
Regular
Interest Certificates:
The
Certificates, other than the Class R Certificates.
Β
Regulation
S Permanent Global Certificate:
As
defined in Section 5.1.
Β
Regulation
S Temporary Global Certificate:
As
defined in Section 5.1.
Β
Release
Date: The
40th
day
after the later of (i) commencement of the offering of the Certificates and
(ii)
the Closing Date.
Β
-
34 -
Β
Relief
Act:
The
Servicemembers Relief Act of 2003, as amended, or similar state or local
laws.
Β
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.
Β
[Remaining
Pre-Funded Amount:
With
respect to any Group I Loans, an amount equal to the Original Pre-Funded Amount
minus the amount equal to 100% of the aggregate outstanding Principal Balance
of
the Subsequent Loans transferred to such Loan Group during the Pre-Funding
Period.]
Β
REMIC:
A βreal
estate mortgage investment conduitβ within the meaning of Section 860D of the
Code.
Β
REMIC
Opinion:
An
Opinion of Counsel stating that, under the REMIC Provisions, any contemplated
action will not cause any 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).
Β
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
Β
REMIC
Regular Interests:
Any of
the REMIC I Regular Interests or Regular Interest Certificates.
Β
REMIC
I:
The
segregated pool of assets, with respect to which a REMIC election is to be
made,
consisting of: (i) the Loans (exclusive of payments of principal and interest
due on or before the Cut-Off Date, if any, received by the Master Servicer
which
shall not constitute an asset of the Trust Fund) as from time to time are
subject to this Agreement and all payments under and proceeds of such Loans
(exclusive of any late payment charges received on the Loans), together with
all
documents included in the related Mortgage File, subject to Section 2.1; (ii)
such funds or assets as from time to time are deposited in the Distribution
Account and belonging to the Trust Fund; (iii) any REO Property in respect
of a
Loan; (iv) the primary hazard insurance policies, if any, the primary insurance
policies, if any, and all other insurance policies with respect to the Loans;
(v) the Depositorβs interest in respect of the representations and warranties
made by Sponsor in the Sponsor Mortgage Loan Purchase Agreement as assigned
to
the Trustee pursuant to Section 2.1 hereof; and (vi) the Depositorβs interest in
respect of the representations and warranties made by [AHMC in the AHMC Mortgage
Loan Purchase Agreement] as assigned to the Trustee pursuant to Section 2.1
hereof. Notwithstanding the foregoing, however, REMIC I specifically excludes
the Class [___]
Reserve
Fund, the Cap Contract, the Pre-Funding Account, the Capitalized Interest
Account and any payments made thereunder.
Β
-
35 -
Β
REMIC
I Regular Interests:
Β Any
of
the separate non-certificated beneficial ownership interests in REMIC I (as
defined in the Preliminary Statement) issued hereunder and designated as a
Regular Interest in REMIC I. Each REMIC I Regular Interest (other than REMIC
I
Regular Interest LT-IAPO, REMIC I Regular Interest LT-IIAPO, REMIC I Regular
Interest LT-P1 and REMIC I Regular Interest LT-P2) shall accrue interest at
the
related Uncertificated REMIC I Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal (other than REMIC I Regular
Interest LT-IAIO and REMIC I Regular Interest LT-IIAIO) subject to the terms
and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
Β
REMIC
II:
The
pool of assets consisting of the REMIC I Regular Interests and all payments
of
principal or interest on or with respect to the REMIC I Regular Interests after
the Cut-Off Date.
Β
REMIC
II Certificates:
The
Group I Senior Certificates, Group II Senior Certificates, Class P Certificates
and Subordinate Certificates.
Β
Remittance
Report:
A
report by the Securities Administrator pursuant to
SectionΒ 4.6.
Β
REO
Disposition:
The
sale or other disposition of an REO Property on behalf of REMIC I.
Β
REO
Imputed Interest:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of REMIC I, one monthβs 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.
Β
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.
Β
Residual
Certificateholder:
The
registered Holder of a Class R Certificate.
Β
Residual
Certificates:
The
Class R Certificates. Components R-1 and R-2 of the Class R Certificates are
hereby designated as the sole Class of βresidual interestsβ in each of REMIC I
and REMIC II, respectively.
Β
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 officerβs 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 officer to whom such matter is referred because of such officerβs
knowledge of and familiarity with the particular subject.
Β
-
36 -
Β
S&P:
Standard & Poorβs, a division of The McGraw Hill Companies, Inc., provided,
that at any time it is a Rating Agency.
Β
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.
Β
Securities
Act:
The
Securities Act of 1933, as amended.
Β
Securities
Administrator:
As of
the Closing Date, Xxxxx Fargo Bank, 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 or Affiliates.
Β
Senior
Certificates:
The
Class [__], Class [__], Class [__], Class [__], Class [__], Class [__], Class
[__], Class [__], Class [__], Class [__], Class [__], Class [__], Class [__],
Class [__], Class [__], Class [__] and Class R Certificates.
Β
Senior
Interest Shortfall Amount:
For any
Distribution Date and the Senior Certificates of a Loan Group (other than the
Class [__] Certificates and Class [__] Certificates) will be equal to that
amount by which the Interest Distribution Amount payable to the related Senior
Certificates (other than the Class [__] Certificates and Class [__]
Certificates) on such Distribution Date exceeds the related Available
Distribution Amount.
Β
Senior
Liquidation Amount:
For any
Distribution Date and a Loan Group, the aggregate with respect to each related
Loan which became a Liquidated Loan during the related Prepayment Period, of
the
lesser of: (i) the related Senior Percentage of the Principal Balance of such
Loan (exclusive of the Group I Discount Fraction thereof, if such Loan is a
Group I Discount Loan or the Group II Discount Fraction thereof, if such Loan
is
a Group II Discount Loan), and (ii) the related Senior Prepayment Percentage
of
the Liquidation Principal with respect to such Loan (exclusive of the Group
I
Discount Fraction thereof, if such Loan is a Group I Discount Loan or the Group
II Discount Fraction thereof, if such Loan is a Group II Discount
Loan).
Β
-
37 -
Β
Senior
Percentage:
As of
the Closing Date, [__]%, with respect to the Group I Loans, and [__]% with
respect to the Group II Loans; thereafter, for any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the aggregate
Certificate Principal Balance of the related Senior Certificates (other than
the
Class [__], Class [__], Class [__], Class [__] and Class [__] Certificates),
immediately preceding such Distribution Date, and the denominator of which
is
the aggregate Scheduled Principal Balance of the Loans in such Loan Group,
in
each case as of the first day of the related Due Period (exclusive of the Group
I Discount Fraction of any such Loan, if such Loan is a Group I Discount Loan
or
the Group II Discount Fraction of any such Loan, if such Loan is a Group II
Discount Loan).
Β
Senior
Prepayment Percentage:
For any
Loan Group and any Distribution Date, the percentage indicated in the following
table:
Β
|
Distribution
Date Occurring In
|
Β |
Senior
Prepayment Percentage
|
|
[________]
through [________]Β
|
Β |
100%
|
|
[________]
through [________]Β
|
Β |
Senior
Percentage + 70% of the Subordinate Percentage
|
|
[________]
through [________]Β
|
Β |
Senior
Percentage + 60% of the Subordinate Percentage
|
|
[________]
through [________]Β
|
Β |
Senior
Percentage + 40% of the Subordinate Percentage
|
|
[________]
through [________]Β
|
Β |
Senior
Percentage + 20% of the Subordinate Percentage
|
|
[________]
and thereafterΒ
|
Β |
Senior
Percentage
|
Notwithstanding
the foregoing, the Senior Prepayment Percentage with respect to each Loan Group,
will be equal to 100% on any Distribution Date on which (i) the Aggregate Senior
Percentage for that Distribution Date exceeds the Aggregate Senior Percentage
as
of the Closing Date or (ii) the aggregate Scheduled Principal Balance of the
Loans (including Loans in bankruptcy, foreclosure and related REO Property)
which are 60 or more days delinquent (averaged over the preceding six-month
period), as a percentage of the Aggregate Subordinate Amount, is equal to or
greater than 50% as of such Distribution Date, or cumulative Realized Losses
on
the Loans allocated to the Subordinate Certificates are greater than the
following amounts:
Β
|
Distribution
Date Occurring In
|
Β |
Percentage
of the Aggregate Subordinate
Amount
as of the Cut-Off Date
|
|
[________]
through [________]Β
|
Β |
30%
|
|
[________]
through [________]Β
|
Β |
35%
|
|
[________]
through [________]Β
|
Β |
40%
|
|
[________]
through [________]Β
|
Β |
45%
|
|
[________]
and thereafterΒ
|
Β |
50%
|
-
38 -
If
on any
Distribution Date the allocation to the Senior Certificates of a Loan Group
(other than the Class [__], Class [__], Class [__], Class [__] and Class [__]
Certificates) of Principal Prepayments in the percentage required would reduce
the sum of the aggregate Certificate Principal Balances of the related Senior
Certificates (other than the Class [__], Class [__], Class [__], Class [__]
and
Class [__] Certificates) below zero, the Senior Prepayment Percentage for such
Distribution Date shall be limited to the percentage necessary to reduce such
sum to zero.
Β
Senior
Principal Distribution Amount:
With
respect to any Distribution Date and a Loan Group, the sum of the following
for
that Distribution Date:
Β
| Β |
(1)
|
the
related Senior Percentage of the related Principal Distribution Amount
(exclusive of the portion thereof attributable to the Group I Discount
Fractional Principal Amount or the portion thereof attributable to
the
Group II Discount Fractional Principal Amount, as
applicable);
|
Β
| Β |
(2)
|
the
related Senior Prepayment Percentage of the related Principal Prepayment
Amount (exclusive of the portion thereof attributable to the Group
I
Discount Fractional Principal Amount or the portion thereof attributable
to the Group II Discount Fractional Principal Amount, as applicable);
and
|
Β
| Β |
(3)
|
the
related Senior Liquidation Amount.
|
Β
Servicer:
[National City, GreenPoint, GMAC, Xxxxx Fargo or American Home], as applicable,
or any successor appointed under the applicable Servicing
Agreement.
Β
Servicer
Credit Risk Management Agreement:
As
defined in SectionΒ 3.1.
Β
Servicer
Remittance Date:
With
respect to each Distribution Date shall mean (i)Β with respect to [National
City, American Home and GMAC], 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,
(ii) with respect to [GreenPoint], the 10th
day of
the calendar month in which such Distribution Date occurs or, if such
10th
day is
not a Business Day, the Business Day immediately preceding such 10th
day and
(iii)Β with respect to [Xxxxx Fargo], the 22nd
day of
the calendar month in which such Distribution Date occurs or, if such
22nd
day is
not a Business Day, the Business Day immediately preceding such 22nd
day.
Β
Servicing
Advances:
The
customary reasonable and necessary βout-of-pocketβ costs and expenses incurred
prior to or on or after the Cut-Off Date by the related Servicer in connection
with a default, delinquency or other unanticipated event by the related 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.
Β
-
39 -
Β
Servicing
Agreement:
[The
National City Servicing Agreement, the GreenPoint Servicing Agreement, the
GMAC
2004 Servicing Agreement, the GMAC 2005 Servicing Agreement, the Xxxxx Fargo
Servicing Agreement and the American Home Servicing Agreement], each as modified
by the related Assignment Agreement.
Β
Servicing
Criteria:
The
βservicing criteriaβ set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Β
Servicing
Fee:
With
respect to each Loan and for any Distribution Date, an amount equal to one
twelfth of the product of the related 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.
Β
Servicing
Fee Rate:
As set
forth in the related Servicing Agreement.
Β
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, the Depositor 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.
Β
Shift
Percentage:
Shall
be 0% for the first 5 years following the Closing Date, 30% in the sixth year
following the Closing Date, 40% in the seventh year following the Closing Date,
60% in the eighth year following the Closing Date, 80% in the ninth year
following the Closing Date and 100% for any year thereafter.
Β
Special
Hazard Coverage: As
of the
Cut-Off Date $[________].
On each
Anniversary, the Special Hazard Coverage will be reduced to an amount equal
to
the lesser of:
Β
| Β |
(1)
|
the
greatest of:
|
Β
| Β |
(a)
|
the
aggregate Principal Balance of the Loans located in the zip code
containing the largest aggregate Principal Balance of the
Loans;
|
Β
| Β |
(b)
|
1.0%
of the aggregate Principal Balance of the Loans;
and
|
Β
-
40 -
Β
| Β |
(c)
|
twice
the Principal Balance of the largest Loan, calculated as of the Due
Date
in the immediately preceding month (after giving effect to all scheduled
payments whether or not received);
and
|
Β
| Β |
(2)
|
the
Special Hazard Coverage as of the Cut-Off Date as reduced by the
Special
Hazard Losses allocated to the Certificates since the Cut-Off
Date.
|
Β
Special
Hazard Loss:
The
occurrence of any direct physical loss or damage to a Mortgaged Property
relating to a Liquidated Loan, 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.
Β
Sponsor:
DB
Structured Products, Inc., or its successor in interest, in its capacity as
seller under the Sponsor Mortgage Loan Purchase Agreement and in its capacity
as
assignor under the Assignment Agreements [(other than the American Home
Assignment Agreement)].
Β
Sponsor
Mortgage Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of [_______], 200[__] between the
Depositor and Sponsor.
Β
Startup
Day:
With
respect to each REMIC, the day designated as such pursuant to Section 10.1(b)
hereof.
Β
Subordinate
Certificates:
The
Class M Certificates and Class B Certificates.
Β
Subordinate
Liquidation Amount:
For a
Distribution Date and a Loan Group, the excess, if any, of (i) the aggregate
Liquidation Principal for all Loans in such Loan Group which became Liquidated
Loans during the related Prepayment Period, over (ii) the related Senior
Liquidation Amount for such Distribution Date and the Group I Discount Fraction
of Liquidation Principal with respect to Group I Discount Loans or the Group
II
Discount Fraction of Liquidation Principal with respect to Group II Discount
Loans, as applicable, received during the related Prepayment Period.
Β
-
41 -
Β
Subordinate
Percentage:
For any
Distribution Date and a Loan Group, 100% minus the related Senior Percentage
for
such date. As of the Closing Date, the Subordinate Percentage will be [__]%
with
respect to the Group I Loans, and [__]% with respect to the Group II
Loans.
Β
Subordinate
Prepayment Percentage:
For any
Distribution Date, 100% minus the related Senior Prepayment Percentage. As
of
the Closing Date, the Subordinate Prepayment Percentage will be 0% for each
Loan
Group.
Β
Subordinate
Principal Distribution Amount:
With
respect to any Distribution Date and a Loan Group, an amount equal to the sum
of
the following for that Distribution Date:
Β
| Β |
(1)
|
the
related Subordinate Percentage of the related Principal Distribution
Amount (exclusive of the portion thereof attributable to the Group
I
Discount Fractional Principal Amount or the portion thereof attributable
to the Group II Discount Fractional Principal Amount, as
applicable);
|
Β
| Β |
(2)
|
the
related Subordinate Principal Prepayment Amount (exclusive of the
portion
thereof attributable to the Group I Discount Fractional Principal
Amount
or the portion thereof attributable to the Group II Discount Fractional
Principal Amount, as applicable);
and
|
Β
| Β |
(3)
|
the
related Subordinate Liquidation
Amount.
|
Β
provided,
however, that the Subordinate Principal Distribution Amount for the Group I
Loans shall be reduced by the amounts required to be distributed to the Class
[___]
Certificates
with respect to the Group I Discount Fractional Principal Shortfall on such
Distribution Date and the amounts required to be distributed to the Senior
Certificates of a Loan Group in connection with any Collateral Deficiency
Amount; provided further that the Subordinate Principal Distribution Amount
for
the Group II Loans shall be reduced by the amounts required to be distributed
to
the Class [___]
Certificates
with respect to the Group II Discount Fractional Principal Shortfall on such
Distribution Date and the amounts required to be distributed to the Senior
Certificates of a Loan Group in connection with any Collateral Deficiency
Amount. Any reduction in the Subordinate Principal Distribution Amount pursuant
to the foregoing proviso shall offset the amount calculated pursuant to clause
(1), clause (3) and clause (2) above, in that order.
Β
Subordinate
Principal Prepayment Amount:
For any
Distribution Date and a Loan Group, the related Subordinate Prepayment
Percentage of the Principal Prepayment Amount for such Distribution Date
(exclusive of the portion thereof attributable to the Group I Discount
Fractional Principal Amount for that Distribution Date or the portion thereof
attributable to the Group II Discount Fractional Principal Amount for that
Distribution Date, as applicable).
Β
Subordination
Level:
On any
specified date with respect to any Class of Subordinate Certificates, the
percentage obtained by dividing: (1) the sum of the aggregate Certificate
Principal Balances of all Classes of Subordinate Certificates which are
subordinate in right of payment to such Class as of such date, before giving
effect to distributions of principal or allocations of related Realized Losses
on such date; by (2) the sum of the aggregate Certificate Principal Balances
of
all Classes of Certificates (other than the Class [__], Class [__] and Class
[__] Certificates) as of such date, before giving effect to distributions of
principal or allocations of related Realized Losses on such date.
Β
-
42 -
Β
[Subsequent
Cut-off Date:
With
respect to those Subsequent Loans sold to the Trust pursuant to a Subsequent
Transfer Instrument, the later of (i) first day of the month in which the
related Subsequent Transfer Date occurs or (ii) the date of origination of
such
Loan.]
Β
[Subsequent
Loan:
A Loan
sold by the Depositor to the Trust Fund during the Pre-Funding Period pursuant
to SectionΒ 2.6, such Loan being identified on the Loan Schedule attached to
a Subsequent Transfer Instrument and assigned to the Group I
Loans.]
Β
[Subsequent
Loan Purchase Agreement:
The
agreement between the Depositor and Sponsor, regarding the transfer of the
Subsequent Loans by Sponsor to the Depositor.]
Β
Subsequent
Recoveries:
With
respect to any Distribution Date, all amounts received during the related
Prepayment Period by the related Servicer specifically related to a defaulted
Loan or disposition of an REO Property prior to the related Prepayment Period
that resulted in a Realized Loss, after the liquidation or disposition of such
defaulted Loan.
Β
[Subsequent
Transfer Date:
With
respect to each Subsequent Transfer Instrument, the date on which the related
Subsequent Loans are transferred to the Trust Fund.]
Β
[Subsequent
Transfer Instrument:
Each
Subsequent Transfer Instrument, dated as of a Subsequent Transfer Date, executed
by the Trustee and the Depositor substantially in the form attached hereto
as
Exhibit E, by which Subsequent Loans are transferred to the Trust
Fund.]
Β
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 βqualified mortgageβ as defined in the REMIC Provisions and (viii)
conform to each representation and warranty set forth in Section 6 of the
related 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
Substitute Loan, the risk gradings described in clause (vi) hereof shall be
satisfied as to each such Substitute Loan and, except to the extent otherwise
provided in this sentence, the representations and warranties described in
clauses (vii) and (viii) hereof must be satisfied as to each Substitute Loan
or
in the aggregate, as the case may be.
Β
-
43 -
Β
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 βtax matters personβ for
REMIC I and REMIC II within the meaning of Section 6231(a)(7) of the Code.
Β
Termination
Price:
As
defined in Section 9.1.
Β
Transferee:
Any
Person who is acquiring by an Ownership Interest in a Junior Subordinate
Certificate or Residual Certificate.
Β
Trust
Fund:
Collectively, all of the assets of REMIC I, REMIC II, the Cap Contract, the
Class I-A-1 Reserve Fund, the Pre-Funding Account, the Capitalized Interest
Account and any amounts on deposit therein and any proceeds
thereof.
Β
Trust
REMIC:
Any of
REMIC I or REMIC II.
Β
Trustee:
[Name
of Trustee,] or its successor in interest, or any successor trustee appointed
as
herein provided.
Β
Uncertificated
Accrued Interest:
With
respect to each REMIC Regular Interest on each Distribution Date, an amount
equal to one monthβs interest at the related Uncertificated Pass-Through Rate on
the Uncertificated Principal Balance of such REMIC Regular Interest. In each
case, Uncertificated Accrued Interest will be reduced by any Prepayment Interest
Shortfalls and shortfalls resulting from application of the Relief
Act.
Β
Uncertificated
Principal Balance:
With
respect to each REMIC Regular Interest, the principal amount of such REMIC
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC Regular Interest shall
equal the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Sections 4.1 and 4.3, as applicable and, if and
to
the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses, as provided in Sections 4.2. The
Uncertificated Principal Balance of each REMIC Regular Interest shall never
be
less than zero.
Β
Uncertificated
REMIC I Pass-Through Rate:
With
respect to REMIC I Regular Interests XX-XX0, XX-XX0, XX-XX0, XX-XX0, XX-XX0,
XX-XX0, XX-XXX0, XX-XXX0, XX-XXX0, XX-XXX0, LT-M, XX-X0, XX-X0, XX-X0, XX-X0,
XX-X0 and LT-R [5.50]% per annum. With respect to REMIC I Regular Interest
LT-IAIO, the percentage equivalent of a fraction the numerator of which is
equal
to the product of (i) the excess of (a) the weighted average of the Net Mortgage
Rates of the Group I Non-Discount Loans over (b) [5.500]% and (ii) the aggregate
Principal Balance of the Group I Non-Discount Loans and the denominator of
which
is equal to the aggregate Principal Balance of the Group I Loans. With respect
to REMIC I Regular Interest LT-IIAIO, the percentage equivalent of a fraction
the numerator of which is equal to the product of (i) the excess of (a) the
weighted average of the Net Mortgage Rates of the Group II Non-Discount Loans
over (b) [5.500]% and (ii) the aggregate Principal Balance of the Group II
Non-Discount Loans and the denominator of which is equal to the aggregate
Principal Balance of the Group II Loans. With respect to REMIC I Regular
Xxxxxxxxx XX-X0, XX-X0, XX-XXXX and LT-IIAPO, [0.00]%.
Β
-
44 -
Β
Underwriter:
Deutsche Bank Securities Inc.
Β
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.
Β
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 United States
federal income tax purposes) created or organized in, or under the laws of,
the
United States or any state thereof or the District of Columbia (except, in
the
case of a partnership, to the extent provided in regulations) or an estate
whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more 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.
Β
Verification
Agent:
As
defined in SectionΒ 3.28.
Β
Verification
Report:
As
defined in SectionΒ 3.28.
Β
Xxxxx
Fargo:
Xxxxx
Fargo Bank, National Association, or any successor thereto.
Β
[Xxxxx
Fargo Custodial Agreement:
The
Custodial Agreement dated as of [_______], 200[__], among the Trustee, Xxxxx
Fargo as Custodian and as a Servicer, National City and GreenPoint as such
agreement may be amended or supplemented from time to time.]
Β
[Xxxxx
Fargo Servicing Agreement:
Shall
mean the Sellerβs Warranties and Servicing Agreement, dated as of May 1, 2005,
between Sponsor and Xxxxx Fargo, as amended (as modified pursuant to the related
Assignment Agreement).]
Β
Section
1.2Β Allocation
of Certain Interest Shortfall.
Β
-
45 -
Β
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls incurred in respect of the Loans for any
Distribution Date shall be allocated to the REMIC I Regular Interests, pro
rata,
to the extent of one monthβs interest at the then applicable respective
Uncertificated REMIC I Pass-Through Rate on the Uncertificated Principal Balance
of each such REMIC I Regular Interest.
Β
-
46 -
ARTICLE
II
CONVEYANCE
OF TRUST FUND;
ORIGINAL
ISSUANCE OF CERTIFICATES
Β
Section
2.1Β 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
Agreements, the Servicing Agreements, the Assignment Agreements, the Subsequent
Mortgage Loan Purchase Agreement and such assets as shall from time to time
be
credited or a required by the terms of this Agreement to be credited to the
Pre-Funding Account and Capitalized Interest Account, (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 REMIC I. 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 Agreements and the Assignment Agreements (with copies of the related
Servicing Agreements attached thereto).
Β
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with the applicable Custodian pursuant to the applicable
Custodial Agreement the documents with respect to each Loan as described under
Section 2 of the applicable Custodial Agreement (the βLoan Documentsβ). In
connection with such delivery and as further described in the applicable
Custodial Agreement, the applicable Custodian will be required to review such
Loan Documents and deliver to the Trustee, the Depositor, the Master Servicer
and Sponsor [or AHMC, as applicable], certifications (in the forms attached
to
the applicable Custodial Agreement) with respect to such review with exceptions
noted thereon. In addition, the Depositor under the Custodial Agreements 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 Custodians as more
particularly set forth therein.
Β
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of the Mortgage Files, including, but not limited to certain
insurance policies and documents contemplated by Section 3.12, and preparation
and delivery of the certifications shall be performed by the Custodians pursuant
to the terms and conditions of the Custodial Agreements.
Β
The
Depositor shall deliver or cause the related originator to deliver to the
related Servicer copies of all trailing documents required to be included in
the
related Mortgage File at the same time the originals or certified copies thereof
are delivered to the Trustee or applicable Custodian, such documents including
the mortgagee policy of title insurance and any Loan Documents upon return
from
the recording office. The Servicers shall not be responsible for any custodian
fees or other costs incurred in obtaining such documents and the Depositor
shall
cause the Servicers to be reimbursed for any such costs the Servicers may incur
in connection with performing its obligations under this Agreement.
Β
-
47 -
Β
The
Loans
permitted by the terms of this Agreement to be included in the Trust are limited
to (i) Loans (which the Depositor acquired pursuant to the Mortgage Loan
Purchase Agreements, which contains, among other representations and warranties,
a representation and warranty of Sponsor [or AHMC, as applicable,] that no
Loan
sold by it to the Depositor is a βHigh-Cost Home Loanβ as defined in the New
Jersey Home Ownership Act effective November 27, 2003, as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004, as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices
Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9))
and
(ii) Substitute Loans (which, by definition as set forth herein and referred
to
in the Mortgage Loan Purchase Agreements, are required to conform to, among
other representations and warranties, the representation and warranty of the
Sponsor [or AHMC, as applicable,] that no Substitute Loan sold by it to the
Depositor is a βHigh-Cost Home Loanβ as defined in the New Jersey Home Ownership
Act effective November 27, 2003, as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004, as defined in the Massachusetts
Predatory Home Loan Practices Act, effective November 7, 2004 (Mass. Xxx. Laws
Ch. 183C) or as defined in the Indiana Home Loan Practices Act, effective
January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9)). The Depositor
and the Trustee on behalf of the Trust understand and agree that it is not
intended that any mortgage loan be included in the Trust that is a βHigh-Cost
Home Loanβ as defined in the New Jersey Home Ownership Act effective November
27, 2003, as defined in the New Mexico Home Loan Protection Act effective
January 1, 2004, as defined in the Massachusetts Predatory Home Loan Practices
Act, effective November 7, 2004 (Mass. Xxx. Laws Ch. 183C) or as defined in
the
Indiana Home Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx.
Sections 24-9-1 through 24-9-9).
Β
Section
2.2Β Acceptance
by Trustee.
The Trustee acknowledges receipt, subject to the provisions of Section 2.1
hereof and Section 2 of the Custodial Agreements, of the Loan Documents and
all
other assets included in the definition of βREMIC Iβ under clauses (i), (ii),
(to the extent of amounts deposited into the Distribution Account), (iv) and
(v)
and declares that it holds (or the applicable 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 applicable Custodian on its behalf
holds) or will hold all such assets and such other assets included in the
definition of βREMIC Iβ in trust for the exclusive use and benefit of all
present and future Certificateholders.
Β
Section
2.3Β Repurchase
or Substitution of Loans.
Β
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48 -
Β
(a)Β 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 Sponsor [or AHMC,
as applicable], of any representation, warranty or covenant under the [related]
Mortgage Loan Purchase Agreement in respect of any Loan that materially and
adversely affects the value of such Loan or the interest therein of the
Certificateholders, the Trustee or the applicable Custodian shall promptly
notify Sponsor [or AHMC, as applicable], of such defect, missing document or
breach and request that Sponsor [or AHMC, as applicable], deliver such missing
document, cure such defect or breach within sixty (60) days from the date
Sponsor [or AHMC, as applicable], was notified of such missing document, defect
or breach, and if Sponsor [or AHMC, as applicable], 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 Sponsor [or AHMC,
as
applicable], under the [related] Mortgage Loan Purchase Agreement to repurchase
such Loan from REMIC I at the Purchase Price within ninety (90) days after
the
date on which Sponsor [or AHMC, as applicable], was notified of such missing
document, defect or breach, if and to the extent that Sponsor [or AHMC, as
applicable], is obligated to do so under the [related] 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 applicable
Custodian of a properly completed request for release for such Loan in the
form
of Exhibit
3
to the
applicable Custodial Agreement, shall release or cause the applicable Custodian
to release to Sponsor [or AHMC, as applicable], 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
Sponsor [or AHMC, as applicable], shall furnish to it and as shall be necessary
to vest in Sponsor [or AHMC, as applicable], 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 [related] Mortgage Loan Purchase Agreement, Sponsor [or AHMC,
as
applicable], may cause such Loan to be removed from REMIC I (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 Sponsor [and AHMC] to cure or
to
repurchase (or to substitute for) any Loan sold by it to the Depositor 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. Notwithstanding the foregoing, if the representation
made by Sponsor [or AHMC, as applicable], in Section 6(xxiv) of the [related]
Mortgage Loan Purchase Agreement is breached, the Trustee shall enforce the
obligation of Sponsor [or AHMC, as applicable], to repurchase such Loan at
the
Purchase Price, or to provide a Substitute Loan (plus any costs and damages
incurred by the Trust Fund in connection with any violation by any such Loan
of
any predatory or abusive lending law) within ninety (90) days after the date
on
which Sponsor [or AHMC, as applicable,] was notified of such
breach.
Β
In
addition, promptly upon the earlier of discovery by the Master Servicer or
receipt of notice from a Servicer or Sponsor [or AHMC, as applicable,] to a
Responsible Officer of the Master Servicer of the breach of the representation
of Sponsor [or AHMC, as applicable,] set forth in Section 5(x) of the [related]
Mortgage Loan Purchase Agreement which materially and adversely affects the
interests of the Holders of the Certificates in any Prepayment Charge, the
Master Servicer shall promptly notify Sponsor [or AHMC, as applicable,] and
the
Trustee of such breach. The Trustee shall enforce the obligations of Sponsor
[or
AHMC, as applicable,] under the [related] Mortgage Loan Purchase Agreement
to
remedy such breach to the extent and in the manner set forth in the [related]
Mortgage Loan Purchase Agreement.
Β
(b)Β 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 REMIC I.
Β
-
49 -
Β
As
to any
Deleted Loan for which Sponsor [or AHMC, as applicable,] substitutes a
Substitute Loan or Loans, such substitution shall be effected by Sponsor [or
AHMC, as applicable,] delivering to the Trustee or the applicable 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 applicable Custodial Agreement, as applicable, together with an
Officersβ Certificate providing that each such applicable Substitute Loan
satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection with such substitution.
The
applicable Custodian on behalf of the Trustee shall acknowledge receipt of
such
Substitute Loan or Loans and, within ten (10) 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 applicable Custodial Agreement, with any
applicable exceptions noted thereon. Within one year of the date of
substitution, the applicable Custodian on behalf of the Trustee shall deliver
to
the Depositor, the Trustee and the Master Servicer a final certification
pursuant to the applicable Custodial Agreement with respect to such Substitute
Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments
due with respect to Substitute Loans in the month of substitution are not part
of REMIC I and shall be retained by Sponsor [or AHMC, as applicable]. 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 Sponsor [or AHMC, as applicable,] 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 [related] Mortgage Loan Purchase Agreement including all
applicable representations and warranties thereof included herein or in the
[related] Mortgage Loan Purchase Agreement.
Β
For
any
month in which Sponsor [or AHMC, as applicable,] substitutes one or more
Substitute Loans for one or more Deleted Loans, the Master Servicer shall
determine the amount (the βSubstitution Shortfall Amountβ), 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 monthβs 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, Sponsor [or AHMC, as
applicable,] 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 applicable
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 applicable Custodian of a properly completed request for release
for such Loan in the form of Exhibit
3
to the
applicable Custodial Agreement, shall release to Sponsor [or AHMC, as
applicable,] the related Mortgage File or Files and the Trustee shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as Sponsor [or AHMC, as applicable,]
shall
deliver to it and as shall be necessary to vest therein any Deleted Loan
released pursuant hereto.
Β
-
50 -
Β
In
addition, Sponsor [or AHMC, as applicable,] shall obtain at its own expense
and
deliver to the Trustee, the Master Servicer, the Securities Administrator and
the Depositor an Opinion of Counsel to the effect that such substitution will
not cause (a) any federal tax to be imposed on any REMIC, including without
limitation, any federal tax imposed on βprohibited transactionsβ under Section
860F(a)(1) of the Code or on βcontributions after the startup dateβ under
Section 860G(d)(1) of the Code, or (b) any REMIC to fail to qualify as a REMIC
at any time that any Certificate is outstanding.
Β
(c)Β Upon
discovery by the Depositor, Sponsor, [AHMC,] the Master Servicer or the Trustee
that any Loan does not constitute a βqualified mortgageβ within the meaning of
Section 860G(a)(3) of the Code, the party discovering such fact shall within
two
(2) Business Days give written notice thereof to the other parties. In
connection therewith, Sponsor [or AHMC, as applicable,] shall repurchase or
substitute one or more Substitute Loans for the affected Loan within ninety
(90)
days of the earlier of discovery or receipt of such notice with respect to
such
affected Loan. Such repurchase or substitution shall be made by (i) Sponsor
[or
AHMC, as applicable,] if the affected Loanβs status as a non-qualified mortgage
is or results from a breach of any representation, warranty or covenant made
by
Sponsor [or AHMC, as applicable,] under the [related] Mortgage Loan Purchase
Agreement or (ii) the Depositor, if the affected Loanβs 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 Sponsor [, AHMC]
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.
Β
(d)Β Within
ninety (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 related Certificateholders in any Loan
or
Prepayment Charge, the Master Servicer shall cure such breach in all material
respects.
Β
Section
2.4Β Authentication
and Delivery of Certificates; Designation of Certificates as REMIC Regular
Interests and Residual Interests.
Β
(a)Β 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.
Β
(b)Β This
Agreement shall be construed so as to carry out the intention of the parties
that each of REMIC I and REMIC II be treated as a REMIC at all times prior
to
the date on which the Trust Fund is terminated. The βregular interestsβ (within
the meaning of Section 860G(a)(1) of the Code) in REMIC II shall consist of
the
Class [___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___],
Class
[___]and
Class
[___]Certificates.
The βresidual interestβ (within the meaning of Section 860G(a)(2) of the Code)
in REMIC II shall consist of Component R-2. The βregular interestsβ (within the
meaning of Section 860G(a)(1) of the Code) of REMIC I shall consist of the
REMIC
I Regular Interests. The βresidual interestβ (within the meaning of Section
860(G)(a)(2) of the Code) of REMIC I shall consist of ComponentΒ R-1.
Β
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51 -
Β
Section
2.5Β 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:
Β
(a)Β 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;
Β
(b)Β 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, 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 creditorsβ rights generally and by
general principles of equity;
Β
(c)Β 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 (i) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (ii) 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
Servicerβs knowledge, would in the future materially and adversely affect, (A)
the ability of the Master Servicer to perform its obligations under this
Agreement or (B) the business, operations, financial condition, properties
or
assets of the Master Servicer taken as a whole;
Β
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52 -
Β
(d)Β 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;
Β
(e)Β 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;
Β
(f)Β There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (i) that might
prohibit its entering into this Agreement, (ii) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (iii) 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
Β
(g)Β No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation 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.
Β
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.
Β
Section
2.6Β [Conveyance
of Subsequent Loans.]
Β
(a)Β Subject
to the conditions set forth in paragraph (b) below, in consideration of the
Securities Administratorβs delivery, on behalf of the Trustee, on the Subsequent
Transfer Dates to or upon the order of the Depositor of all or a portion of
the
balance of funds in the Pre-Funding Account, the Depositor shall on any
Subsequent Transfer Date sell, transfer, assign, set over and convey without
recourse to the Trust Fund but subject to the other terms and provisions of
this
Agreement all of the right, title and interest of the Depositor in and to (i)
the Subsequent Loans identified on the Loan Schedule attached to the related
Subsequent Transfer Instrument delivered by the Depositor on such Subsequent
Transfer Date, (ii) all interest accruing thereon on and after the Subsequent
Cut-Off Date and all collections in respect of interest and principal due after
the Subsequent Cut-Off Date and (iii) all items with respect to such Subsequent
Loans to be delivered pursuant to SectionΒ 2.1 and the other items in the
related Mortgage Files; provided, however, that the Depositor reserves and
retains all right, title and interest in and to principal received and interest
accruing on the Subsequent Loans prior to the related Subsequent Cut-Off Date.
The transfer to the Trustee for deposit in the Trust Fund by the Depositor
of
the Subsequent Loans identified on the Loan Schedule shall be absolute and
is
intended by the Depositor, the Trustee and the Certificateholders to constitute
and to be treated as a sale of the Subsequent Loans by the Depositor to the
Trust Fund. The related Mortgage File for each Subsequent Loan shall be
delivered to the Trustee (or the applicable Custodian on its behalf) at least
three (3) Business Days prior to the related Subsequent Transfer
Date.
Β
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53 -
Β
The
purchase price paid by the Trustee on behalf of the Trust Fund from amounts
released from the Pre-Funding Account shall be one-hundred percent (100%) of
the
aggregate Principal Balance of the related Subsequent Loans so transferred
(as
identified on the Loan Schedule provided by the Depositor). This Agreement
shall
constitute a fixed-price purchase contract in accordance with
SectionΒ 860G(a)(3)(A)(ii) of the Code.
Β
(b)Β The
Depositor shall transfer to the Trustee for deposit in the Trust Fund the
Subsequent Loans and the other property and rights related thereto as described
in paragraph (a) above, and the Securities Administrator shall release funds
from the Pre-Funding Account only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
Β
(i)Β the
Depositor shall have provided the Trustee, the Securities Administrator and
the
Rating Agencies with a timely addition notice substantially in the form set
forth on Exhibit D hereto (an βAddition Noticeβ) and shall have provided any
information reasonably requested by the Trustee with respect to the Subsequent
Loans;
Β
(ii)Β the
Depositor shall have delivered to the Trustee and the Securities Administrator
a
duly executed Subsequent Transfer Instrument, substantially in the form of
Exhibit E, which shall include a Loan Schedule listing the Subsequent Loans,
and
Sponsor shall have delivered a computer file acceptable to the Trustee and
the
Securities Administrator containing such Loan Schedule to the Trustee and the
Securities Administrator at least three (3) Business Days prior to the related
Subsequent Transfer Date;
Β
(iii)Β as
of
each Subsequent Transfer Date, as evidenced by delivery of the Subsequent
Transfer Instrument, the Depositor shall not be insolvent nor shall it have
been
rendered insolvent by such transfer nor shall it be aware of any pending
insolvency;
Β
(iv)Β such
sale
and transfer shall not result in a material adverse tax consequence to the
Trust
Fund or the Certificateholders;
Β
(v)Β the
Pre-Funding Period shall not have terminated;
Β
(vi)Β the
Depositor shall not have selected the Subsequent Loans in a manner that it
believed to be adverse to the interests of the Certificateholders;
Β
(vii)Β the
Depositor shall have delivered to the Trustee (with a copy to the Securities
Administrator) a Subsequent Transfer Instrument confirming the satisfaction
of
the conditions precedent specified in this SectionΒ 2.6 and, pursuant to the
Subsequent Transfer Instrument, assigned to the Trustee without recourse for
the
benefit of the Certificateholders all the right, title and interest of the
Depositor, in, to and under the Subsequent Mortgage Loan Purchase Agreement,
to
the extent of the Subsequent Loans;
Β
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54 -
Β
(viii)Β the
Depositor shall have delivered to the Trustee an Opinion of Counsel addressed
to
the Trustee and the Rating Agencies with respect to the transfer of the
Subsequent Loans substantially in the form of the Opinion of Counsel delivered
to the Trustee on the Closing Date regarding the true sale of the Subsequent
Loans; and
Β
(ix)Β [GMAC]
or
a successor to [GMAC], appointed in accordance with the terms of this Agreement,
is the servicer of the Subsequent Loans.
Β
(c)Β Each
Subsequent Loan that has been identified and is expected to be sold to the
trust
on the related Subsequent Transfer Date will have the characteristics set forth
below as of the Cut-Off Date. In addition, the obligation of the Trust Fund
to
purchase any Subsequent Loan that has not been identified on the Cut-Off Date,
but is sold to the Trust during the Pre-Funding Period, is subject to the
satisfaction of the conditions set forth in the immediately preceding paragraph
and the accuracy of the following representations and warranties with respect
to
each such Subsequent Loan determined as of the applicable Subsequent Transfer
Date: (i) such Subsequent Loan may not be fifty-nine (59) or more days
delinquent as of the last day of the month preceding the Subsequent Cut-Off
Date; (ii) the servicer of each Subsequent Loan will be [GMAC] (or its
successor); (iii) such Subsequent Loan will be secured by a first lien; (iv)
the
original term to stated maturity of such Subsequent Loan will be no less than
[___] months; (v) the latest maturity date of any Subsequent Loan will be no
later than [_______]; (vi) no Subsequent Loan will have a first payment date
occurring after [_______], 2007; (vii) such Subsequent Loan will have a credit
score of not less than [____]; (viii) such Subsequent Loan will not have a
loan-to-value ratio greater than [___]%; and (ix) such Subsequent Loan will
not
have a principal balance greater than $[______].
Β
(d)Β As
of
each Subsequent Cut-Off Date, the aggregate of the Subsequent Loans identified
and expected to be sold to the trust on the related Subsequent Transfer Date,
including any Subsequent Loans that have not been identified on the Cut-Off
Date
and are sold to the trust during the Pre-Funding Period, will satisfy the
following criteria: (i) have a weighted average credit score greater than
approximately [___]; (ii) have no less than approximately [___]% of the
Mortgaged Properties be owner occupied; (iii) have no less than approximately
[___]% of the Mortgaged Properties be single family detached or planned unit
developments; (iv) have no more than approximately [___]% of the Subsequent
Loan
be cash out refinance; (v) have a weighted average remaining term to stated
maturity of less than approximately [___] months; (vi) have a weighted average
loan-to-value ratio of not more than approximately [___]%; (vii) no more than
approximately [___]% of the Subsequent Loan by aggregate principal balance
will
be concentrated in one state; and (viii) be acceptable to the Rating
Agencies.
Β
(e)Β Notwithstanding
the foregoing, any Subsequent Loan may be rejected by any Rating Agency if
the
inclusion of any such Subsequent Loan would adversely affect the ratings of
any
Class of Certificates. At least one (1) Business Day prior to the Subsequent
Transfer Date, each Rating Agency shall notify the Trustee and the Securities
Administrator as to which Subsequent Loans, if any, shall not be included in
the
transfer on the Subsequent Transfer Date; provided, however, that Sponsor shall
have delivered to each Rating Agency at least three (3) Business Days prior
to
such Subsequent Transfer Date a computer file acceptable to each Rating Agency
describing the characteristics specified in paragraphs (c) and (d)
above.]
Β
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55 -
Β
Section
2.7Β Establishment
of the Trust.
Β
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 βDeutsche Mortgage Securities, Inc. Mortgage Loan Trust,
Series 200[__]-[__]β and does hereby appoint [Name of Trustee], as Trustee in
accordance with the provisions of this Agreement.
Β
Section
2.8Β Purpose
and Powers of the Trust.
Β
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
Β
(a)Β acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
Β
(b)Β to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
Β
(c)Β to
make
payments on the Certificates;
Β
(d)Β to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
Β
(e)Β subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
Β
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.8 may not be amended,
without the consent of the Certificateholders evidencing 51% or more of the
aggregate voting rights of the Certificates.
Β
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ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE LOANS; ACCOUNTS
Β
Section
3.1Β 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 Servicerβs 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 Servicerβs 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 Servicersβ and Master Servicerβs records, and
based on such reconciled and corrected information, prepare the statements
specified in Section 4.6 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.
Β
Notwithstanding
anything in this Agreement or any Servicing Agreement to the contrary, the
Master Servicer shall not have any duty or obligation to enforce any Credit
Risk
Management Agreement that a Servicer is a party to (a βServicer Credit Risk
Management Agreementβ) or to supervise, monitor or oversee the activities of the
Credit Risk Manager under any such Servicer Credit Risk Management Agreement
with respect to any action taken or not taken by the applicable Servicer
pursuant to a recommendation of the Credit Risk Manager.
Β
The
Trustee shall furnish the Servicers and the Master Servicer with any limited
powers of attorney and other documents, each in a form acceptable 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.
Β
The
Trustee, the Custodians 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 Custodians or the Securities Administrator; provided,
however, that, unless otherwise required by law, none of the Trustee, the
Custodians 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 Custodians 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 Trusteeβs, a Custodianβs or the
Securities Administratorβs actual costs.
Β
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57 -
Β
The
Trustee shall execute and deliver to the related Servicer or the Master Servicer
upon request any court pleadings, requests for trusteeβs 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 trusteeβs 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. The Trustee shall have no
responsibility for the willful malfeasance or any wrongful or negligent actions
taken by the Master Servicer or any Servicer in respect of any document
delivered by the Trustee under this paragraph, and the Trustee 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.
Β
Section
3.2Β REMIC-Related
Covenants.
For as long as each REMIC shall exist, the Trustee and the Securities
Administrator shall treat each REMIC as a REMIC, and the Trustee and the
Securities Administrator shall comply with any directions of Sponsor, [AHMC,]
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 Agreement, the Assignment
Agreements or Section 2.3 of this Agreement, as applicable, accept any
contribution to any 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.
Β
Section
3.3Β 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 Servicerβs activities, the Master Servicer may rely upon an
officerβs certificate of any Servicer with regard to such Servicerβs 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 Sponsor, [AHMC] and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate; provided, however that if defaulting Servicer is Xxxxx Fargo,
the
Trustee shall issue such notice or take such other action as it deems
appropriate.
Β
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58 -
Β
(b)Β 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 (other than Xxxxx Fargo)
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 that if
the
defaulting servicer is Xxxxx Fargo, the Trustee shall terminate the rights
and
obligations of such Servicer and enter into a new Servicing Agreement with
a
successor servicer selected by it provided, further that, it is understood
and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed ninety (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 remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer or
the
Trustee, as applicable, in its good faith business judgment, would require
were
it the owner of the related Loans. The Master Servicer or the Trustee, as
applicable shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer or the Trustee, as applicable shall not be required
to
prosecute or defend any legal action except to the extent that the Master
Servicer shall have received indemnity reasonably acceptable to it for its
costs
and expenses in pursuing such action.
Β
(c)Β To
the
extent that the costs and expenses of the Master Servicer related to any
termination of an 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 related 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 or the Trustee, as applicable shall be entitled to reimbursement
of such costs and expenses from the Distribution Account.
Β
(d)Β The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
Β
(e)Β 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.
Β
Section
3.4Β Fidelity
Bond.
The Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy that would meet the
requirements of Xxxxxx Mae or Xxxxxxx Mac, affording coverage with respect
to
all directors, officers, employees and other Persons acting on such Master
Servicerβs behalf, and covering errors and omissions in the performance of the
Master Servicerβs 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. Any such errors
and omissions policy and fidelity bond may not be cancelable without thirty
(30)
daysβ prior written notice to the Trustee.
Β
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59 -
Β
Section
3.5Β 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 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 any 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 any REMIC to fail to qualify as a REMIC or result in the imposition
of
a tax upon any REMIC. The Trustee shall furnish the Master Servicer, upon
written request from a Servicing Officer, with any powers of attorney, in form
acceptable to the Trustee, empowering the Master Servicer or the related
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 the related 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 or any other executed documents
delivered by the Trustee pursuant to this paragraph 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 βdoing businessβ 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.
Β
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60 -
Β
Section
3.6Β 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.
Β
Section
3.7Β Release
of Mortgage Files.
Β
(a)Β Upon
becoming aware of a Payoff with respect to any Loan, or the receipt by any
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes for payment to Certificateholders on the next
Distribution Date, the applicable ServicerΒ will
(or if the applicable Servicer does not, the Master Servicer may), if required
under the applicable Servicing Agreement, promptly furnish to the applicable
Custodian, on behalf of the Trustee, two copies of a request for release
substantially in the form attached to the applicable 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 applicable Custodian, on behalf of the Trustee, deliver to the applicable
ServicerΒ the
related Mortgage File. Upon receipt of such certification and request, the
applicable Custodian, on behalf of the Trustee, shall promptly release the
related Mortgage File to the applicable Servicer and the Trustee and applicable
Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such Payoff, each ServicerΒ 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.
Β
(b)Β 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 applicable
Custodian, on behalf of the Trustee, shall, upon the request of a Servicer
or
the Master Servicer, and delivery to the applicable
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
applicable
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 related
Servicer or the Master Servicer, as applicable. Such request for release shall
obligate such Servicer or the Master Servicer to return the Mortgage File to
the
applicable
Custodian on behalf of the Trustee, when the need therefor by the related
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 applicable
Custodian, on behalf of the Trustee, to such Servicer or the Master
Servicer.
Β
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61 -
Β
Section
3.8Β Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
Β
(a)Β The
Master Servicer and each Servicer (to the extent required by the related
Servicing Agreement) shall transmit to the Trustee or the applicable
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 Agreement,
to
be delivered to the Trustee or the applicable
Custodian. Any funds received by the Master Servicer or a Servicer in respect
of
any Loan or which otherwise are collected by the Master Servicer or a Servicer
as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries in respect
of any Loan shall be held for the benefit of the Trustee and the related
Certificateholders subject to the Master Servicerβs 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.
Β
(b)Β All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or any 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 or such Servicer,
as
applicable, for and on behalf of the Trustee and the related 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.
Β
Section
3.9Β Standard
Hazard Insurance and Flood Insurance Policies.
Β
(a)Β 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.
Β
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Β
(b)Β Pursuant
to Section 3.23, 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, 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 Section 3.24.
Β
Section
3.10Β 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 related Certificateholders all claims under any insurance
policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insuredβs 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).
Β
Section
3.11Β Maintenance
of the Primary Mortgage Insurance Policies.
Β
(a)Β 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 or 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.
Β
(b)Β 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
related 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 Sections 3.22 and 3.23, any amounts
collected by the Master Servicer or any Servicer under any primary mortgage
insurance policies shall be deposited by the related Servicer in its Protected
Account or by the Master Servicer in the Distribution Account, subject to
withdrawal pursuant to Section 3.22 or 3.24, as applicable.
Β
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63 -
Β
Section
3.12Β 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 have been distributed in full and the Master Servicer otherwise
has
fulfilled its obligations under this Agreement, the Trustee or the applicable
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 applicable Custodial Agreement. The Master Servicer shall promptly deliver
or cause to be delivered to the Trustee or the applicable 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.
Β
Section
3.13Β 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.
Β
Section
3.14Β Compensation
for the Master Servicer.
Β
(a)Β The
Master Servicer shall have the right to receive all income and gain realized
from any investment of funds in the Distribution Account as compensation
(collectively, the βMaster Servicing Compensationβ). Servicing compensation in
the form of assumption fees, if any, late payment charges, as collected, if
any,
or otherwise (but not including any Prepayment Charges) shall be retained by
the
applicable Servicer and shall not be deposited in the related 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.
Β
(b)Β The
amount of the Master Servicing Compensation payable to the Master Servicer
in
respect of any Distribution Date shall be reduced in accordance with Section
3.20.
Β
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64 -
Β
Section
3.15Β REO
Property.
Β
(a)Β 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 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 REMIC I, unless (i) the Trustee and the Securities
Administrator 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 βprohibited
transactionsβ of any REMIC hereunder as defined in Section 860F of the Code or
cause any 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 βnet income from foreclosure propertyβ or cause such REO Property to fail
to qualify as βforeclosure propertyβ within the meaning of Section 860G(a)(8) of
the Code.
Β
(b)Β 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.
Β
(c)Β The
Master Servicer or the related Servicer, as applicable, 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.
Β
(d)Β 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 or 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.
Β
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Β
Section
3.16Β Annual
Statement as to Compliance.
Β
(a)Β The
Master Servicer will deliver to the Trustee, not later than February 28 of
each
calendar year beginning in 2008, an Officersβ Certificate (an βAnnual Statement
of Complianceβ) stating, as to each signatory thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year and of
performance under this Agreement or other applicable servicing agreement has
been made under such Servicing Officersβ supervision and (ii) to the best of
such officersβ knowledge, based on such review, the Master Servicer has
fulfilled all of its obligations under this Agreement or other applicable
servicing agreement in all material respects throughout such year, or, if there
has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such Servicing Officer and the nature
and
status of cure provisions thereof. Such Annual Statement of Compliance shall
contain no restrictions or limitations on its use. In the event that the Master
Servicer has delegated any servicing responsibilities with respect to the
Mortgage Loans to a servicer, the Master Servicer shall deliver an Officerβs
Certificate of the servicer as described above as to each servicer as and when
required with respect to the Master Servicer.
Β
(b)Β If
the
Master Servicer cannot deliver the related Annual Statement of Compliance by
February 28th of such year, the Trustee, at its sole option, may permit a cure
period for the Master Servicer to deliver such Annual Statement of Compliance,
but in no event later than March 10th of such year.
Β
(c)Β Failure
of the Master Servicer to comply timely with this Section 3.16 shall be deemed
a
Master Servicer Event of Default, automatically, without notice and without
any
cure period, and the Trustee may, in addition to whatever rights the Trustee
may
have under this Agreement and at law or in equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supercede any other provision in this
Agreement or any other agreement to the contrary.
Β
Section
3.17Β Assessments
of Compliance and Attestation Reports.
Β
(a)Β On
and
after January 1, 2008, the Master Servicer shall service and administer the
Mortgage Loans in accordance with all applicable requirements of the Servicing
Criteria. The Master Servicer shall deliver to the Trustee on or before February
28 of each calendar year beginning in 2008, a report (an βAssessment of
Complianceβ) reasonably satisfactory to the Trustee regarding the Master
Servicerβs assessment of compliance with the Servicing Criteria during the
preceding calendar year as required by Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122 of Regulation AB, which as of the date hereof, require a
report by an authorized officer of the Master Servicer that contains the
following:
Β
(i)Β A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Master Servicer;
Β
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Β
(ii)Β A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the Master
Servicer;
Β
(iii)Β An
assessment by such officer of the Master Servicerβs compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the Master Servicer, that are backed by the same
asset type as the Mortgage Loans;
Β
(iv)Β A
statement that a registered public accounting firm has issued an attestation
report on the Master Servicerβs Assessment of Compliance for the period
consisting of the preceding calendar year; and
Β
(v)Β A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Master Servicer, which statement shall be based on the activities it
performs with respect to asset-backed securities transactions taken as a whole
involving the Master Servicer, that are backed by the same asset type as the
Mortgage Loans.
Β
(b)Β Such
report at a minimum shall address each of the Servicing Criteria specified
on a
certification substantially in the form of Exhibit F hereto delivered to the
Trustee concurrently with the execution of this Agreement.
Β
(c)Β On
or
before February 28 of each calendar year beginning in 2008, the Master Servicer
shall furnish to the Trustee a report (an βAttestation Reportβ) by a registered
public accounting firm that attests to, and reports on, the Assessment of
Compliance made by the Master Servicer, as required by Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122(b) of Regulation AB, which Attestation Report
must be made in accordance with standards for attestation reports issued or
adopted by the Public Company Accounting Oversight Board.
Β
(d)Β The
Master Servicer shall cause any servicer, and each subcontractor determined
by
the Master Servicer to be βparticipating in the servicing functionβ within the
meaning of Item 1122 of Regulation AB, to deliver to the Trustee and the
Depositor an assessment of compliance and accountantsβ attestation.
Β
(e)Β If
the
Master Servicer cannot deliver the related Assessment of Compliance or
Attestation Report by February 28th of such year, the Trustee, at its sole
option, may permit a cure period for the Master Servicer to deliver such
Assessment of Compliance or Attestation Report, but in no event later than
March
10th of such year.
Β
(f)Β Failure
of the Master Servicer to comply timely with this Section 3.17 shall be deemed
a
Master Servicer Event of Default, automatically, without notice and without
any
cure period, and the Trustee may, in addition to whatever rights the Trustee
may
have under this Agreement and at law or in equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supercede any other provision in this
Agreement or any other agreement to the contrary.
Β
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Β
Section
3.18Β Reports
Filed with Securities and Exchange Commission.
Β
(a)Β (i)
Within 15 days after each Distribution Date, the Master Servicer shall, in
accordance with industry standards, file with the Securities and Exchange
Commission via the Electronic Data Gathering and Retrieval System (βXXXXXβ), a
Distribution Report on Form 10-D with a copy of the monthly statement to be
furnished by the Trustee to the Certificateholders for such Distribution Date
and detailing all data elements specified in Item 1121(a) of Regulation AB
as an
exhibit thereto; provided that the Trustee shall have received no later than
10
days prior to the date such Distribution Report on Form 10-D is required to
be
filed, the following information:
Β
(1)Β Notice
of
any material modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time from the Master Servicer;
Β
(2)Β Notice
of
any material breaches of Mortgage Loan representations or warranties or
transaction covenants from the Master Servicer;
Β
(3)Β Notice
of
any new issuance of asset-backed securities backed by the same asset pool,
any
pool asset changes, such as Mortgage Loan substitutions and repurchases, and
cash flows available for future purchases, if applicable from the Master
Servicer.
Β
(4)Β A
brief
description of any legal proceedings pending, including proceedings known to
be
contemplated by governmental authorities, against the Depositor, the Sponsor
and
the Master Servicer or of which any property of the foregoing is the subject,
that is material to Certificateholders from each of the Depositor, Sponsor
and
the Master Servicer if applicable;
Β
(5)Β The
information required by Item 2 of Part II of Form 10-Q regarding any sale of
securities that are either backed by the same asset pool or are otherwise issued
by the issuer, regardless of whether the transaction was registered under the
Securities Act during the period covered by the report, from the
Depositor;
Β
(6)Β The
information required by Item 3 of Part II of Form 10-Q with respect to defaults
upon the senior securities during the period covered by the report, from the
Master Servicer;
Β
(7)Β The
information required by Item 4 of Part II of Form 10-Q with respect to
submission of matters to a vote of Certificateholders during the period covered
by the report, from the Master Servicer;
Β
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Β
(8)Β Any
information required to be disclosed in a report on Form 8-K during the period
covered by the report on the Form 10-D, but not reported, whether or not
otherwise required by the Form 10-D from the Master Servicer; and
Β
(9)Β Any
exhibits to the Form 10-D from the Depositor.
Β
(ii)Β The
Master Servicer will prepare and file Current Reports on Form 8-K in respect
of
the Trust at the direction and expense of the Depositor, provided, that, the
Depositor, the Sponsor or the Trustee shall have timely notified the Master
Servicer of an item reportable on a Current Report on Form 8-K and shall have
delivered to the Master Servicer no later than two Business Days prior to the
filing deadline for such Current Report, all information, data, and exhibits
required to be provided or filed with such Current Report with respect
to:
Β
(1)Β Any
entry
into a material definitive agreement, any termination of a material definitive
agreement and any bankruptcy or receivership of the Depositor, Sponsor or the
Master Servicer (including any servicer that does not sign the pooling and
servicing agreement and any subservicer that signs a subservicing agreement)
from the Depositor, Sponsor or the Master Servicer as applicable;
Β
(2)Β A
description of any triggering events that accelerate or increase a direct
financial obligation or an obligation under an off-balance sheet arrangement
from the Master Servicer;
Β
(3)Β Any
material modification to the rights of Certificateholders, amendments of the
articles of incorporation or bylaws or a change of the fiscal year of any
transaction party from each of the Depositor, the Sponsor or the Master
Servicer, as applicable;
Β
(4)Β Any
change in servicer, trustee, credit enhancement or other external support or
failure to make a required distribution from the Master Servicer or Trustee
as
applicable; and
Β
(5)Β Any
Securities Act update provided by the Depositor.
Β
(iii)Β Prior
to
January 30 in each year commencing in 2007, 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 (x) March 15, 2007 and (y)
unless and until a Form 15 Suspension Notice shall have been filed, prior to
March 15 of each year thereafter, the Master Servicer shall provide the Trustee
with an Annual Compliance Statement, together with a copy of the Assessment
of
Compliance and Attestation Report to be delivered by the Master Servicer
pursuant to Sections 3.16 and 3.17. Prior to (x) March 31, 2008 and (y) unless
and until a Form 15 Suspension Notice shall have been filed, March 31 of each
year thereafter, the Master Servicer shall, subject to subsection (d) below,
file a Form 10-K, in substance conforming to industry standards, with respect
to
the Trust Fund. Such Form 10-K shall include the Assessment of Compliance,
Attestation Report, Annual Compliance Statements and other documentation
provided by the Master Servicer pursuant to Sections 3.16 and 3.17 and the
Form
10-K certification signed by the Depositor. The Depositor, the Sponsor and
Master Servicer shall provide the following information, as applicable, no
later
than March 1 of each calendar year prior to the filing deadline for the Form
10-K:
Β
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Β
(1)Β Any
exhibits or financial statement schedules required by Item 15 of Form 10-K
from
each of the Depositor, the Sponsor and Master Servicer;
Β
(2)Β A
description of any legal proceedings pending, including proceedings known to
be
contemplated by governmental authorities, against the Depositor, the Sponsor
and
the Master Servicer or of which any property of the foregoing is the subject,
that is material to Certificateholders from each of the Depositor, the Sponsor
and the Master Servicer if applicable;
Β
(3)Β A
description of any affiliations between the transaction parties pursuant to
Item
1119 of Regulation AB from the Sponsor; and
Β
(4)Β The
Assessment of Compliance, Attestation Report, Annual Compliance Statements
and
other documentation provided by the Master Servicer pursuant to Sections 3.16
and 3.17.
Β
The
Depositor hereby grants to the Master Servicer a limited power of attorney
to
execute and file each such document on behalf of the Depositor. Such power
of
attorney shall continue until either the earlier of (x) receipt by the Master
Servicer from the Depositor of written termination of such power of attorney
and
(y) 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, the Mortgage Loans as the Master Servicer reasonably deems
appropriate to prepare and file all necessary reports with the Securities and
Exchange 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.
Fees
and expenses incurred by the Master Servicer in connection with this Section
3.18 shall not be reimbursable from the Trust Fund.
Β
(b)Β In
connection with the filing of any 10-K hereunder, the Master Servicer shall
sign
a certification (in the form attached hereto as Exhibit G) for the Depositor
regarding certain aspects of the Form 10-K certification signed by the
Depositor, provided, however, that the Master Servicer shall not be required
to
undertake an analysis of any accountantβs report attached as an exhibit to the
Form 10-K.
Β
(c)Β 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 Servicerβs obligations under this Section 3.18 or
the Master Servicerβs negligence, bad faith or willful misconduct in connection
therewith.
Β
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Β
[[Nothing
shall be construed from the foregoing subsections (a), (b) and (c) to require
the Master Servicer or any officer, director or Affiliate thereof to sign any
Form 10-K or any certification contained therein. Furthermore, the inability
of
the Master Servicer to file a Form 10-K as a result of the lack of required
information as set forth in Section 3.18(a) or required signatures on such
Form
10-K or any certification contained therein shall not be regarded as a breach
by
the Master Servicer of any obligation under this Agreement.]]
Β
Notwithstanding
the provisions of Section 11.1, this Section 3.18 may be amended without the
consent of the Certificateholders.
Β
Section
3.19Β Intention
of the Parties and Interpretation.
Each of the parties acknowledges and agrees that the purpose of Sections 3.16,
3.17 and 3.18 of this Agreement is to facilitate compliance by the Sponsor
and
the Depositor with the provisions of Regulation AB promulgated by the SEC under
the Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the partiesβ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c)
the
parties shall comply with requests made by the Sponsor or the Depositor for
delivery of additional or different information as the Sponsor or the Depositor
may determine in good faith is necessary to comply with the provisions of
Regulation AB, and (d) no amendment of this Agreement shall be required to
effect any such changes in the partiesβ obligations as are necessary to
accommodate evolving interpretations of the provisions of Regulation AB.
Β
Section
3.20Β 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.
Β
Section
3.21Β Reserved.
Β
Section
3.22Β Protected
Accounts.
Β
(a)Β 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, Subsequent Recoveries and advances made from the Servicerβs 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 the Certificateholders.
Β
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Β
(b)Β 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
amount required to be distributed to the Certificateholders resulting from
the
loss of monies on 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 (2) 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 remitted to the Master Servicer or the
Securities Administrator.
Β
(c)Β 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 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):
Β
(i)Β 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;
Β
(ii)Β Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries
received by the Servicers with respect to such Loans in the related Prepayment
Period, Compensating Interest and the amount of any related Prepayment Charges;
and
Β
(iii)Β Any
amount to be used as an Advance.
Β
(d)Β Withdrawals
may be made from a Protected Account or the Distribution Account only to make
remittances as provided in Sections 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.
Β
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Β
Section
3.23Β Distribution
Account.
Β
(a)Β The
Securities Administrator shall establish and maintain, a Distribution Account
with respect to the Loans 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 with
respect to the related Loans for the benefit of the related
Certificateholders:
Β
(i)Β Any
amounts withdrawn from a Protected Account;
Β
(ii)Β Any
Advance and any amounts in respect of Prepayment Interest Shortfalls or
Curtailment Shortfalls;
Β
(iii)Β Any
Insurance Proceeds, Liquidation Proceeds or Subsequent Recoveries received
by or
on behalf of the Master Servicer;
Β
(iv)Β The
Purchase Price with respect to any Loans purchased by Sponsor [or AHMC] 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;
Β
(v)Β 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
Β
(vi)Β 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.
Β
(b)Β 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.
Β
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Β
(c)Β 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 Distribution Date following the date of the
investment of such funds (the βInvestment Withdrawal Distribution Dateβ) if the
obligor for such Eligible Investment is the Securities Administrator or, if
such
obligor is any other Person, the Business Day preceding such Investment
Withdrawal 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 related 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. Β§ 92a(e), and
applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking
corporations.
Β
Section
3.24Β Permitted
Withdrawals and Transfers from the Distribution Account.
Β
(a)Β 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 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:
Β
(i)Β 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;
Β
(ii)Β 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;
Β
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Β
(iii)Β 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;
Β
(iv)Β 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 the Master Servicer or such Servicer would have been entitled
to receive under subclause (vii) 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;
Β
(v)Β to
pay
the Master Servicer or any Servicer from the Purchase Price for any Loan, the
amount which the Master Servicer or such Servicer would have been entitled
to
receive under subclause (vii) of this Subsection (a) as servicing
compensation;
Β
(vi)Β 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);
Β
(vii)Β
to pay
the Master Servicing Compensation to the Master Servicer, the Servicing Fee
to
the Servicers (to the extent such Servicing Fee was not retained by a Servicer
pursuant to the related Servicing Agreement), the Credit Risk Management Fee
to
the Credit Risk Manager for such Distribution Date 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.
Β
(viii)Β 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 such
Servicer, to the extent provided in the related Servicing
Agreement;
Β
(ix)Β to
reimburse the Trustee, the Custodians and the Securities Administrator for
expenses, costs and liabilities, if any, incurred by or reimbursable to such
parties pursuant to this Agreement or the Custodial Agreements;
Β
(x)Β to
remove
amounts deposited in error; and
Β
(xi)Β to
clear
and terminate the Distribution Account pursuant to Section 9.1.
Β
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Β
(b)Β 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 (vi), 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).
Β
(c)Β On
each
Distribution Date, the Securities Administrator shall distribute the related
Available Distribution Amount to the Holders of the related Certificates in
accordance with Section 4.1.
Β
Section
3.25Β Class
[___] Reserve Fund.
Β
(a)Β No
later
than the Closing Date, the Securities Administrator shall establish and maintain
a segregated trust accounts titled, βClass [__] Reserve Fund, Xxxxx Fargo Bank,
National Association, in trust for the registered holders of Deutsche Mortgage
Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__], Class [__] Mortgage
Pass-Through Certificatesβ.β
Β
(b)Β On
each
Distribution Date, the Securities Administrator will deposit into the Class
[__]
Reserve Fund an amount equal to the amount by which the sum of the Basis Risk
Carryover Amounts with respect to the Class [__] Certificates exceeds the sum
of
any amounts received by the Securities Administrator with respect to the Cap
Contract since the prior Distribution Date. On each Distribution Date, after
making the distributions required under SectionΒ 4.1(a)(i) through (iv) and
Section 4.1(b)(1) through (4), the Securities Administrator will withdraw from
the Class [__] Reserve Fund the amounts on deposit therein (which shall include
any payments received under the Cap Contract) and distribute such amounts to
the
Class [__] Certificates in respect of any Basis Risk Carryover Amounts due
to
the Class [__] Certificates as set forth in Section 4.1(a)(v) and
(b)(5).
Β
(c)Β The
Reserve Fund constitutes an βoutside reserve fundβ within the meaning of
Treasury Regulation Β§ 1.860G-2(h) and is not an asset of any REMIC. For federal
and state income tax purposes, Sponsor will be deemed to be the owner of each
Reserve Fund. Upon the termination of the Trust Fund, or the payment in full
of
the Certificates, all amounts remaining on deposit in the Class [__] Reserve
Fund will be released by the Trust Fund and distributed to Sponsor or its
designees. The Class [__] Reserve Fund will be part of the Trust Fund but not
part of any REMIC and any payments to the Holders of the Class [__] Certificates
of Basis Risk Carryover Amounts will not be payments with respect to a βregular
interestβ in a REMIC within the meaning of Code Section 860(G)(a)(1).
Β
(d)Β Sponsor
hereby agrees that the Securities Administrator will deposit into the Class
[__]
Reserve Fund the amounts described above on each Distribution Date. Sponsor
further agrees that its agreement to such action by the Securities Administrator
is given for good and valuable consideration, the receipt and sufficiency of
which is acknowledged by such acceptance.
Β
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Β
(e)Β The
Securities Administrator shall direct any depository institution maintaining
the
Class [__] Reserve Fund to invest the funds in such account in one or more
Eligible Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if a Person other than the Securities
Administrator or an Affiliate manages or advises such investment, and (ii)
no
later than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if the Securities Administrator or an
Affiliate manages or advises such investment. All income and gain earned upon
such investment shall be deposited into the Class [__] Reserve Fund. In no
event
shall the Securities Administrator be liable for any investments made pursuant
to this clause (e).
Β
(f)Β For
federal tax return and information reporting, the right of the Holders of the
Class [__] Certificates to receive payments from the related Reserve Fund in
respect of any Basis Risk Carryover Amount shall be assigned a value of
$[__________].
Β
Section
3.26Β [Pre-Funding
Account.
Β
(a)Β No
later
than the Closing Date, the Securities Administrator shall establish and maintain
a trust account which at all times shall be an Eligible Account and shall be
titled βPre-Funding Account, [Name of Master Servicer], in trust for the
registered holders of Deutsche Mortgage Securities, Inc. Mortgage Loan Trust,
Series 200[__]-[__], Mortgage Pass-Through Certificatesβ (the βPre-Funding
Accountβ). The Securities Administrator shall, promptly upon receipt, deposit in
the Pre-Funding Account and retain therein the Original Pre-Funded Amount
remitted on the Closing Date by the Depositor. Funds deposited in the
Pre-Funding Account shall be held in trust for the Certificateholders for the
uses and purposes set forth herein.
Β
(b)Β The
Securities Administrator will invest funds deposited in the Pre-Funding Account
only as directed in writing by the Depositor (and such amounts shall not be
invested if no direction is received by Securities Administrator) in Permitted
Investments with a maturity date (i) no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if a Person other than the Securities
Administrator or an Affiliate manages or advises such investment, (ii) no later
than the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement, if the Securities Administrator or an Affiliate
manages or advises such investment or (iii) within one (1) Business Day of
the
Securities Administratorβs receipt thereof. For federal income tax purposes, the
Depositor shall be the owner of the Pre-Funding Account and shall report all
items of income, deduction, gain or loss arising therefrom. All income and
gain
realized from investment of funds deposited in the Pre-Funding Account shall
be
transferred to the Depositor. The Depositor shall deposit in the Pre-Funding
Account the amount of any net loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss without any right of
reimbursement therefor. At no time will the Pre-Funding Account be an asset
of
any REMIC created hereunder.
Β
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Β
(c)Β Amounts
on deposit in the Pre-Funding Account shall be withdrawn by the Securities
Administrator as follows:
Β
(i)Β On
any
Subsequent Transfer Date, the Securities Administrator shall withdraw from
the
Pre-Funding Account an amount equal to 100% of the Principal Balances of the
related Subsequent Loans as of the Subsequent Cut-Off Date, transferred and
assigned to the Trustee for deposit in the mortgage pool on such Subsequent
Transfer Date and pay such amount to or upon the order of the Depositor upon
satisfaction of the conditions set forth in SectionΒ 2.6 with respect to
such transfer and assignment;
Β
(ii)Β If
the
amount on deposit in the Pre-Funding Account (exclusive of any investment income
therein) has not been reduced to zero during the Pre-Funding Period, on the
day
immediately following the termination of the Pre-Funding Period, the Securities
Administrator shall deposit into the Distribution Account any amounts remaining
in the Pre-Funding Account (exclusive of any investment income therein) for
distribution in accordance with the terms hereof;
Β
(iii)Β To
withdraw any amount not required to be deposited in the Pre-Funding Account
or
deposited therein in error; and
Β
(iv)Β To
clear
and terminate the Pre-Funding Account upon the earlier to occur of (A) the
Distribution Date immediately following the end of the Pre-Funding Period and
(B) the termination of this Agreement, with any amounts remaining on deposit
therein being paid to the Holders of the Certificates then entitled to
distributions in respect of principal.
Β
Withdrawals
pursuant to clauses (i), (ii) and (iii) shall be treated as contributions of
cash to REMIC I on the date of withdrawal.]
Β
Section
3.27Β [Capitalized
Interest Account.
Β
(a)Β No
later
than the Closing Date, the Securities Administrator shall establish and maintain
a trust account which shall at all times be an Eligible Account and shall be
titled βCapitalized Interest Account, [Name of Master Servicer], in trust for
the registered holders of Deutsche Mortgage Securities, Inc. Mortgage Loan
Trust, Series 200[__]-[__], Mortgage Pass-Through Certificatesβ (the
βCapitalized Interest Accountβ). The Securities Administrator shall, promptly
upon receipt, deposit in the Capitalized Interest Account and retain therein
the
Original Capitalized Interest Amount remitted on the Closing Date by the
Depositor. Funds deposited in the Capitalized Interest Account shall be held
in
trust for the Certificateholders for the uses and purposes set forth
herein.
Β
(b)Β The
Securities Administrator will invest funds deposited in the Capitalized Interest
Account only as directed in writing by the Depositor (and such amounts shall
not
be invested if no direction is received by the Securities Administrator) in
writing in Permitted Investments with a maturity date (i) no later than the
Business Day immediately preceding the date on which such funds are required
to
be withdrawn from such account pursuant to this Agreement, if a Person other
than the Securities Administrator or an Affiliate manages or advises such
investment, (ii) no later than the date on which such funds are required to
be
withdrawn from such account pursuant to this Agreement, if the Securities
Administrator or an Affiliate manages or advises such investment or (iii) within
one (1) Business Day of the Securities Administratorβs receipt thereof. The
amount of any losses in the Capitalized Interest Account incurred in respect
of
any such investments shall promptly be deposited by the Depositor in the
Capitalized Interest Account. All income or gain realized from any such
investment of funds on deposit in the Capitalized Interest Account shall be
credited to the Capitalized Interest Account. At no time will the Capitalized
Interest Account be an asset of any REMIC created hereunder.
Β
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Β
(c)Β On
each
Distribution Account Deposit Date during the Pre-Funding Period, upon
satisfaction of the conditions for the conveyance of Subsequent Loans set forth
in SectionΒ 2.6, the Securities Administrator shall transfer from the
Capitalized Interest Account to the Distribution Account an amount equal to
the
lesser of the Capitalized Interest Requirement (which, to the extent required,
may include investment earnings on amounts on deposit therein) and the amount
remaining in the Capitalized Interest Account for the related Distribution
Date.
If any funds remain in the Capitalized Interest Account at the end of the
Pre-Funding Period, the Securities Administrator shall make the transfer
described in the preceding sentence if necessary for the Distribution Date
following the expiration of the Pre-Funding Period and the Securities
Administrator shall distribute any remaining funds in the Capitalized Interest
Account to the order of the Depositor.]
Β
Section
3.28Β Prepayment
Penalty Verification.
Β
On
or
prior to each Servicer Remittance Date, each Servicer shall, to the extent
provided in the respective Servicing Agreement, provide in an electronic format
acceptable to the Master Servicer the data necessary for the Master Servicer
to
perform its verification duties agreed to by the Master Servicer and the
Depositor. The Master Servicer or a third party reasonably acceptable to the
Master Servicer and the Depositor (the βVerification Agentβ) will perform such
verification duties and will use its best efforts to issue its findings in
a
report (the βVerification Reportβ) delivered to the Master Servicer and the
Depositor within ten (10) Business Days following the related Distribution
Date;
provided, however, that if the Verification Agent is unable to issue the
Verification Report within ten (10) Business Days following the Distribution
Date, the Verification Agent may issue and deliver to the Master Servicer and
the Depositor the Verification Report upon the completion of its verification
duties. The Master Servicer shall forward the Verification Report to the
respective Servicer and shall notify such Servicer if the Master Servicer has
determined that such Servicer did not deliver the appropriate Prepayment Charges
to the Master Servicer in accordance with the respective Servicing Agreement.
Such written notification from the Master Servicer shall include the loan
number, prepayment penalty code and prepayment penalty amount as calculated
by
the Master Servicer or the Verification Agent, as applicable, of each Loan
for
which there is a discrepancy. If the respective Servicer agrees with the
verified amounts, such Servicer shall adjust the immediately succeeding
Remittance Report and the amount remitted to the Master Servicer with respect
to
prepayments accordingly. If the respective Servicer disagrees with the
determination of the Master Servicer, such Servicer shall, within five (5)
Business Days of its receipt of the Verification Report, notify the Master
Servicer of such disagreement and provide the Master Servicer with detailed
information to support such Servicerβs position. The respective Servicer and the
Master Servicer shall cooperate to resolve any discrepancy on or prior to the
immediately succeeding Servicer Remittance Date, and such Servicer will indicate
the effect of such resolution on the related Remittance Report and shall adjust
the amount remitted with respect to prepayments on such Servicer Remittance
Date
accordingly.
Β
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Β
During
such time as the respective Servicer and the Master Servicer are resolving
discrepancies with respect to the Prepayment Charges, no payments in respect
of
any disputed Prepayment Charges will be remitted to the Distribution Account
and
the Master Servicer shall not be obligated to remit such payments, unless
otherwise required pursuant to Section 7.1 hereof. In connection with such
duties, the Master Servicer shall be able to rely solely on the information
provided to it by the respective Servicer in accordance with this Section.
The
Master Servicer shall not be responsible for verifying the accuracy of any
of
the information provided to it by the respective Servicer or for performing
the
Master Servicerβs duties under this SectionΒ 3.28 with respect to a Servicer
if such Servicer is unable or unwilling to provide the required data to the
Master Servicer or is not required to provide such information to the Master
Servicer.
Β
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ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS
AND REPORTS
Β
Section
4.1Β Distributions
to Certificateholders.
Β
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 Group I Available Distribution
Amount and Group II Available Distribution Amount for such Distribution Date
and
distribute to each related 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 the Group I Available Distribution Amount and
Group II Available Distribution Amount, as applicable, such Certificateholderβs
Percentage Interest of the following amounts and in following order and
priority:
Β
(a)Β On
each
Distribution Date prior to the Credit Support Depletion Date, the Securities
Administrator will distribute the Group I Available Distribution Amount and
Group II Available Distribution Amount in the following order and
priority:
Β
(i)Β On
each
Distribution Date, the Group I Available Distribution Amount shall be
distributed as follows:
Β
(1)Β first,
concurrently to the Group I Senior Certificates (other than the Class [__]
Certificates), the related Interest Distribution Amount on a pro
rata
basis
based on the related Interest Distribution Amount with respect to each such
Class; provided, however, that for each Distribution Date prior to the Class
[__] Accretion Termination Date, the Class [__] Accrual Amount shall be payable
as principal to the Class [__], Class [__], Class [__] and Class [__]
Certificates in the amount and priority set forth below in clauses (i)(5),
(i)(6) and (i)(7);
Β
(2)Β second,
to the
Class R Certificates, the related Senior Principal Distribution Amount until
the
Certificate Principal Balance of the Class R Certificates has been reduced
to
zero;
Β
(3)Β third,
concurrently, to the Class [__] Certificates and the Class [__] Certificates
on
a pro
rata
basis
based on the Certificate Principal Balance of each such Class, an amount equal
to the Class [__] /Class [__] Priority Amount, until the Certificate Principal
Balance of each such Class has been reduced to zero;
Β
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Β
(4)Β fourth,
to the
Class [__] Certificates, the Group I Discount Fractional Principal Amount until
the Certificate Principal Balance of the Class [__] Certificates has been
reduced to zero;
Β
(5)Β fifth,
to the
Class [__], Class [__] and Class [__] Certificates, from the related Senior
Principal Distribution Amount, an amount up to $[__] for each Distribution
Date,
in the following order of priority:
Β
(A)Β concurrently,
to the Class [__] Certificates and Class [__] Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class, until the
Certificate Principal Balance of each such Class has been reduced to zero;
provided that prior to the Class [__] Accretion Termination Date, distributions
pursuant to this clause shall be made first from the Class [__] Accrual Amount
for such Distribution Date and second from the related Senior Principal
Distribution Amount remaining after distributions pursuant to clauses (i)(2)
and
(i)(3) above; and
Β
(B)Β to
the
Class [__] Certificates, until the Certificate Principal Balance of the Class
[__] Certificates has been reduced to zero;
Β
(6)Β sixth,
to the
Class [__] Certificates, up to an amount equal to $[__] for each Distribution
Date, until the Certificate Principal Balance of the Class [__] Certificates
has
been reduced to zero; provided that prior to the Class [__] Accretion
Termination Date, distributions pursuant to this clause shall be made first
from
the Class [__] Accrual Amount for such Distribution Date and second from the
related Senior Principal Distribution Amount, in each case remaining after
distributions pursuant to clauses (i)(2), (i)(3) and (i)(5) above;
Β
(7)Β seventh,
to the
Class [__] Certificates, up to an amount equal to $[__]; provided that prior
to
the Class [__] Accretion Termination Date, distributions pursuant to this clause
shall be made first from the Class [__] Accrual Amount for such Distribution
Date and second from the related Senior Principal Distribution Amount, in each
case remaining after distributions pursuant to clauses (i)(2), (i)(3), (i)(5)
and (i)(6) above;
Β
(8)Β eighth,
concurrently, to the Class [__] Certificates and the Class [__] Certificates
on
a pro
rata
basis
based on the Certificate Principal Balance of each such Class, the related
Senior Principal Distribution Amount remaining after payments pursuant to
clauses (i)(2), (i)(3) and (i)(5) through (i)(7) above, until the Certificate
Principal Balance of each such Class has been reduced to zero;
Β
(9)Β ninth,
to the
Class [__] Certificates, the related Senior Principal Distribution Amount
remaining after payments pursuant to clauses (i)(2), (i)(3) and (i)(5) through
(i)(8) above, without regard to amounts distributed pursuant to clause (i)(7)
above, until the Certificate Principal Balance of the Class [__] Certificates
has been reduced to zero;
Β
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Β
(10)Β tenth,
to the
Class [__] Certificates, the related Senior Principal Distribution Amount
remaining after payments pursuant to clauses (i)(2), (i)(3) and (i)(5) through
(i)(9) above, without regard to amounts distributed pursuant to clause (i)(6)
above, until the Certificate Principal Balance of the Class [__] Certificates
has been reduced to zero;
Β
(11)Β eleventh,
to the
Class [__] Certificates, the related Senior Principal Distribution Amount
remaining after payments pursuant to clauses (i)(2), (i)(3) and (i)(5) through
(i)(10) above until the Certificate Principal Balance of the Class [__]
Certificates has been reduced to zero;
Β
(12)Β twelfth,
concurrently, to the Class [__] Certificates and Class [__] Certificates, on
a
pro
rata
basis,
based on the Certificate Principal Balance of each such Class, the related
Senior Principal Distribution Amount remaining after payments pursuant to
clauses (i)(2), (i)(3) and (i)(5) through (i)(11) above, without regard to
the
Class [__] /Class [__] Priority Amount, until the Certificate Principal Balance
of each such Class has been reduced to zero; and
Β
(13)Β thirteenth,
the
Group I Discount Fractional Principal Shortfall to the Class [__] Certificates,
but not more than an amount equal to the Subordinate Principal Distribution
Amount related to the Group I Loans for such Distribution Date (without regard
to the proviso of such definition).
Β
(ii)Β On
each
Distribution Date, the Group II Available Distribution Amount shall be
distributed as follows:
Β
(1)Β first,
concurrently to the Group II Senior Certificates (other than the Class [__]
Certificates), the related Interest Distribution Amount on a pro
rata
basis
based on the related Interest Distribution Amount with respect to each such
Class;
Β
(2)Β second,
concurrently, to the Class [__] Certificates and the Class [__] Certificates
on
a pro
rata
basis
based on the Certificate Principal Balance of each such Class, an amount equal
to the Class [__] /Class [__] Priority Amount, until the Certificate Principal
Balance of each such Class has been reduced to zero;
Β
(3)Β third,
to the
Class [__] Certificates, the Group II Discount Fractional Principal Amount
until
the Certificate Principal Balance of the Class [__] Certificates has been
reduced to zero;
Β
(4)Β fourth,
to the
Class [__] Certificates, the related Senior Principal Distribution Amount
remaining after payments pursuant to clause (ii)(2) above, until the Certificate
Principal Balance of the Class [__] Certificates has been reduced to
zero;
Β
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Β
(5)Β fifth,
to the
Class [__] Certificates, the related Senior Principal Distribution Amount
remaining after payments pursuant to clauses (ii)(2) and (ii)(4) above, until
the Certificate Principal Balance of the Class [__] Certificates has been
reduced to zero;
Β
(6)Β sixth,
concurrently, to the Class [__] Certificates and Class [__] Certificates, on
a
pro
rata
basis,
based on the Certificate Principal Balance of each such Class, the related
Senior Principal Distribution Amount remaining after payments pursuant to
clauses (ii)(2), (ii)(4) and (ii)(5) above, without regard to the Class [__]
/Class [__] Priority Amount, until the Certificate Principal Balance of each
such Class has been reduced to zero; and
Β
(7)Β seventh,
the
Group II Discount Fractional Principal Shortfall to the Class [__] Certificates,
but not more than an amount equal to the Subordinate Principal Distribution
Amount related to the Group II Loans for such Distribution Date (without regard
to the proviso of such definition).
Β
(iii)Β From
the
Group I Available Distribution Amount and Group II Available Distribution Amount
remaining after payments pursuant to clauses (i) and (ii) above, (a)
first,
the
Senior Interest Shortfall Amount for each Class of Senior Certificates (other
than the Class [__] Certificates and Class [__] Certificates) for such
Distribution Date, if any, pro rata according to the amount of interest to
which
each such Class would otherwise be entitled, (b) second,
an
amount equal to the Collateral Deficiency Amount, if any, to the Senior
Certificates (other than the Class [__], Class [__] and Class [__]
Certificates), pro rata among the Senior Certificates (other than the Class
[__], Class [__] and Class [__] Certificates) based on the related Collateral
Deficiency Amount and within each group of Certificates, on a pro rata basis,
if
applicable, based on the Certificate Principal Balance of each such Class,
as a
payment of principal and (c) third,
if such
Distribution Date is a Cross Payment Trigger Date, the Principal Prepayment
Amount distributable to the Senior Certificates (other than the Class [__],
Class [__] and Class [__] Certificates) that have been paid in full, will be
paid as principal to the related Senior Certificates (other than the Class
[__],
Class [__] and Class [__] Certificates) that have not been paid in full in
accordance with the priorities set forth in clauses (i) and (ii)
above.
Β
(iv)Β From
the
sum of the remaining Group I Available Distribution Amount and Group II
Available Distribution Amount, after payments pursuant to clauses (i) through
(iii) above, to the Class [__], Class [__], Class [__], Class [__], Class [__]
and Class [__] Certificates, sequentially, in that order, an amount equal to
their respective Interest Distribution Amounts for such Distribution Date and
their pro rata share, based on the outstanding Certificate Principal Balance
of
each such Class, of the Subordinate Principal Distribution Amount; 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 will 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 based on the Certificate Principal Balance of each
such
Class.
Β
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Β
(v)Β From
the
remaining Group I Available Distribution Amount, to the Class [__] Reserve
Fund,
and then from the Class [__] Reserve Fund (including any payments received
under
the Cap Contract), to the Class [__] Certificates in respect of any Basis Risk
Carryover Amounts due the Class I[__] Certificates as follows:
Β
(1)Β first,
to the
holders of the Class [__] Certificates, any amounts received by the Securities
Administrator on account of the Cap Contract for such Distribution Date;
and
Β
(2)Β second,
to the
Class [__] Certificates, any Basis Risk Carryover Amount remaining unpaid after
distributions pursuant to clause (1) above.
Β
(vi)Β To
the
Group I Senior Certificates (other than the Class [__] Certificates and Class
[__] Certificates) and Group II Senior Certificates (other than the Class [__]
Certificates), from the related Available Distribution Amount remaining after
distributions pursuant to clauses (i) through (v) above, by Pro Rata Allocation,
the amount of any unreimbursed losses previously allocated to such Classes
of
Certificates, and thenΒ to
the
Subordinate Certificates, in the order of their seniority, the amount of any
unreimbursed losses previously allocated to such Classes of
Certificates.
Β
(vii)Β To
the
Class R Certificates, the remainder (which is expected to be zero), if any
of
the Group I Available Distribution Amount and Group II Available Distribution
Amount remaining after distributions pursuant to clauses (i) through (vi)
above.
Β
(b)Β On
each
Distribution Date on or after the Credit Support Depletion Date, to the extent
of the Group I Available Distribution Amount and Group II Available Distribution
Amount on such Distribution Date, distributions will be made to the Senior
Certificates in the following order of priority:
Β
(1)Β first,
(a) to
the Group I Senior Certificates (other than the Class [__] Certificates) from
the Group I Available Distribution Amount, the related Interest Distribution
Amount pro rata based on the amount payable to each such Class and (b) to the
Group II Senior Certificates (other than the Class [__] Certificates) from
the
Group II Available Distribution Amount, the related Interest Distribution Amount
pro rata based on the amount payable to each such Class;
Β
(2)Β second,
(a)
from the Group I Available Distribution Amount remaining after payments in
clause (1)(a) above, the Group I Discount Fractional Principal Amount to the
Class [__] Certificates and (b) from the Group II Available Distribution Amount
remaining after payments in clause (1)(b) above, the Group II Discount
Fractional Principal Amount to the Class [__] Certificates;
Β
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Β
(3)Β third,
(a) to
the Group I Senior Certificates (other than the Class [__], Class [__] and
Class
[__] Certificates) on a pro rata basis based on the Certificate Principal
Balance of each such Class, the Group I Available Distribution Amount remaining
after payments pursuant to clause (1)(a) and (2)(a) above and (b) to the Group
II Senior Certificates (other than the Class [__] Certificates and Class [__]
Certificates) on a pro rata basis based on the Certificate Principal Balance
of
each such Class, the Group II Available Distribution Amount remaining after
payments pursuant to clauses (1)(b) and (2)(b) above, in each case until the
Certificate Principal Balance of each such Class has been reduced to
zero;
Β
(4)Β fourth,
from
the Group I Available Distribution Amount and Group II Available Distribution
Amount remaining after payments pursuant to clauses (1), (2) and (3) above,
to
each Class of Certificates for which a Senior Interest Shortfall Amount exists,
the Senior Interest Shortfall Amount for such Distribution Date, pro rata,
based
on such Senior Interest Shortfall Amount;
Β
(5)Β fifth,
from
the Group I Available Distribution Amount remaining after payments pursuant
to
clauses (1) through (4) above, to the Class [__] Reserve Fund and then from
the
Class [__] Reserve Fund, to the Class [__] Certificates, the Basis Risk
Carryover Amount payable to such Class for such Distribution Date (after taking
into account all payments received by the Securities Administrator from the
Cap
Contract);
Β
(6)Β sixth,
(a)
from the Group I Available Distribution Amount remaining after payments pursuant
to clauses (1) through (5) above, to the Group I Senior Certificates (other
than
the Class [__] Certificates and Class [__] Certificates) on a pro rata basis
based on the outstanding Certificate Principal Balance of such Class, the amount
of any unreimbursed losses previously allocated to each such Class and (b)
from
the Group II Available Distribution Amount remaining after payments pursuant
to
clauses (1) through (4) above, to the Group II Senior Certificates (other than
the Class [__] Certificates) on a pro rata basis based on the outstanding
Certificate Principal Balance of each such Class, the amount of any unreimbursed
losses previously allocated to each such Class; and
Β
(7)Β seventh,
to the
Class R Certificates, the remainder, if any (which is expected to be zero),
of
the Group I Available Distribution Amount and Group II Available Distribution
Amount remaining after distributions pursuant to clauses (1) through (6)
above.
Β
On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Loans serviced by [GMAC pursuant to the GMAC 2005 Servicing Agreement] and
received during the related Prepayment Period will be withdrawn from the
Distribution Account and distributed to the Class [P-1] Certificates, and all
amounts representing Prepayment Charges in respect of the Loans serviced by
[GreenPoint], [National City], [Xxxxx Fargo] and [GMAC pursuant to the GMAC
2004
Servicing Agreement] and received during the related Prepayment Period will
be
withdrawn from the Distribution Account and distributed to the Class [P-2]
Certificates, and shall not be available for distribution to the holders of
any
other Class of Certificates. The payment of such Prepayment Charges shall not
reduce the Certificate Principal Balance of the Class [P-1] Certificates or
Class [P-2] Certificates.
Β
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Β
On
the
Distribution Date in [__________], prior to making any distributions to the
Class R Certificates, the Securities Administrator shall make a payment of
principal to the Class [P-1] Certificates and Class [P-2] Certificates,
respectively, in reduction of the Certificate Principal Balance of each such
Class from amounts on deposit in sub-accounts of the Distribution Account
established and maintained by the Securities Administrator, on behalf of the
Trustee, for the exclusive benefit of the Class [P-1] Certificateholders and
Class [P-2] Certificateholders, as applicable.
Β
Section
4.2Β Allocation
Realized Losses.
Β
(a)Β 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.
Β
(b)Β Realized
Losses, other than Excess Losses, shall be allocated as follows: (i) for losses
allocable to principal, (a) first, sequentially, to the Class [___], Class
[___], Class [___], Class [___], Class [___]and Class [___] Certificates, in
that order, until the Certificate Principal Balance of each such Class been
reduced to zero and (b) second, (1) with respect to Realized Losses related
to
the Group I Loans, concurrently to each Class of the Group I Senior Certificates
(other than the Class [___] Certificates and Class [___] Certificates) on a
pro
rata basis based on the Certificate Principal Balance of each such Class, in
each case until the Certificate Principal Balance of each such Class has been
reduced to zero; provided, that any such Realized Loss allocable to the Class
[___] Certificates and Class [___] Certificates will be allocated first to
the
Class [___] Certificates, up to a maximum amount of $[___] with respect to
the
Class [___] Certificates, and up to a maximum amount of $[___] with respect
to
the Class [___] Certificates, until the Certificate Principal Balance of the
Class [___] Certificates has been reduced to zero, and then to the Class [___]
Certificates and Class [___] Certificates, respectively, until the Certificate
Principal Balance of each such Class has been reduced to zero, and (2) with
respect to Realized Losses related to the Group II Loans, concurrently to each
Class of Group II Senior Certificates (other than the Class [___] Certificates)
until the Certificate Principal Balance of each such Class has been reduced
to
zero, provided, that any such Realized Loss allocable to the Class [___]
Certificates will be allocated first to the Class [___] Certificates, until
the
Certificate Principal Balance of the Class [___] Certificates has been reduced
to zero, and then to the Class [___] Certificates, until the Certificate
Principal Balance of the Class [___] Certificates has been reduced to zero;
provided,
however,
that
following the Credit Support Depletion Date, if any loss is incurred with
respect to a Group I Discount Loan, the Group I Discount Fraction of such loss
will first be allocated to the Class [___] Certificates and the remainder of
such loss will be allocated as described above in clause (i)(b)(2); provided,
further,
that
following the Credit Support Depletion Date, if any loss is incurred with
respect to a
Β
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Group
II
Discount Loan, the Group II Discount Fraction of such loss will first be
allocated to the Class [___] Certificates and the remainder of such loss will
be
allocated as described above in clause (i)(b)(2); and (ii) for losses allocable
to interest, (a) first, sequentially, to the Class [___], Class [___], Class
[___], Class [___], Class [___] and Class [___] Certificates, in that order,
in
reduction of accrued but unpaid interest thereon until the amount of interest
accrued on such Certificate on such Distribution Date has been reduced to zero,
and then in reduction of the Certificate Principal Balance of such Certificate
until the Certificate Principal Balance thereof has been reduced to zero, and
(b) second, to the Senior Certificates relating to the Loan Group for which
such
Realized Losses were incurred, by Pro Rata Allocation, in reduction of accrued
but unpaid interest thereon until the amount of interest accrued on such
Certificate has been reduced to zero and then with respect to the Senior
Certificates (other than the Class [___], Class [___], Class [___], Class [___]
and Class [___] Certificates), in reduction of the Certificate Principal Balance
of each such Certificate until the aggregate of the Certificate Principal
Balances thereof have been reduced to zero; provided, that (1) the Pro Rata
Allocation of any such loss allocable to the Class [___] Certificates and Class
[___] Certificates will be allocated first to the Class [___] Certificates,
up
to a maximum amount of $[___] with respect to the Class [___] Certificates,
and
up to a maximum amount of $[___] with respect to the Class [___] Certificates,
until the Certificate Principal Balance of the Class [___] Certificates has
been
reduced to zero, and then to the Class [___] Certificates and Class [___]
Certificates, respectively, until the Certificate Principal Balance of each
such
Class has been reduced to zero; and (2) the Pro Rata Allocation of any such
loss
allocable to the Class [___] Certificates will be allocated first to the Class
[___] Certificates until the Certificate Principal Balance of the Class [___]
Certificates has been reduced to zero, and then to the Class [___] Certificates
until the Certificate Principal Balance of the Class [___] Certificates has
been
reduced to zero. In addition, to the extent the related Servicer receives
Subsequent Recoveries with respect to any defaulted Loan, the amount of the
Realized Loss with respect to that defaulted Loan will be reduced to the extent
such Subsequent Recoveries are applied to reduce the Certificate Principal
Balance of any Class of Certificates on any Distribution Date. In the event
that
a Servicer receives any Subsequent Recoveries, such Subsequent Recoveries shall
be distributed as part of the Group I Available Distribution Amount or Group
II
Available Distribution Amount, as applicable, in accordance with the priorities
in Section 4.1, and the Certificate Principal Balance of each Class of
Subordinate Certificates that has been reduced by the allocation of a Realized
Loss to such Certificate shall be increased, in order of seniority, by the
amount of such Subsequent Recoveries. Holders of such Certificates are not
entitled to any payment in respect of current interest on the amount of such
increases for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs.
Β
(c)Β Excess
Losses with respect to the Loans will be allocated to the outstanding Class
or
Classes of Senior Certificates (other than the Class [___], Class [___] and
Class [___] Certificates) of the related Loan Group and to the Subordinate
Certificates by Pro Rata Allocation; provided, that (i) the Pro Rata Allocation
of any such loss allocable to the Class [___] Certificates and Class [___]
Certificates will be allocated first to the Class [___] Certificates, up to
a
maximum amount of $[___] with respect to the Class [___] Certificates, and
up to
a maximum amount of $[___] with respect to the Class [___] Certificates, until
the Certificate Principal Balance of the Class [___] Certificates has been
reduced to zero, and then to the Class [___] Certificates and Class [___]
Certificates, respectively, until the Certificate Principal Balance of each
such
Class has been reduced to zero; and (ii) the Pro Rata Allocation of any such
loss allocable to the Class [___] Certificates will be allocated first to the
Class [___] Certificates until the Certificate Principal Balance of the Class
[___] Certificates has been reduced to zero, and then to the Class [___]
Certificates until the Certificate Principal Balance of the Class [___]
Certificates has been reduced to zero.
Β
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Β
(d)Β On
each
Distribution Date, if the aggregate Certificate Principal Balance of the Senior
Certificates (other than the Class [___], Class [___] and Class [___]
Certificates) and Subordinate Certificates exceeds the aggregate Principal
Balance of the Loans (after giving effect to distributions of principal and
the
allocation and reimbursement of all losses on the related Certificates on such
Distribution Date), such excess will be deemed a principal loss and will be
allocated to the Subordinate Certificates in reverse order of seniority until
the Certificate Principal Balance of each such Class has been reduced to zero.
If the Certificate Principal Balance of each Class of Subordinate Certificates
has been reduced to zero and the aggregate Certificate Principal Balance of
the
Senior Certificates (other than the Class [___], Class [___] and Class [___]
Certificates) exceeds the aggregate Principal Balance of the Loans (after giving
effect to distributions of principal and the allocation and reimbursement of
all
losses on the Certificates on such Distribution Date), such excess will be
deemed a principal loss and, (i) if attributable to the Group I Loans, will
be
allocated to the Group I Senior Certificates (other than the Class [___]
Certificates and Class [___] Certificates) by Pro Rata Allocation, until the
Certificate Principal Balance of each such Class has been reduced to zero;
provided, that any such Realized Loss allocable to the Class [___] Certificates
and Class [___] Certificates will be allocated first to the Class [___]
Certificates, up to a maximum amount of $[___] with respect to the Class [___]
Certificates, and up to a maximum amount of $[___] with respect to the Class
[___] Certificates, until the Certificate Principal Balance of the Class [___]
Certificates has been reduced to zero, and then to the Class [___] Certificates
and Class [___] Certificates, respectively, until the Certificate Principal
Balance of each such Class has been reduced to zero; and (ii) if attributable
to
the Group II Loans, will be allocated to the Group II Senior Certificates (other
than the Class [___] Certificates), by Pro Rata Allocation, until the
Certificate Principal Balance of each such Class has been reduced to zero;
provided, that any such Realized Loss allocable to the Class [___] Certificates
will be allocated first to the Class [___] Certificates until the Certificate
Principal Balance of the Class [___] Certificates has been reduced to zero,
and
then to the Class [___] Certificates until the Certificate Principal Balance
of
the Class [___] Certificates has been reduced to zero.
Β
Realized
Losses from the Loans shall be applied after all distributions have been made
on
each Distribution Date, to each REMIC I Regular Interest in the same manner
and
priority as Realized Losses are allocated to the Corresponding
Certificates.
Β
Section
4.3Β Reduction
of Certificate Principal Balances on the Certificates.
Β
(a)Β All
reductions in the Certificate Principal Balance of a Certificate effected by
distributions of principal or allocations of Realized Losses with respect to
the
related 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. Holders of such Certificates will not be entitled
to
any payment in respect of current interest on the amount of such increases
for
any Interest Accrual Period preceding the Distribution Date on which such
increase occurs.
Β
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89 -
Β
(b)Β The
final
distribution of principal of each Certificate (and the final distribution with
respect to the Residual Certificates 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 4.6 or Section 9.1.
Β
(c)Β Whenever,
on the basis of Curtailments, Payoffs and Monthly Payments on the Loans and
related Insurance Proceeds and Liquidation Proceeds received and expected to
be
received during the applicable Prepayment Period, the Securities Administrator
believes that the entire remaining unpaid aggregate Certificate 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:
Β
(i)Β it
is
expected that funds sufficient to make such final distribution shall be
available in the Distribution Account on such Distribution Date,
and
Β
(ii)Β 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.
Β
Section
4.4Β Compliance
with Withholding Requirements.
Β
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.
Β
Section
4.5Β Distributions
on the REMIC I Regular Interests.
Β
Distributions
of principal from the Loans shall be deemed to be made to the REMIC I Regular
Interests, in each case from the related Loan Group, first, to REMIC I Regular
Interest LT-IA1, REMIC I Regular Interest LT-IA3, REMIC I Regular Interest
LT-IA4, REMIC I Regular Interest LT-IA5, REMIC I Regular Interest LT-IA7, REMIC
I Regular Interest LT-IA8, REMIC I Regular Interest LT-IAPO, REMIC I Regular
Interest LT-IIA1, REMIC I Regular Interest LT-IIA2, REMIC I Regular Interest
LT-IIA3, REMIC I Regular Interest LT-IIA4, REMIC I Regular Interest LT-IIAPO,
REMIC I Regular Interest LT-P1, REMIC I Regular Interest LT-P2, REMIC I Regular
Interest LT-M, REMIC I Regular Interest LT-B1, REMIC I Regular Interest LT-B2,
REMIC I Regular Interest LT-B3, REMIC I Regular Interest LT-B4 and REMIC I
Regular Interest LT-B5 in the same manner and priority as such distributions
are
made to the Corresponding Certificates. Interest shall be payable to each REMIC
I Regular Interest at the related Uncertificated REMIC I Pass-Through Rate
on
each such REMIC I Regular Interestβs Uncertificated Principal
Balance.
Β
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Β
Section
4.6Β Statements
to Certificateholders.
Β
On
each
Distribution Date, the Securities Administrator shall provide or make available,
upon request to each Holder of a Certificate and the Credit Risk Manager, a
statement (each, a βRemittance Reportβ) as to the distributions made to such
Certificateholders on such Distribution Date setting forth:
Β
(i)Β applicable
record dates, accrual periods, determination dates for calculating distributions
and general distribution dates;
Β
(ii)Β the
total
cash flows received and the general sources thereof;
Β
(iii)Β the
aggregate Servicing Fees received by the Servicers and the Master Servicing
Compensation received by the Master Servicer during the related Due
Period;
Β
(iv)Β [[the
amount of any Net Swap Payment payable to the Swap Administrator, any Net Swap
Payment payable to the Swap Provider, any Swap Termination Payment payable
to
the Swap Administrator and any Swap Termination Payment payable to the Swap
Provider;]]
Β
(v)Β the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates allocable to principal;
Β
(vi)Β the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates allocable to interest;
Β
(vii)Β the
number and aggregate Principal Balance of the Loans in a Loan Group in respect
of which (A) one scheduled payment is delinquent, (B) two scheduled payments
are
delinquent, (C) three or more scheduled payments are delinquent and (D) (1)
foreclosure proceedings have been initiated, and (2) the number and aggregate
Principal Balance of Mortgaged Properties acquired through foreclosure, deed
in
lieu of foreclosure or other exercise of rights respecting the Trusteeβs
security interest in the Loans, in each case as of the close of business on
the
last day of the calendar month preceding such Distribution Date and separately
identifying such information for the (i) first lien Mortgage Loans, (ii) second
lien Mortgage Loans, (iii) Adjustable Rate Mortgage Loans, in each such Loan
Group;
Β
(viii)Β the
aggregate Principal Balance of the Loans as of the close of business on the
last
day of the related Prepayment Period;
Β
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Β
(ix)Β the
amount of Special Hazard Coverage available to the Group I Senior Certificates
and Group II Senior Certificates remaining as of the close of business on the
applicable Determination Date;
Β
(x)Β the
amount of Bankruptcy Coverage available to the Group I Senior Certificates
and
Group II Senior Certificates remaining as of the close of business on the
applicable Determination Date;
Β
(xi)Β the
amount of Fraud Coverage available to the Group I Senior Certificates and Group
II Senior Certificates remaining as of the close of business on the applicable
Determination Date;
Β
(xii)Β the
amount of Realized Losses with respect to the Group I Loans and Group II Loans
allocable to the related Certificates on the related Distribution Date and
the
cumulative amount of Realized Losses incurred and allocated to the related
Certificates since the Cut-Off Date;
Β
(xiii)Β 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;
Β
(xiv)Β the
amount of funds advanced by each Servicer and the Master Servicer for such
Distribution Date with respect to the Loans in each Loan Group (including the
general purpose of such Advances), the aggregate amount of unreimbursed Advances
at the close of business on the Distribution Date, and the general source of
funds for reimbursements;
Β
(xv)Β the
total
amount of Payoffs and Curtailments received during the related Prepayment Period
with respect to Loans in each Loan Group and the aggregate amount of any
Prepayment Charges received in respect thereof;
Β
(xvi)Β with
respect to any Loan that became an REO Property during the preceding calendar
month, the loan number of such Loan, the Principal Balance and the Scheduled
Principal Balance of such Loan;
Β
(xvii)Β to
the
extent provided by the related 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 with respect to the Loans in each Loan
Group;
Β
(xviii)Β the
aggregate amount of Extraordinary Trust Fund expenses withdrawn from the
Distribution Account for such Distribution Date and the aggregate amount of
any
other fees or expenses accrued and paid (identifying the purpose of such fees
and the party receiving such fees or expenses);
Β
(xix)Β the
aggregate Certificate 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;
Β
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Β
(xx)Β the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date on the Loans in each Loan Group, to the extent not covered by payments
by
the Master Servicer pursuant to Section 3.20;
Β
(xxi)Β the
aggregate amount of Relief Act Interest Shortfalls for such Distribution Date
with respect to the Loans in each Loan Group;
Β
(xxii)Β the
respective Pass-Through Rates applicable to each Class of Certificates as of
such Distribution Date [(and whether such Pass-Through Rate was limited by
the
[Net WAC Pass-Through Rate])];
Β
(xxiii)Β the
Basis
Risk Carryover Amount, if any, for such Distribution Date;
Β
(xxiv)Β the
Basis
Risk Carryover Amount, if any, outstanding after reimbursements therefor on
such
Distribution Date;
Β
(xxv)Β the
amount of any deposit to the Class [___] Reserve Fund contemplated by Section
3.25;
Β
(xxvi)Β the
balance of the Class [___] Reserve Fund prior to the deposit or withdrawal
of
any amounts on such Distribution Date;
Β
(xxvii)Β the
amount of any withdrawal from the Class [___] Reserve Fund pursuant to Section
4.1(a)(v);
Β
(xxviii)Β the
balance of each Reserve Fund after all deposits and withdrawals on such
Distribution Date;
Β
(xxix)Β [the
amount withdrawn from the Pre-Funding Account pursuant to SectionΒ 3.26(c)
on that Distribution Date, the amount remaining on deposit in the Pre-Funding
Account following such Distribution Date, and the amount withdrawn from the
Pre-Funding Account and used to purchase Subsequent Loans prior to such
Distribution Date;]
Β
(xxx)Β [for
the
distribution occurring on the Distribution Date immediately following the end
of
the Pre-Funding Period, the balance on deposit in the Pre-Funding Account that
has not been used to purchase Subsequent Loans and that is being distributed
to
the related Senior Certificates as a mandatory distribution of principal, if
any, on such Distribution Date; ]
Β
(xxxi)Β [the
amount withdrawn from the Capitalized Interest Account pursuant to
SectionΒ 3.27 on that Distribution Date and the amount remaining on deposit
in the Capitalized Interest Account following such Distribution Date;]
Β
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Β
(xxxii)Β [if
applicable, during the Pre-funding Period, the information required by Items
1110, 1111 and 1112 of Regulation AB];
Β
(xxxiii)Β [information
on ratio, coverage or other tests used for determining any early amortization,
liquidation or other performance trigger and whether the trigger was
met;]
Β
(xxxiv)Β if
applicable, material modifications, extensions or waivers to Mortgage Loan
terms, fees, penalties or payments during the preceding calendar month that
have
become material over time; and
Β
(xxxv)Β material
breaches of representations and warranties regarding the Mortgage
Loans.
Β
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 Administratorβs internet website. The Securities
Administratorβs internet website shall initially be located at
http:\\xxx.xxxxxxx.xxx and assistance in using the website can be obtained
by
calling the Securities Administratorβs customer service desk at
[______________]. 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.
Β
In
the
case of information furnished pursuant to subclause (i) above, the amounts
shall
be expressed as a dollar amount per single Certificate of the relevant
Class.
Β
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 subclause (i) 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.
Β
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 Class R Certificate a statement setting forth the amount,
if any, actually distributed with respect to the Class R Certificates aggregated
for such calendar year or applicable portion thereof during which such Person
was a Certificateholder.
Β
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.
Β
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Β
On
each
Distribution Date, the Securities Administrator shall provide Bloomberg
Financial Markets, L.P. (βBloombergβ) 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.
Β
Section
4.7Β Advances.
Β
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 Servicerβs 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 related
Available Distribution Amount (determined without regard to Advances to be
made
on the related Distribution Account Deposit Date) shall be less than the total
amount that would be distributed to the related 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. In the event the Master Servicer elects not to make an Advance
because the Master Servicer deems such Advance nonrecoverable pursuant to this
Section 4.7, on the related Distribution Account Deposit Date, the Master
Servicer shall present an Officerβs 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.
Β
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ARTICLE
V
THE
CERTIFICATES
Β
Section
5.1Β The
Certificates.
Β
(a)Β The
Certificates in the aggregate will represent the entire beneficial ownership
interest in the Loans and all other assets included in REMIC I.
Β
The
Certificates will be substantially in the forms annexed hereto as Exhibits
A-1
through A-12. The Certificates of each Class will be issuable in registered
form
only, in denominations of authorized Percentage Interests as described in the
definition thereof. Each Certificate will share ratably in all rights of the
related Class.
Β
Upon
original issue, the Certificates shall be executed and authenticated by the
Securities Administrator and delivered by the Trustee to and upon the written
order of the Depositor. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trust by the Securities Administrator
by an
authorized signatory. Certificates bearing the manual or facsimile signatures
of
individuals who were at any time the proper officers of the Securities
Administrator shall bind the Trust, notwithstanding that such individuals or
any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided herein
executed by the Securities Administrator by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication.
Β
(b)Β The
Certificates, other than the Class R Certificates, Class P Certificates and
Junior Subordinate Certificates, shall initially be issued as one or more
Certificates held by the Book-Entry Custodian or, if appointed to hold such
Certificates as provided below, the Depository and registered in the name of
the
Depository or its nominee and, except as provided below, registration of such
Certificates may not be transferred by the Securities Administrator except
to
another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
(βDefinitive Certificatesβ) in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in
the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents
or
of brokerage firms for which it acts as agent in accordance with the
Depositoryβs normal procedures. The Securities Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and,
if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, the Servicers,
the
Master Servicer and, if the Trustee is not the Book-Entry Custodian, the
Trustee, any other transfer agent (including the Depository or any successor
Depository) to act as Book-Entry Custodian under such conditions as the
predecessor Book-Entry Custodian and the Depository or any successor Depository
may prescribe, provided that the predecessor Book-Entry Custodian shall not
be
relieved of any of its duties or responsibilities by reason of any such
appointment of other than the Depository. If the Securities Administrator
resigns or is removed in accordance with the terms hereof, the successor
Securities Administrator or, if it so elects, the Depository shall immediately
succeed to its predecessorβs duties as Book-Entry Custodian. The Depositor shall
have the right to inspect, and to obtain copies of, any Certificates held as
Book-Entry Certificates by the Book-Entry Custodian.
Β
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96 -
Β
(c)Β Any
Junior Subordinate Certificate or Class P Certificate initially offered and
sold
in offshore transactions in reliance on Regulation S shall be issued in the
form
of a temporary global certificate in definitive, fully registered form (each,
a
βRegulation S Temporary Global Certificateβ), which shall be deposited with the
Securities Administrator or an agent of the Securities Administrator as
custodian for the Depository and registered in the name of Cede & Co. as
nominee of the Depository for the account of designated agents holding on behalf
of Euroclear or Clearstream. Beneficial interests in each Regulation S Temporary
Global Certificate may be held only through Euroclear or Clearstream; provided,
however, that such interests may be exchanged for interests in a Definitive
Certificate in accordance with the requirements described in SectionΒ 5.2.
After the expiration of the Release Date, a beneficial interest in a Regulation
S Temporary Global Certificate may be exchanged for a beneficial interest in
the
related permanent global certificate of the same Class (each, a βRegulation S
Permanent Global Certificateβ), in accordance with the procedures set forth in
SectionΒ 5.2. Each Regulation S Permanent Global Certificate shall be
deposited with the Securities Administrator or an agent of the Securities
Administrator as custodian for the Depository and registered in the name of
Cede
& Co. as nominee of the Depository.
Β
(d)Β The
Junior Subordinate Certificates and Class P Certificates offered and sold to
Qualified Institutional Buyers (βQIBsβ) in reliance on Rule 144A under the
Securities Act (βRule 144Aβ) will be issued in the form of Definitive
Certificates.
Β
(e)Β The
Trustee, the Servicers, the Securities Administrator, the Master Servicer and
the Depositor may for all purposes (including the making of payments due on
the
Book-Entry Certificates and Global Certificates) deal with the Depository as
the
authorized representative of the Certificate Owners with respect to the
Book-Entry Certificates and Global Certificates for the purposes of exercising
the rights of Certificateholders hereunder. The rights of Certificate Owners
with respect to the Book-Entry Certificates and Global Certificates shall be
limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates and Global Certificates
with
respect to any particular matter shall not be deemed inconsistent if they are
made with respect to different Certificate Owners. The Securities Administrator
may establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
Β
-
97 -
Β
If
(i)(A)
the Depositor advises the Securities Administrator in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (B) the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Securities
Administrator in writing that it elects to terminate the book-entry system
through the Depository or (iii) after the occurrence of a Master Servicer Event
of Default, Certificate Owners representing in the aggregate not less than
51%
of the Ownership Interests of the Book-Entry Certificates advise the Securities
Administrator through the Depository, in writing, that the continuation of
a
book-entry system through the Depository is no longer in the best interests
of
the Certificate Owners, the Securities Administrator shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners
requesting the same. With respect to a Global Certificate, the related
Certificate Owner (other than a Holder of a Regulation S Temporary Global
Certificate) may request that its interest in a Global Certificate be exchanged
for a Definitive Certificate. Upon surrender to the Securities Administrator
of
the Book-Entry Certificates by the Book-Entry Custodian or the Depository,
as
applicable, or the Global Certificates by the Depository accompanied by
registration instructions from the Depository for registration of transfer,
the
Securities Administrator shall cause the Definitive Certificates to be issued.
Such Definitive Certificates will be issued in minimum denominations of $10,000
except that any beneficial ownership that was represented by a Book-Entry
Certificate, or a Global Certificate, as applicable in an amount less than
$10,000 immediately prior to the issuance of a Definitive Certificate shall
be
issued in a minimum denomination equal to the amount represented by such
Book-Entry Certificate or a Global Certificate, as applicable. None of the
Depositor, the Servicers, the Master Servicer, the Securities Administrator
or
the Trustee shall be liable for any delay in the delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Securities Administrator on behalf
of
the Trustee, to the extent applicable with respect to such Definitive
Certificates, and the Securities Administrator on behalf of the Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
Β
(f)Β 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, Officerβs Certificate, affidavit, ruling or Opinion of Counsel
described in this Article V.
Β
Section
5.2Β Registration
of Transfer and Exchange of Certificates.
Β
(a)Β The
Securities Administrator shall cause to be kept at one of the offices or
agencies to be appointed by the Securities Administrator in accordance with
the
provisions of SectionΒ 8.11, a Certificate Register for the Certificates 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.
Β
-
98 -
Β
(b)Β No
transfer of any Junior Subordinate Certificate or Class P Certificate shall
be
made unless that transfer is made pursuant to an effective registration
statement under the Securities Act, and 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 a Junior Subordinate Certificate or Class P Certificate is to be
made without registration or qualification (other than in connection with the
initial transfer of any such Certificate by the Depositor), the Securities
Administrator shall require receipt of: (i) if such transfer is purportedly
being made in reliance upon Rule 144A under the Securities Act, written
certifications from the Certificateholder desiring to effect the transfer and
from such Certificateholderβs prospective transferee, substantially in the form
attached hereto as Exhibit B-1; (ii) if such transfer is purportedly being
made
in reliance upon Rule 501(a) under the Securities Act, written certifications
from the Certificateholder desiring to effect the transfer and from such
Certificateholderβs prospective transferee, substantially in the form attached
hereto as Exhibit B-2; (iii) if such transfer is purportedly being made in
reliance on Regulation S, a written certification from the prospective
transferee, substantially in the form attached hereto as Exhibit B-3 and (iv)
in
all other cases, an Opinion of Counsel satisfactory to the Securities
Administrator 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, the Master Servicer, the Securities
Administrator or the Servicers), together with copies of the written
certification(s) of the Certificateholder desiring to effect the transfer and/or
such Certificateholderβs prospective transferee upon which such Opinion of
Counsel is based, if any. Neither of the Depositor nor the Securities
Administrator is obligated to register or qualify any such Certificates under
the Securities Act or any other securities laws or to take any action not
otherwise required under this Agreement to permit the transfer of such
Certificates without registration or qualification. Any Certificateholder
desiring to effect the transfer of any such Certificate shall, and does hereby
agree to, indemnify the Trustee, the Depositor, the Master Servicer, the
Securities Administrator and the Servicers 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.
Β
A
holder
of a beneficial interest in a Regulation S Temporary Global Certificate must
provide Euroclear or Clearstream, as the case may be, with a certificate in
the
form of Annex A to Exhibit B-4 hereto certifying that the beneficial owner
of
the interest in such Global Certificate is not a U.S. Person (as defined in
Regulation S), and Euroclear or Clearstream, as the case may be, must provide
to
the Trustee and Securities Administrator a certificate in the form of Exhibit
B-4 hereto prior to (i) the payment of interest or principal with respect to
such holderβs beneficial interest in the Regulation S Temporary Global
Certificate and (ii) any exchange of such beneficial interest for a beneficial
interest in a Regulation S Permanent Global Certificate.
Β
(c)Β No
transfer of a Class P Certificate or a Residual Certificate or any interest
therein shall be made to any Plan subject to ERISA or SectionΒ 4975 of the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person acquiring such Certificates with βPlan Assetsβ of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R. Β§
2510.3-101 (βPlan Assetsβ) unless the Securities Administrator is provided with
an Opinion of Counsel on which the Depositor, the Master Servicer, the
Securities Administrator, the Trustee and the Servicers may rely, which
establishes to the satisfaction of the Securities Administrator that the
purchase of such Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or
SectionΒ 4975 of the Code and will not subject the Depositor, the Servicers,
the Trustee, the Master Servicer, the Securities Administrator or the Trust
Fund
to any obligation or liability (including obligations or liabilities under
ERISA
or SectionΒ 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 Servicers, the Trustee, the Master Servicer, the Securities Administrator,
the Trust Fund. An Opinion of Counsel will not be required in connection with
the initial transfer of any such Certificate by the Depositor to an affiliate
of
the Depositor (in which case, the Depositor or any affiliate thereof shall
have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets) and the Securities Administrator shall be entitled to
conclusively rely upon a representation (which, upon the request of the
Securities Administrator, shall be a written representation) from the Depositor
of the status of such transferee as an affiliate of the Depositor.
Β
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99 -
Β
Each
Transferee of a Class M Certificate or Class B Certificate will be deemed to
have represented by virtue of its purchase or holding of such Certificate (or
interest therein) or, with respect to each Transferee of a Junior Subordinate
Certificate, shall certify that either (a) such Transferee is not a Plan or
purchasing such Certificate with Plan Assets, (b) for Certificates other than
the Junior Subordinate Certificates, it has acquired and is holding such
Certificate in reliance on Prohibited Transaction Exemption (βPTEβ) 94-84 or FAN
97-03E, 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 βExemptionβ), 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 βBBB-β (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 βinsurance
company general accountβ (as defined in PTCE 95-60, and (iii) the conditions set
forth in Sections I and III of PTCE 95-60 have been satisfied.
Β
If
any
Certificate or any interest therein is acquired or held in violation of the
conditions described in this SectionΒ 5.2(c), 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 certificate
or
interest therein was effected in violation of the conditions described in this
SectionΒ 5.2(c) shall indemnify and hold harmless the Depositor, the
Trustee, the Servicers, the Master Servicer, the Securities Administrator and
the Trust Fund from and against any and all liabilities, claims, costs or
expenses incurred by those parties as a result of that acquisition or
holding.
Β
(d)Β 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:
Β
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100 -
Β
(i)Β 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.
Β
(ii)Β No
Person
shall acquire an Ownership Interest in a Class R Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
Β
(iii)Β 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:
Β
(A)
Β 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
Β
(B)
Β 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.
Β
(iv)Β 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.
Β
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Β
(v)Β 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 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.
Β
(vi)Β 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.
Β
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.
Β
(e)Β Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Securities Administrator maintained
for such purpose pursuant to SectionΒ 8.11, the Securities Administrator
shall execute, authenticate and deliver, in the name of the designated
Transferee or Transferees, one or more new Certificates of the same Class of
a
like aggregate Percentage Interest.
Β
(f)Β At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with Authorized Denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Securities Administrator maintained
for
such purpose pursuant to SectionΒ 8.11. 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 transfer or exchange shall (if so required by the Securities Administrator)
be duly endorsed by, or be accompanied by a written instrument of transfer
in
the form satisfactory to the Securities Administrator duly executed by, the
Holder thereof or his attorney duly authorized in writing.
Β
-
102 -
Β
(g)Β No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, 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.
Β
(h)Β All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Securities Administrator in accordance with its customary
procedures.
Β
Section
5.3Β Mutilated,
Destroyed, Lost or Stolen Certificates.
Β
If
(i)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof,
and
(ii) there is delivered to Securities Administrator such security or indemnity
as may be required by it to save it harmless, then, in the absence of actual
knowledge by the Securities Administrator 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 the same Class
and
of like denomination and Percentage Interest. Upon the issuance of any new
Certificate under this Section, 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 (including the fees
and expenses of the Securities Administrator) connected therewith. Any
replacement Certificate issued pursuant to this SectionΒ shall constitute
complete and indefeasible evidence of ownership in the applicable REMIC created
hereunder, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Β
Section
5.4Β Persons
Deemed Owners.
Β
The
Depositor, the Servicers, the Trustee, the Master Servicer, the Securities
Administrator and any agent of any of them may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to SectionΒ 4.1 and for all other
purposes whatsoever, and none of the Depositor, the Servicers, the Trustee,
the
Master Servicer, the Securities Administrator or any agent of any of them shall
be affected by notice to the contrary.
Β
Section
5.5Β Certain
Available Information.
Β
-
103 -
Β
On
or
prior to the date of the first sale of any Junior Subordinate Certificate or
Class P Certificate to an Independent third party, the Depositor shall provide
to the Securities Administrator ten copies of any private placement memorandum
or other disclosure document used by the Depositor in connection with the offer
and sale of such Certificate. In addition, if any such private placement
memorandum or disclosure document is revised, amended or supplemented at any
time following the delivery thereof to the Securities Administrator, the
Depositor promptly shall inform the Securities Administrator of such event
and
shall deliver to the Securities Administrator ten copies of the private
placement memorandum or disclosure document, as revised, amended or
supplemented. The Securities Administrator shall maintain at its office as
set
forth in SectionΒ 11.5 hereof and shall make available free of charge during
normal business hours for review by any Holder of a Certificate or any Person
identified to the Securities Administrator as a prospective transferee of a
Certificate, originals or copies of the following items: (i) in the case of
a
Holder or prospective transferee of a Junior Subordinate Certificate or Class
P
Certificate, the private placement memorandum or other disclosure document
relating to such Class of Certificates, in the form most recently provided
to
the Securities Administrator; and (ii) in all cases, (A) this Agreement and
any
amendments hereof entered into pursuant to SectionΒ 11.1, (B) all monthly
statements required to be delivered to Certificateholders of the Junior
Subordinate Certificates and Class P Certificates pursuant to SectionΒ 4.6
since the Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date and (C) any copies of all
Officersβ Certificates of the Servicers since the Closing Date delivered to the
Master Servicer to evidence such Personβs determination that any Monthly Advance
or Servicing Advance was, or if made, would be a Nonrecoverable Monthly Advance
or Nonrecoverable Servicing Advance. Copies and mailing of any and all of the
foregoing items will be available from the Securities Administrator upon request
at the expense of the Person requesting the same.
Β
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ARTICLE
VI
THE
DEPOSITOR AND THE MASTER SERVICER AND THE CREDIT RISK MANAGER
Β
Section
6.1Β Liability
of the Depositor and the Master Servicer.
Β
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.
Β
Section
6.2Β Merger
or Consolidation of the Depositor or the Master Servicer.
Β
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 Loans and
to
perform its respective duties under this Agreement.
Β
The
Depositor or the Master Servicer may be merged or consolidated with or into
any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Depositor or the Master Servicer shall be a party, or any Person succeeding
to
the business of the Depositor or the Master Servicer, shall be the successor
of
the Depositor or the Master Servicer, as the case may be, hereunder, without
the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the Rating Agenciesβ 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).
Β
Section
6.3Β Limitation
on Liability of the Depositor, the Master Servicer, the Servicers, the
Securities Administrator and Others.
Β
-
105 -
Β
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, the Servicers 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 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 Custodians 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,
any Servicing Agreement or the Cap Contract, or any loss, liability or expense
incurred by any of such Persons other than by reason of such Personβs 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, any 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, the
applicable Servicing Agreement or the Cap Contract and, in its opinion, does
not
involve it in any expense or liability; provided, however, that each of the
Depositor, the Master Servicer, the Custodians 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 Custodians, 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.
Β
Section
6.4Β Limitation
on Resignation of the Master Servicer.
Β
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 Servicerβs
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Β
Section
6.5Β Assignment
of Master Servicing.
Β
-
106 -
Β
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 Agencyβs 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 officerβs 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.
Β
Section
6.6Β Rights
of the Depositor in Respect of the Master Servicer.
Β
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 Servicerβs 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 Servicerβs 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 Servicerβs 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 Fund, 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 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.
Β
-
107 -
Β
Section
6.7Β Duties
of the Credit Risk Manager.
Β
For
and
on behalf of the Depositor, pursuant to the Credit Risk Management Agreements
the Credit Risk Manager will provide reports and recommendations concerning
certain delinquent and defaulted Loans, and as to the collection of any
Prepayment Charges with respect to the Loans. Such reports and recommendations
will be based upon information provided to the Credit Risk Manager pursuant
to
the related Credit Risk Management Agreement, and the Credit Risk Manager shall
look solely to the related Servicer and/or Master Servicer for all information
and data (including loss and delinquency information and data) relating to
the
servicing of the related Loans. Upon any termination of the Credit Risk Manager
or the appointment of a successor Credit Risk Manager, the Depositor shall
give
written notice thereof to the Servicers, the Master Servicer, the Trustee and
each Rating Agency. Notwithstanding the foregoing, the termination of the Credit
Risk Manager pursuant to this Section shall not become effective until the
appointment of a successor Credit Risk Manager.
Β
Section
6.8Β Limitation
Upon Liability of the Credit Risk Manager.
Β
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
or
the Depositor for any action taken or for refraining from the taking of any
action made in good faith pursuant to this Agreement, in reliance upon
information provided by a Servicer under a Credit Risk Management Agreement,
or
for errors in judgment; provided, however, that this provision shall not protect
the Credit Risk Manager or any such person against liability that would
otherwise be imposed by reason of willful malfeasance or bad faith in its
performance of its duties. The Credit Risk Manager and any director, officer,
employee, or agent of the Credit Risk Manager may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder, and may rely in good faith upon the
accuracy of information furnished by a Servicer pursuant to a Credit Risk
Management Agreement in the performance of its duties thereunder and
hereunder.
Β
Section
6.9Β Removal
of the Credit Risk Manager.
Β
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
evidencing, in aggregate, not less than 66 2/3% of the aggregate Percentage
Interests of all Classes of Certificates, in the exercise of its or their sole
discretion. The Certificateholders shall provide written notice of the Credit
Risk Managerβs removal to the Trustee. Upon receipt of such notice, the Trustee
shall provide written notice to the Credit Risk Manager of its removal, which
shall be effective upon receipt of such notice by the Credit Risk
Manager.
Β
Section
6.10Β Transfer
of Servicing by Sponsor of Certain Loans Serviced by [GMAC].
Β
-
108 -
Β
Sponsor
may, at its option, transfer the servicing responsibilities of [GMAC] as a
Servicer with respect to the Loans serviced pursuant to the [GMAC 2005 Servicing
Agreement] at any time without cause. No such transfer shall become effective
unless and until a successor to [GMAC] shall have been appointed to service
and
administer the related Loans pursuant to the terms and conditions of the [GMAC
2005 Servicing Agreement] or a servicing agreement that is reasonably acceptable
to Sponsor, the Master Servicer and the Rating Agencies. No appointment shall
be
effective unless (i) such successor to [GMAC] meets the eligibility criteria
set
forth in this SectionΒ 6.10, (ii) the Master Servicer shall have consented
to such appointment, (iii) the Rating Agencies have confirmed in writing that
such appointment will not result in a downgrade, qualification or withdrawal
of
the then current ratings assigned to the Certificates and (iv) all amounts
reimbursable to [GMAC under the GMAC 2005 Servicing Agreement] shall have been
paid to [GMAC], and all servicing transfer costs incurred by the Master Servicer
shall have been paid to it, by the successor appointed pursuant to the terms
of
this SectionΒ 6.10 or by Sponsor including without limitation, all
unreimbursed Monthly Advances and Servicing Advances made by [GMAC] and all
out-of-pocket expenses of [GMAC] incurred in connection with the transfer of
servicing to such successor. Sponsor shall provide a copy of the written
confirmation of the Rating Agencies and the servicing agreement executed by
such
successor to the Trustee, the Securities Administrator and the Master Servicer.
In connection with such appointment and assumption described herein, Sponsor
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 [GMAC under the GMAC 2005
Servicing Agreement]. Sponsor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
Β
Notwithstanding
the foregoing, any successor to [GMAC] appointed under this Agreement with
respect to the Loans serviced pursuant to the [GMAC 2005 Servicing Agreement]
must (i) be an established mortgage loan servicing institution that is a Xxxxxx
Mae and Xxxxxxx Mac approved seller/servicer, (ii) be approved by each Rating
Agency by a written confirmation from each Rating Agency that the appointment
of
such successor Servicer would not result in the reduction or withdrawal of
the
then current ratings of any outstanding Class of Certificates, (iii) have a
net
worth of not less than $15,000,000 and (iv) assume all the responsibilities,
duties or liabilities of [GMAC] (other than liabilities of [GMAC] incurred
prior
to the transfer of servicing from [GMAC]) under the [GMAC 2005 Servicing
Agreement] in connection with the servicing and administration of the related
Loans or a servicing agreement that is reasonably acceptable to Sponsor, the
Master Servicer and the Rating Agencies.
Β
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109 -
ARTICLE
VII
DEFAULT
Β
Section
7.1Β Master
Servicer Events of Default.
Β
βMaster
Servicer Event of Default,β wherever used herein, means any one of the following
events:
Β
(i)Β Reserved;
Β
(ii)Β 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 thirty (30) days after the date on which
written notice of such failure, or as otherwise set forth in this Agreement,
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 the related Certificates evidencing, in aggregate,
not
less than 25% of the aggregate Certificate Principal Balance of the
Certificates; or
Β
(iii)Β 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 ninety (90) days; or
Β
(iv)Β 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
Β
(v)Β 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
Β
(vi)Β 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 Section 4.7
which continues unremedied until 3:00 p.m. New York time on the Business Day
immediately following the Distribution Account Deposit Date.
Β
-
110 -
Β
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 aggregate Certificate
Principal Balance of the Certificates, 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 (and the Securities
Administrator if the Master Servicer and the Securities Administrator are the
same entity) in its capacity as Master Servicer (and in its capacity as
Securities Administrator if the Master Servicer and the Securities Administrator
are the same entity) 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 (and the Securities Administrator if the Master Servicer and
the
Securities Administrator are the same entity) in its capacity as Master Servicer
under this Agreement (and in its capacity as Securities Administrator if the
Master Servicer and the Securities Administrator are the same entity) 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
(and, if applicable, the Securities Administrator) 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, (and, if
applicable, the Securities Administrator) 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 (and, if applicable, the Securities
Administrator) agrees promptly (and in any event no later than ten (10) 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 Servicerβs (and, if
applicable, the Securities Administratorβs) functions under this Agreement, and
to cooperate with the Trustee in effecting the termination of the Master
Servicerβs (and, if applicable, the Securities Administratorβs) 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 Trusteeβs 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.
Β
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Β
Section
7.2Β Trustee
to Act; Appointment of Successor.
Β
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 (and, if
applicable, the Securities Administrator) in its capacity as Master Servicer
(and, if applicable, the Securities Administrator) 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 Servicerβs obligations to make
Advances no later than each Distribution Date pursuant to Section 4.7; provided,
however, 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 4.7; and provided
further, that any failure to perform such duties or responsibilities caused
by
the Master Servicerβs 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 remuneration 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 Certificate Principal Balance of the
Certificates 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.
Β
No
appointment of a successor to the Master Servicer (and, if applicable, the
Securities Administrator) under this Agreement shall be effective until the
assumption by the successor of all of the Master Servicerβs (and, if applicable,
the Securities Administratorβs) 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 (and, if applicable, the Securities Administrator) 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 (and,
if
applicable, the Securities Administrator) 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 (and, if applicable, the Securities Administrator) shall be
reimbursed out of the Trust Fund.
Β
-
112 -
Β
Section
7.3Β Notification
to Certificateholders.
Β
(a)Β Upon
any
termination of the Master Servicer pursuant to Section 7.1 or any appointment
of
a successor to the Master Servicer pursuant to Section 7.2, the Trustee shall
give prompt written notice thereof to the Certificateholders at their respective
addresses appearing in the Certificate Register.
Β
(b)Β Not
later
than the later of sixty (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 (5) 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, at the expense of the Trust
Fund, notice of each such occurrence, unless such default or Master Servicer
Event of Default shall have been cured or waived.
Β
Section
7.4Β Waiver
of Master Servicer Events of Default.
Β
The
Holders evidencing, in aggregate, not less than 66-2/3% of the aggregate
Percentage Interests of all Certificates affected by any default or Master
Servicer Event of Default hereunder may waive such default or Master Servicer
Event of Default; provided,
however,
a
default or Master Servicer Event of Default under clause (vi) of Section 7.1
may
be waived only by all of the Holders of the related 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.
Β
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ARTICLE
VIII
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Β
Section
8.1Β Duties
of Trustee and Securities Administrator.
Β
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 personβs own affairs. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
Β
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.
Β
No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided,
however,
that:
Β
(i)Β 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 and the Securities
Administrator 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;
Β
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114 -
Β
(ii)Β 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
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
Β
(iii)Β 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% (or such other percentage set forth in this Agreement) of the
aggregate Certificate Principal Balance of the Certificates, 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.
Β
Section
8.2Β Certain
Matters Affecting Trustee and Securities Administrator.
Β
(a)Β Except
as
otherwise provided in Section 8.1:
Β
(i)Β Before
taking any action pursuant to this Agreement, the Trustee and the Securities
Administrator may request and rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officersβ 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;
Β
(ii)Β 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;
Β
(iii)Β 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 personβs own affairs;
Β
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Β
(iv)Β 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;
Β
(v)Β 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,
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;
Β
(vi)Β 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;
Β
(vii)Β 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);
Β
(viii)Β 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;
Β
(ix)Β 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
Β
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Β
(x)Β 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.
Β
(b)Β The
Trustee is hereby directed by the Depositor to execute the Cap Contract on
behalf of the Trust Fund in the form presented to it by the Depositor and shall
have no responsibility for the contents of the Cap Contract, including, without
limitation, the representations and warranties contained therein. Any funds
payable by the Trustee under the Cap Contract at closing shall be paid by the
Depositor. Notwithstanding anything to the contrary contained herein or in
the
Cap Contract, the Trustee shall not be required to make any payments to the
counterparty under the Cap Contract.
Β
(c)Β All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of
such
Certificates, subject to the provisions of this Agreement.
Β
Section
8.3Β Trustee
and Securities Administrator not Liable for Certificates or
Loans.
Β
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), the Cap Contract 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.
Β
Section
8.4Β Trustee,
Master Servicer and Securities Administrator May Own
Certificates.
Β
Each
of
the Trustee, the Master Servicer 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, Master
Servicer or the Securities Administrator.
Β
Section
8.5Β Fees
and Expenses of Trustee and Securities Administrator.
Β
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Β
The
fees
of the Trustee and the Securities Administrator hereunder and of Xxxxx Fargo
under the Xxxxx Fargo 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
Custodians and any director, officer, employee or agent of the Trustee, the
Securities Administrator and the Custodians shall be indemnified by the Trust
Fund and held harmless against any loss, liability or expense (including
reasonable attorneyβs 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 or the Cap Contract, 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, respectively, pursuant to
Section 10.1(g) or (iii) any loss, liability or expense incurred by reason
of
willful misfeasance, bad faith or gross negligence by the Trustee, or Securities
Administrator in the performance of its duties hereunder or by reason of
reckless disregard of its obligations and duties hereunder. The Master Servicer
agrees to indemnify the Trustee, from, and hold the Trustee harmless against,
any loss, liability or expense (including reasonable attorneyβs fees and
expenses) incurred by the Trustee by reason of the Master Servicerβs willful
misfeasance, bad faith or gross negligence in the performance of its duties
under this Agreement or by reason of the Master Servicerβs 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 Servicerβs own funds, without reimbursement from REMIC
I therefor.
Β
Section
8.6Β Eligibility
Requirements for Trustee and Securities Administrator.
Β
The
Trustee and the Securities Administrator shall at all times be a corporation
or
an association (other than the Depositor, Sponsor, 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 SectionΒ 8.7.
Β
Additionally,
the Securities Administrator (i) may not be an originator, Master Servicer,
Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department, (ii) must be authorized
to exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least βA/F1β by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by S&P or Xxxxxβx (or such rating
acceptable to Fitch pursuant to a rating confirmation). If no successor
securities administrator shall have been appointed and shall have accepted
appointment within sixty (60) days after Xxxxx Fargo Bank, N.A., as Securities
Administrator, ceases to be the securities administrator pursuant to this
Section 8.6, then the Trustee shall perform the duties of the Securities
Administrator pursuant to this Agreement. The Trustee shall notify the Rating
Agencies of any change of Securities Administrator. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act, promptly appoint or petition a court of competent jurisdiction to
appoint, a Person that satisfies the eligibility criteria set forth herein
as
the Trustee under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Trustee under this Agreement.
Xxxxx Fargo Bank, N.A. or one of its Affiliates shall act as Securities
Administrator for so long as it is Master Servicer under this
Agreement.
Β
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Β
Section
8.7Β Resignation
and Removal of Trustee and Securities Administrator.
Β
The
Trustee and the Securities Administrator may at any time resign (including,
in
the case of the Securities Administrator, in connection with the resignation
or
termination of the Master Servicer) 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 thirty (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.
Β
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 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.
Β
The
Holders of Certificates evidencing, in aggregate, not less than 51% of the
Certificate Principal Balance of the Certificates, 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.
Β
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Β
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.
Β
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the
Securities Administrator shall at all times be the same Person.
Β
Section
8.8Β Successor
Trustee or Securities Administrator.
Β
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
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.
Β
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.
Β
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 the related
Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within ten (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.
Β
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Β
Section
8.9Β Merger
or Consolidation of Trustee or Securities Administrator.
Β
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.
Β
Section
8.10Β Appointment
of Co-Trustee or Separate Trustee.
Β
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of REMIC I or property
securing the same may at the time be located, the 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 REMIC
I, and to vest in such Person or Persons, in such capacity, and for the benefit
of the Holders of the Certificates, such title to REMIC I, or any part thereof,
and, subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the 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 notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.8 hereof.
Β
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 REMIC
I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Β
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.
Β
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Β
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.
Β
Section
8.11Β Appointment
of Office or Agency.
Β
The
Securities Administrator shall appoint an office or agency in the City of
Minneapolis located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, 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.
Β
Section
8.12Β Representations
and Warranties of the Trustee.
Β
The
Trustee hereby represents and warrants to the Master Servicer, the Securities
Administrator and the Depositor as applicable, as of the Closing Date,
that:
Β
(i)Β It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
Β
(ii)Β 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.
Β
(iii)Β 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.
Β
(iv)Β 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 creditorsβ rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
Β
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122 -
Β
(v)Β 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.
Β
(vi)Β 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.
Β
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ARTICLE
IX
TERMINATION
Β
Section
9.1Β Termination
Upon Purchase or Liquidation of the Loans.
Β
(a)Β 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 and the Trustee 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 REMIC I 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 Master Servicer (as defined below) of all
Loans
and each REO Property remaining in REMIC I and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in REMIC I; provided,
however,
that in
no event shall the trust created hereby continue beyond the earlier of (a)
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 and (b) theΒ Last
Scheduled Distribution Date. The purchase by the Master Servicer of all Loans
and each REO Property remaining in REMIC I shall be at a price (the βTermination
Priceβ) equal to the sum of (i) the greater of (A) the aggregate Purchase Price
of all the Loans included in REMIC I, plus the appraised value of each REO
Property, if any, included in REMIC I, such appraisal to be conducted by an
appraiser mutually agreed upon by the Master Servicer and the Trustee in their
reasonable discretion and (B) the aggregate fair market value of all of the
assets of REMIC I (as determined by the Master Servicer, as of the close of
business on the third Business Day next preceding the date upon which notice
of
any such termination is furnished to Certificateholders pursuant to the third
paragraph of this SectionΒ 9.1) plus (ii) any amounts due the Servicers and
the Master Servicer in respect of unpaid Servicing Fees, Master Servicing
Compensation and outstanding Monthly Advances and Servicing Advances.
Β
(b)Β The
Master Servicer shall have the right to purchase all of the Loans and each
REO
Property remaining in REMIC I pursuant to clause (i) of the preceding paragraph
no later than the Determination Date in the month immediately preceding the
Distribution Date on which the Certificates will be retired; provided,
however,
that
the Master Servicer may elect to purchase all of the Loans and each REO Property
remaining in REMIC I pursuant to clause (i) above only if the aggregate
Scheduled Principal Balance of the Loans and the fair market value of each
REO
Property remaining in the Trust Fund at the time of such election is less than
or equal to 10% of the aggregate Scheduled Principal Balance of the Loans as
of
the Cut-Off Date plus the Original Pre-Funded Amount.
Β
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Β
(c)Β 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 Master Servicer, not earlier than the 15th day and not later
than the 25th day of the month next preceding the month of the final
distribution on the Certificates or (b) otherwise during the month of such
final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and the final payment in respect of REMIC I 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 REMIC I 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 I by the Master Servicer, the Master Servicer
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 9.1(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 Master Servicer 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.
Β
(d)Β 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 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 Certificateholderβs 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.
Β
-
125 -
Β
Immediately
following the deposit of funds in trust hereunder in respect of the
Certificates, the Trust Fund shall terminate.
Β
Section
9.2Β Additional
Termination Requirements.
Β
(a)Β In
the
event that the Master Servicer 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 REMIC I pursuant to Section 9.1, the Trust Fund shall be terminated
in accordance with the following additional requirements:
Β
(i)Β The
Securities Administrator shall specify the first day in the 90-day liquidation
period in a statement attached to each REMICβs 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 Master Servicer;
Β
(ii)Β 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 REMIC I to the Master Servicer for cash; and
Β
(iii)Β 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.
Β
(b)Β At
the
expense of the requesting Master Servicer (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
Master Servicer shall prepare or cause to be prepared the documentation required
in connection with the adoption of a plan of liquidation of each REMIC pursuant
to this Section 9.2.
Β
-
126 -
Β
(c)Β By
their
acceptance of Certificates, the Holders thereof hereby agree to authorize the
Securities Administrator to specify the 90-day liquidation period for each
REMIC, which authorization shall be binding upon all successor
Certificateholders.
Β
-
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ARTICLE
X
REMIC
PROVISIONS
Β
Section
10.1Β REMIC
Administration.
Β
(a)Β The
Trustee shall elect to treat each REMIC as a 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. For the purposes of the
REMIC election in respect of REMIC I, the REMIC I Regular Interests shall be
designated as the βregular interestsβ in REMIC I and Component R-1 shall be
designated as the βresidual interestβ in REMIC I. The Class [__], Class [__],
Class [__], Class [__], Class [__], Class [__], Class [__], Class [__], Class
[__], Class [__], Class [__], Class [__], Class [__], Class [__], Class [__],
Class [__], Class [__], Class [__], Class [__], Class [__], Class [__], Class
[__], Class [__] and Class [__] Certificates shall be designated as the βregular
interestsβ in REMIC II and Component R-2 shall be designated as the βresidual
interestβ in REMIC II. The Trustee shall not permit the creation of any
βinterestsβ in each Trust REMIC (within the meaning of Section 860G of the Code)
other than the REMIC I Regular Interests and the interests represented by the
Certificates.
Β
(b)Β The
Closing Date is hereby designated as the βStartup Dayβ of each REMIC created
hereunder within the meaning of Section 860G(a)(9) of the Code.
Β
(c)Β 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
each 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 each REMICβs tax
matters person shall (i) act on behalf of the Trust Fund in relation to any
tax
matter or controversy involving any 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 related 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.
Β
(d)Β The
Securities Administrator shall prepare and file and the Trustee shall sign
all
of the Tax Returns in respect of each REMIC created hereunder. The expenses
of
preparing and filing such returns shall be borne by the Securities Administrator
without any right of reimbursement therefor.
Β
-
128 -
Β
(e)Β The
Securities Administrator shall perform on behalf of each REMIC all reporting
and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
as required by the Code, the REMIC Provisions or other such compliance guidance,
the 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 premium (using the prepayment assumptions (as
set forth in the Prospectus) 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 each 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.
Β
(f)Β To
the
extent in the control of the Trustee or the Securities Administrator, each
such
Person (i) shall take such action and shall cause each 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 each 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 βAdverse REMIC Eventβ) 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 any 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 any REMIC or the respective
assets of each, or causing any 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
any REMIC, and the Securities Administrator shall not take any such action
or
cause any 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.
Β
-
129 -
Β
(g)Β In
the
event that any tax is imposed on βprohibited transactionsβ of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the βnet income from
foreclosure propertyβ of such REMIC as defined in Section 860G(c) of the Code,
on any contributions to any such 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.
Β
(h)Β The
Trustee and the Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and
on
an accrual basis.
Β
(i)Β Following
the Startup Day, the Trustee shall not accept any contributions of assets to
any
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 related REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject such REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
Β
(j)Β Neither
the Trustee nor the Securities Administrator shall knowingly enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services nor permit any REMIC to receive any income from assets other than
βqualified mortgagesβ as defined in Section 860G(a)(3) of the Code or βpermitted
investmentsβ as defined in Section 860G(a)(5) of the Code.
Β
(k)Β 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
each
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
each
REMIC as required by IRS Form 8811.
Β
Section
10.2Β Prohibited
Transactions and Activities.
Β
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 REMIC I (iii) the termination of REMIC
I
pursuant to Article IX of this Agreement, (iv) a substitution pursuant to
Article II of this Agreement or (v) a purchase of Loans pursuant to Article
II
of this Agreement), nor acquire any assets for any 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 any 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 (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 any
REMIC as a REMIC or (b) cause any REMIC to be subject to a tax on βprohibited
transactionsβ or βcontributionsβ pursuant to the REMIC Provisions.
Β
-
130 -
Β
Section
10.3Β Indemnification.
Β
(a)Β 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 Trusteeβs 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.
Β
(b)Β The
Master Servicer agrees to indemnify the Trust Fund, the Depositor and the
Trustee for any taxes and costs including, without limitation, any reasonable
attorneysβ fees imposed on or incurred by the Trust Fund, the Depositor or the
Trustee, as a result of the Master Servicerβs 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.
Β
(c)Β 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 Administratorβs 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.
Β
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131 -
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Β
Section
11.1Β 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 two REMICs at all times that any Certificates are outstanding,
provided, that such action shall not, as evidenced by an Opinion of Counsel
addressed 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.
Β
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
Senior Certificates (other than the Class R Certificates) in a manner other
than
as described in (a) above without the consent of the Holders of such Senior
Certificates (other than the Class R Certificates) aggregating not less than
66-2/3% of the aggregate Percentage Interest evidenced by all Senior
Certificates (other than the Class R 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 Holders of the
Class P-1 Certificates in a manner other than as described in clause (a) above
without the consent of the Holders of the Class P-1 Certificates ; (e) adversely
affect in any material respect the interest of the Holders of the Class P-2
Certificates in a manner other than as described in clause (a) above without
the
consent of the Holders of the Class P-2 Certificates ; (f) adversely affect
in
any material respect the interest of the Class R Certificateholder without
the
consent of the Holder of the Class R Certificates; (g) 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 (h) 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 Senior Certificates (other than the Class R
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 two REMICs. 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 Section 3.18 hereof shall not require the consent
of
any Certificateholder or any Opinion of Counsel or Rating Agency
confirmation.
Β
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132 -
Β
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 any
of
REMIC I or REMIC II of the Trust Fund to fail to qualify as a REMIC at any
time
that any REMIC Regular Interests or Regular Interest Certificates are
outstanding.
Β
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.
Β
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.
Β
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 Trusteeβs own rights, duties or immunities under this
Agreement.
Β
Section
11.2Β 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.
Β
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.
Β
Section
11.3Β 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 Certificateholderβs 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.
Β
-
133 -
Β
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.
Β
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 sixty (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.
Β
Section
11.4Β 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 SECTION
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.
Β
Section
11.5Β 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
Mortgage Securities, Inc., Mortgage Loan Trust, Series 200[__]-[__], (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, [Address of Master Servicer] and for overnight delivery to
[Address of Master Servicer], Attention: Deutsche Mortgage Securities, Inc.,
200[__]-[__] (telecopy number: (000) 000-0000), 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 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.
Β
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Β
Section
11.6Β Severability
of Provisions.
Β
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.
Β
Section
11.7Β Notice
to Rating Agencies.
Β
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:
Β
| Β |
1.
|
Any
material change or amendment to this
Agreement;
|
Β
| Β |
2.
|
The
occurrence of any Master Servicer Event of Default that has not been
cured
or waived;
|
Β
| Β |
3.
|
The
resignation or termination of the Master Servicer or the
Trustee;
|
Β
| Β |
4.
|
The
repurchase or substitution of Loans pursuant to or as contemplated
by
Section 2.3; and
|
Β
| Β |
5.
|
Any
event that would result in the inability of the Trustee to make advances
regarding delinquent Loans pursuant to Section
7.2.
|
Β
The
Securities Administrator shall promptly provide notice to the Rating Agencies
with respect to each of the following:
Β
| Β |
1.
|
The
final payment to the Holders of any Class of Certificates;
and
|
Β
| Β |
2.
|
Any
change in the location of the Distribution
Account.
|
Β
The
Master Servicer shall make available to each Rating Agency copies of the
following:
Β
| Β |
1.
|
Each
annual statement as to compliance described in Section 3.16;
and
|
Β
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135 -
| Β |
2.
|
Each
Assessment of Compliance and Attestation Report described in Section
3.17.
|
Β
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 & Poorβs, a
division of the XxXxxx-Xxxx Companies, Inc.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and to
Xxxxxβx 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.
Β
Section
11.8Β Article
and Section References.
Β
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
Β
Section
11.9Β Grant
of Security Interest.
Β
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 Fund 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
Fund
and for the benefit of the related 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 Fund and for the benefit
of
the related Certificateholders, of a security interest in all of the Depositorβs
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 in the Capitalized Interest Account and amounts, other than investment
earnings, from time to time held or invested in the Distribution Account and
any
Pre-Funding 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 Depositorβs 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 Fund 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 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 Fund and for the benefit of
the
Certificateholders.
Β
-
136 -
Β
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
Β
-
137 -
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.
Β
|
DEUTSCHE
MORTGAGE SECURITIES, INC.,
as
Depositor
|
||
|
Β
Β
By:
|
Β
Β
Β
|
|
|
Name:
|
Β | |
|
Title:
|
Β | |
| Β | Β | |
| Β | Β | |
|
By:
|
Β
|
|
|
Name:
|
Β | |
|
Title:
|
Β | |
| Β | Β | |
| Β | Β | |
| Β | Β | |
|
[NAME
OF MASTER SERVICER]
as
Master Servicer and Securities
Administrator
|
||
| Β | Β | |
| Β | Β | |
|
By:
|
Β
|
|
|
Name:
|
Β | |
|
Title:
|
Β | |
| Β | Β | |
| Β | Β | |
| Β |
Β
|
|
|
[NAME
OF TRUSTEE], not in its individual capacity but solely as
Trustee
|
||
| Β | Β | |
| Β | Β | |
|
By:
|
Β | |
|
Name:
|
Β | |
|
Title:
|
Β | |
Β
With
Respect to Sections 6.7, 6.8 and 6.9:
[NAME
OF
CREDIT RISK MANAGER]
By:Β
____________________________________
Name:
Title:
ACKNOWLEDGED
AND AGREED
with
respect to Section 6.10:
DB
STRUCTURED PRODUCTS, INC.
By:Β
____________________________________
Name:
Title:
By:Β
____________________________________
Name:
Title:
ACKNOWLEDGED
BY:
AMERICAN
HOME MORTGAGE CORP.
By:Β
____________________________________
Name:
Title:
Β
Β
Β
|
STATE
OF
|
)
|
| Β |
)
ss.:
|
|
COUNTY
OF
|
)
|
Β
On
the
___ day of [_________], 200[__], before me, a notary public in and for said
State, personally appeared _____________________ known to me to be a
_____________________ of Deutsche Mortgage 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.
Β
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Β
Β
| Β | Β |
| Β |
Notary
Public
|
Β
[Notarial
Seal]
Β
|
STATE
OF
|
)
|
| Β |
)
ss.:
|
|
COUNTY
OF
|
)
|
Β
On
the
___ day of [_________], 200[__], before me, a notary public in and for said
State, personally appeared _____________________ known to me to be a
_____________________ of Deutsche Mortgage 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.
Β
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Β
Β
| Β | Β |
| Β |
Notary
Public
|
Β
[Notarial
Seal]
Β
Β
|
STATE
OF
|
)
|
| Β |
)
ss.:
|
|
COUNTY
OF
|
)
|
Β
On
the __
day of [_________], 200[__], before me, a notary public in and for said State,
personally appeared _________________________ known to me to be a
___________________ of [Name of Master Servicer], one of the national banking
associations that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
Β
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Β
Β
| Β | Β |
| Β |
Notary
Public
|
Β
[Notarial
Seal]
Β
|
STATE
OF
|
)
|
| Β |
)
ss.:
|
|
COUNTY
OF
|
)
|
Β
On
the
___ day of [_________], 200[__], before me, a notary public in and for said
State, personally appeared _______________ known to me to be a _______________
of [Name of Trustee], one of the national banking associations that executed
the
within instrument, and also known to me to be the person who executed it on
behalf of said national banking association, and acknowledged to me that such
national banking association executed the within instrument.
Β
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Β
Β
| Β | Β |
| Β |
Notary
Public
|
Β
[Notarial
Seal]
Β
EXHIBIT
A-1
Β
FORM
OF
CLASS I-A-[1][5] CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
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.
Β
Β
Β
|
DMSI
Series 200[__]-[__], Class I-A-[1][5]
|
Β |
Aggregate
Certificate Principal Balance of the Class I-A-[1][5] Certificates
as of
the Issue Date: $___________
|
| Β | Β | Β |
|
Pass-Through
Rate: Floating
|
Β |
Denomination:
$__________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__]
|
Β |
Master
Servicer: Xxxxx Fargo Bank, N.A.
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__],200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
________________
|
| Β | Β | Β |
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
Β
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
I-A-[1][5] Certificates with respect to a trust fund generally consisting of
a
pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). This Certificate is primarily
backed by the Group I Loans sold by DB Structured Products, Inc. to the
Depositor. [Name of Master Servicer] will act as master servicer of the Mortgage
Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor, [Name of Master Servicer], as Master
Servicer and securities administrator (the βSecurities Administratorβ) and [Name
of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-1-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 Business Day prior to the related Distribution Date (the βRecord
Dateβ), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of
Class I-A-[1][5] Certificates on such Distribution Date pursuant to the
Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class I-A-[1][5] Certificates
the aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class I-A-[1][5] Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the 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 as provided in the
Agreement.
Β
The
Pass-Through Rate with respect to the first Distribution Date is equal to
[_____]% per annum and with respect to any Distribution Date thereafter shall
be
a rate per annum equal to the lesser of (a) One-Month LIBOR plus [_____]% and
(b) [_____]%.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
A-1-3
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
A-1-4
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-1-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER].
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class I-A-[1][5] Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β Β |
| Β Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
Β
EXHIBIT
A-2
Β
FORM
OF
CLASS I-A-2 CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class I-A-2
|
Β |
Initial
Notional Amount of the Class I-A-2 Certificates as of the Issue
Date:
$___________
|
| Β | Β | Β |
|
Pass-Through
Rate: Floating
|
Β |
Denomination:
$__________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__] |
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
________________
|
| Β | Β | Β |
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
I-A-2 Certificates with respect to a trust fund generally consisting of a pool
of conventional one- to four-family fixed-rate mortgage loans (the βMortgage
Loansβ) secured by one- to four- family residences, units in planned unit
developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). This Certificate is primarily
backed by the Group I Loans sold by DB Structured Products, Inc. to the
Depositor. [Name of Master Servicer] will act as master servicer of the Mortgage
Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor, [Name of Master Servicer], as Master
Servicer and securities administrator (the βSecurities Administratorβ) and [Name
of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-2-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 Business Day prior to the related Distribution Date (the βRecord
Dateβ), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of
Class I-A-2 Certificates on such Distribution Date pursuant to the
Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class I-A-2 Certificates the
aggregate initial Notional Amount of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Notional Amount of the
Class I-A-2 Certificates, or otherwise by check mailed by first class mail
to
the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the 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 as provided in the
Agreement.
Β
The
Pass-Through Rate with respect to the first Distribution Date is equal to [___]%
per annum and with respect to any Distribution Date thereafter shall be a per
annum rate equal to the lesser of (a) the excess, if any, of [___]% over the
Class I-A-1 Interest Rate for the related Distribution Date and (b) [___]%,
but
will not be less than zero on any Distribution Date.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the initial Notional Amount of the
Class
of Certificates specified on the face hereof. The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
A-2-3
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
A-2-4
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-2-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class I-A-2 Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β Β | Β |
| Β |
.
|
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-3
Β
FORM
OF
CLASS I-A-[3][4][7][8] CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class I-A-[3][4][7][8]
|
Β |
Aggregate
Certificate Principal Balance of the Class I-A-[3][4][7][8] Certificates
as of the Issue Date: $___________
|
| Β | Β | Β |
|
Pass-Through
Rate: Fixed
|
Β |
Denomination:
$__________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__] |
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
________________
|
| Β | Β | Β |
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
Β
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
I-A-[3][4][7][8] Certificates with respect to a trust fund generally consisting
of a pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). This Certificate is primarily
backed by the Group I Loans sold by DB Structured Products, Inc. to the
Depositor. [Name of Master Servicer] will act as master servicer of the Mortgage
Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor, [Name of Master Servicer], as Master
Servicer and securities administrator (the βSecurities Administratorβ) and [Name
of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-3-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 month immediately preceding the month
in which such Distribution Date occurs (the βRecord Dateβ), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the
amount required to be distributed to the Holders of Class I-A-[3][4][7][8]
Certificates on such Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class I-A-[3][4][7][8]
Certificates the aggregate initial Certificate Principal Balance of which is
in
excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate
initial Certificate Principal Balance of the Class I-A-[3][4][7][8]
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the 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 as provided in the Agreement.
Β
The
Pass-Through Rate with respect to any Distribution Date shall be equal to 5.500%
per annum.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
A-3-3
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
A-3-4
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-3-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class I-A-[3][4][7][8] Certificates referred to in the
within-mentioned Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-4
Β
FORM
OF
CLASS I-A-6 CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class I-A-6
|
Β |
Aggregate
Certificate Principal Balance of the Class I-A-6 Certificates as
of the
Issue Date: $___________
|
| Β | Β | Β |
|
Pass-Through
Rate: Floating
|
Β |
Denomination:
$__________
|
| Β | Β | Β |
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__] |
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
________________
|
| Β | Β | Β |
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
Β
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
I-A-6 Certificates with respect to a trust fund generally consisting of a pool
of conventional one- to four-family fixed-rate mortgage loans (the βMortgage
Loansβ) secured by one- to four- family residences, units in planned unit
developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). This Certificate is primarily
backed by the Group I Loans sold by DB Structured Products, Inc. to the
Depositor. [Name of Master Servicer] will act as master servicer of the Mortgage
Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor, [Name of Master Servicer], as Master
Servicer and securities administrator (the βSecurities Administratorβ) and [Name
of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-4-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 Business Day prior to the related Distribution Date (the βRecord
Dateβ), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of
Class I-A-6 Certificates on such Distribution Date pursuant to the
Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class I-A-6 Certificates the
aggregate initial Certificate Principal Balance of which is in excess of the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class I-A-6 Certificates, or otherwise by check mailed
by first class mail to the address of the Person entitled thereto, as such
name
and address shall appear on the Certificate Register. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by
the
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 as provided in the
Agreement.
Β
The
Pass-Through Rate with respect to the first Distribution Date is equal to [___]%
per annum and with respect to any Distribution Date thereafter shall be a rate
per annum equal to the excess of (i) [___]% over (ii) the product of (a)
One-Month LIBOR and (b) [___], but will not be less than zero for any
Distribution Date.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
A-4-3
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
A-4-4
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-4-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class I-A-6 Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-5
Β
FORM
OF
CLASS II-A-[1][2][3][4] CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class II-A-[1][2][3][4]
|
Β |
Aggregate
Certificate Principal Balance of the Class II-A-[1][2][3][4] Certificates
as of the Issue Date: $___________
|
| Β | Β | Β |
|
Pass-Through
Rate: Fixed
|
Β |
Denomination:
$__________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__]
|
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
________________
|
| Β | Β | Β |
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
Β
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
II-A-[1][2][3][4] Certificates with respect to a trust fund generally consisting
of a pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). This Certificate is primarily
backed by the Group II Loans sold by DB Structured Products, Inc. to the
Depositor. [Name of Master Servicer] will act as master servicer of the Mortgage
Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor, [Name of Master Servicer], as Master
Servicer and securities administrator (the βSecurities Administratorβ) and [Name
of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-5-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 month immediately preceding the month
in which such Distribution Date occurs (the βRecord Dateβ), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the
amount required to be distributed to the Holders of Class II-A-[1][2][3][4]
Certificates on such Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class II-A-[1][2][3][4]
Certificates the aggregate initial Certificate Principal Balance of which is
in
excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate
initial Certificate Principal Balance of the Class II-A-[1][2][3][4]
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the 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 as provided in the Agreement.
Β
The
Pass-Through Rate with respect to any Distribution Date shall be equal to 5.500%
per annum.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
A-5-3
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
A-5-4
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-5-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
Β
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class II-A-[1][2][3][4] Certificates referred to in the
within-mentioned Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
Β
Β
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-6
Β
FORM
OF
CLASS [I][II]-A-IO CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class [I][II]-A-IO
|
Β |
Initial
Notional Amount of the Class [I][II]-A-IO Certificates as of the
Issue
Date: $______________
|
| Β | Β | Β |
|
Pass-Through
Rate: Variable
|
Β |
Denomination:
$__________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__]
|
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
________________
|
| Β | Β | Β |
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
[I][II]-A-IO Certificates with respect to a trust fund generally consisting
of a
pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). This Certificate is primarily
backed by the Group [I][II] Loans sold by DB Structured Products, Inc. to the
Depositor. [Name of Master Servicer] will act as master servicer of the Mortgage
Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor, [Name of Master Servicer], as Master
Servicer and securities administrator (the βSecurities Administratorβ) and [Name
of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-6-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 month immediately preceding the month
in which such Distribution Date occurs (the βRecord Dateβ), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the
amount required to be distributed to the Holders of Class [I][II]-A-IO
Certificates on such Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class [I][II]-A-IO Certificates
the aggregate initial Notional Amount of which is in excess of the lesser of
(i)
$5,000,000 or (ii) two-thirds of the aggregate initial Notional Amount of the
Class [I][II]-A-IO Certificates, or otherwise by check mailed by first class
mail to the address of the Person entitled thereto, as such name and address
shall appear on the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the 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 as provided in the
Agreement.
Β
The
Pass-Through Rate with respect to the first Distribution Date is equal to
[____]% per annum and with respect to any Distribution Date thereafter shall
be
a per annum rate equal to the lesser of (i) the weighted average of the Net
Mortgage Rates of the Group [I][II] Non-Discount Loans over (ii)
[_____]%.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the initial Notional Amount of the
Class
of Certificates specified on the face hereof. The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
A-6-3
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
A-6-4
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-6-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class [I][II]-A-IO Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-7
Β
FORM
OF
CLASS [I][II]-A-PO CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class [I][II]-A-PO
|
Β |
Aggregate
Certificate Principal Balance of the Class [I][II]-A-PO Certificates
as of
the Issue Date: $_______________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__]
|
Β |
Denomination:
$__________
|
| Β | Β | Β |
| Β | Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:________________
|
| Β | Β | Β |
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
Β
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
[I][II]-A-PO Certificates with respect to a trust fund generally consisting
of a
pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). This Certificate is primarily
backed by the Group [I][II] Discount Loans sold by DB Structured Products,
Inc.
to the Depositor. [Name of Master Servicer] will act as master servicer of
the
Mortgage Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor, [Name of Master
Servicer], as Master Servicer and securities administrator (the βSecurities
Administratorβ) and [Name of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-7-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 βRecord Dateβ), in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount required
to
be distributed to the Holders of Class [I][II]-A-PO Certificates on such
Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class [I][II]-A-PO Certificates
the aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class [I][II]-A-PO Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the 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 as provided in the
Agreement.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by aggregate Certificate Principal Balance
of the Class of Certificates specified on the face hereof. The Certificates,
in
the aggregate, evidence the entire beneficial ownership interest in the Trust
Fund formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
A-7-3
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
A-7-4
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
Β
A-7-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class [I][II]-A-PO Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to _____% evidenced by the within Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
Β
Β
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-8
Β
FORM
OF
CLASS M CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE AGREEMENT REFERRED TO HEREIN.
Β
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS
SET
FORTH IN SECTION 5.2(c) OF THE AGREEMENT REFERRED TO
HEREIN.
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class M
|
Β |
Aggregate
Certificate Principal Balance of the Class M Certificates as of
the Issue
Date: $______________
|
| Β | Β | Β |
|
Pass-Through
Rate: Fixed
|
Β |
Denomination:
$______________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__]
|
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
___
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
_________________
|
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
M
Certificates with respect to a trust fund generally consisting of a pool of
conventional one- to four-family fixed-rate mortgage loans (the βMortgage
Loansβ) secured by one- to four- family residences, units in planned unit
developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). The Mortgage Loans were sold by DB
Structured Products, Inc. to the Depositor. [Name of Master Servicer] will
act
as master servicer of the Mortgage Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor,
[Name of Master Servicer], as Master Servicer and securities administrator
(the
βSecurities Administratorβ) and [Name of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-8-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 month immediately preceding the month
in which such Distribution Date occurs (the βRecord Dateβ), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the
amount required to be distributed to the Holders of Class M Certificates on
such
Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class M Certificates the
aggregate initial Certificate Principal Balance of which is in excess of the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class M Certificates, or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
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 as provided in the
Agreement.
Β
The
Pass-Through Rate with respect to any Distribution Date shall be equal to 5.500%
per annum.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interests of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
A-8-3
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
Any
transferee of this Certificate shall be deemed to make the representations
set
forth in Section 5.2(c) of the Agreement.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
A-8-4
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator by manual signature, this Certificate shall not be entitled to
any
benefit under the Agreement or be valid for any purpose.
Β
A-8-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class M Certificates referred to in the within-mentioned
Agreement.
Β
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
Β (Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to _____% evidenced by the within Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
Β
Β
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-9
Β
FORM
OF
CLASS B-[1][2] CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
[AND]
THE CLASS M CERTIFICATES [,/AND] [THE CLASS B-1 CERTIFICATES], TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Β
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS
SET
FORTH IN SECTION 5.2(c) OF THE AGREEMENT REFERRED TO
HEREIN.
Β
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.
Β
|
DMSI
Series 200[__]-[__], Class B-[1][2]
|
Β |
Aggregate
Certificate Principal Balance of the Class B-[1][2] Certificates
as of the
Issue Date: $____________
|
| Β | Β | Β |
|
Pass-Through
Rate: Fixed
|
Β |
Denomination:
$____________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__] |
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
_________________
|
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
B-[1][2] Certificates with respect to a trust fund generally consisting of
a
pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
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 certain assets of the Trust Fund
generally consisting of the Mortgage Loans and related assets sold by Deutsche
Mortgage Securities, Inc. (the βDepositorβ). The Mortgage Loans were sold by DB
Structured Products, Inc. to the Depositor. [Name of Master Servicer] will
act
as master servicer of the Mortgage Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor,
[Name of Master Servicer], as Master Servicer and securities administrator
(the
βSecurities Administratorβ) and [Name of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-9-2
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th day of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following such 25th day (a βDistribution Dateβ), 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 month immediately preceding the month in which such Distribution Date occurs
(the βRecord Dateβ), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of Class B-[1][2] Certificates on such Distribution Date pursuant
to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class B-[1][2] Certificates
the
aggregate initial Certificate Principal Balance of which is in excess of the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class B-[1][2] Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the 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 as provided in the
Agreement.
Β
The
Pass-Through Rate with respect to any Distribution Date shall be equal to 5.500%
per annum.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interest of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
A-9-3
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
Any
transferee of this Certificate shall be deemed to make the representations
set
forth in Section 5.2(c) of the Agreement.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
A-9-4
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-9-5
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class B-[1][2] Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
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.
Β
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:
_____________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
Β
Β
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-10
Β
FORM
OF
CLASS B-[3][4][5] CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE
CLASS M CERTIFICATES, THE CLASS B-1 CERTIFICATES [,/AND] THE CLASS B-2
CERTIFICATES [,/AND] [THE CLASS B-3 CERTIFICATES] [AND] [THE CLASS B-4
CERTIFICATES], TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
Β
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.
Β
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE βSECURITIES ACTβ), 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 (1) OUTSIDE OF THE UNITED
STATES WITHIN THE MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT (βREGULATION Sβ), OR (2) WITHIN THE UNITED STATES TO (A)
βQUALIFIED INSTITUTIONAL BUYERSβ WITHIN THE MEANING OF AND IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) OR (B) TO INSTITUTIONAL
INVESTORS THAT ARE βACCREDITED INVESTORSβ WITHIN THE MEANING OF RULE 501(A)(1),
(2), (3) OR (7) OF βREGULATION Dβ UNDER THE SECURITIES
ACT.
Β
Β
[THIS
CERTIFICATE IS A REGULATION S TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF
REGULATION S UNDER THE SECURITIES ACT. PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF (I) THE COMMENCEMENT OF THE OFFERING OF THE OFFERED CERTIFICATES
AND (II) THE CLOSING DATE, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED
OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.]
Β
[NO
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREIN UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE AGREEMENT (AS
DEFINED HEREIN).]
Β
[THE
HOLDER OF THIS REGULATION S PERMANENT GLOBAL CERTIFICATE BY ITS ACCEPTANCE
HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE WITHIN
THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) PRIOR TO THE DATE WHICH IS THE LATER OF (I) 40 DAYS AFTER THE
LATER OF THE CLOSING DATE AND (II) THE DATE ON WHICH THE REQUISITE
CERTIFICATIONS ARE DUE TO AND PROVIDED TO THE TRUSTEE AND SECURITIES
ADMINISTRATOR PURSUANT TO THE AGREEMENT (AS DEFINED BELOW), EXCEPT PURSUANT
TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.]
Β
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 5.2(c) OF THE
AGREEMENT.
Β
A-10-2
|
DMSI
Series 200[__]-[__], Class B-[3][4][5]
|
Β |
Aggregate
Certificate Principal Balance of the Class B-[3][4][5] Certificates
as of
the Issue Date: $____________
|
| Β | Β | Β |
|
Pass-Through
Rate: Fixed
|
Β |
Denomination:
$___________
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__]
|
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
___
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
_____________
|
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
B-[3][4][5] Certificates with respect to a trust fund generally consisting
of a
pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
This
certifies that [Deutsche Bank Securities Inc.] [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
certain assets of the Trust Fund generally consisting of the Mortgage Loans
and
related assets sold by Deutsche Mortgage Securities, Inc. (the βDepositorβ). The
Mortgage Loans were sold by DB Structured Products, Inc. to the Depositor.
[Name
of Master Servicer] will act as master servicer of the Mortgage Loans (the
βMaster Servicerβ, 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
βAgreementβ), among the Depositor, [Name of Master Servicer], as Master Servicer
and securities administrator (the βSecurities Administratorβ) and [Name of
Trustee] as trustee (the βTrusteeβ), 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.
Β
A-10-3
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 month immediately preceding the month
in which such Distribution Date occurs (the βRecord Dateβ), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the
amount required to be distributed to the Holders of Class B-[3][4][5]
Certificates on such Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class B-[3][4][5] Certificates
the aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class B-[3][4][5] Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the 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 as provided in the
Agreement.
Β
The
Pass-Through Rate with respect to any Distribution Date shall be equal to 5.500%
per annum.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interest of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
A-10-4
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities 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 or Regulation S under the Securities Act, written certifications
from the Holder of the Certificate desiring to effect the transfer, and from
such Holderβs prospective transferee, substantially in the forms attached to the
Agreement as Exhibits B-1 and B-3, respectively, (ii) if such transfer is
purportedly being made in reliance upon Rule 501(a) under the Securities Act,
written certifications from the Holder of the Certificate desiring to effect
the
transfer and from such Holderβs prospective transferee, substantially in the
form attached to the Agreement as Exhibit B-2 and (iii) 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, the Master Servicer
or the Securities Administrator 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 Holderβs prospective
transferee upon which such Opinion of Counsel is based. None of the Depositor,
the Trustee or the Securities Administrator is obligated to register or qualify
the Class of Certificates specified on the face hereof under the Securities
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 Depositor, the Master Servicer
and the Securities Administrator 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.
Β
A-10-5
Β
No
transfer of this Certificate shall be made to any person unless the Transferee
provides a certification pursuant to Section 5.2(c) of the Agreement.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-10-6
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class B-[3][4][5] Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
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.
Β
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:
_____________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-11
Β
FORM
OF
CLASS R CERTIFICATE
Β
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE SOLE
βRESIDUAL INTERESTβ IN EACH βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE βCODEβ).
Β
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.
Β
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.2(c) OF THE AGREEMENT REFERRED
TO
HEREIN.
Β
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (βERISAβ), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN THE AGREEMENT.
Β
Β
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE SECURITIES
ADMINISTRATOR THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY
POSSESSION THEREOF, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY
OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED
IN SECTION 521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER
1 OF
THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION
511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL
HEREINAFTER BE REFERRED TO AS A βDISQUALIFIED ORGANIZATIONβ) OR (4) AN AGENT OF
A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE
THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL
NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER
OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO
THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.2(c) OF THE
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION
IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS
CERTIFICATE.
Β
A-11-2
|
DMSI
Series 200[__]-[__], Class R
|
Β |
Aggregate
Certificate Principal Balance of the Class R Certificates as of
the Issue
Date: $100
|
| Β | Β | Β |
| Β | Β |
Denomination:
$________
|
| Β | Β | Β |
|
Pass-Through
Rate: Fixed
|
Β |
Aggregate
Percentage Interest of the Class R Certificates as of the Issue
Date:
100.00%
|
| Β | Β | Β |
|
Date
of Pooling and Servicing Agreement and Cut-Off Date: [____________],
200[__]
|
Β |
Master
Servicer: [____________]
|
| Β | Β | Β |
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Trustee:
[____________]
|
| Β | Β | Β |
|
No.
__
|
Β |
Issue
Date: [____________], 200[__]
|
| Β | Β | Β |
| Β | Β |
CUSIP:
_____________
|
Β
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
R
Certificates with respect to a trust fund generally consisting of a pool of
conventional one- to four-family fixed-rate mortgage loans (the βMortgage
Loansβ) secured by one- to four- family residences, units in planned unit
developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
This
certifies that [Deutsche Bank Securities Inc.] 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 certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold
by
Deutsche Mortgage Securities, Inc. (the βDepositorβ). The Mortgage Loans were
sold by DB Structured Products, Inc. to the Depositor. [Name of Master Servicer]
will act as master servicer of the Mortgage Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor,
[Name of Master Servicer], as Master Servicer and securities administrator
(the
βSecurities Administratorβ) and [Name of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-11-3
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 month immediately preceding the month
in which such Distribution Date occurs (the βRecord Dateβ), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the
amount required to be distributed to the Holders of Class R Certificates on
such
Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class R Certificates, or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the 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 as provided in the Agreement.
Β
The
Pass-Through Rate with respect to any Distribution Date shall be equal to 5.500%
per annum.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
A-11-4
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Securities Administrator with the consent of
the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3%
Percentage Interest of all Certificates. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Β
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.
Β
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using βPlan Assetsβ to acquire this Certificate shall be made except
in accordance with Section 5.2(c) of the Agreement.
Β
A-11-5
Β
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Securities Administrator (i) an
affidavit to the effect that such transferee is any Person other than a
Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as a
representing the beneficial ownership of the residual interests in each REMIC,
(B) it will include in its income a pro
rata
share of
the net income of the Trust Fund and that such income may be an βexcess
inclusion,β as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall not
be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
Β
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 5.2(c) of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause any portion of the
Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon any
REMIC.
Β
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 or the Securities Administrator nor any such agent shall
be affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
A-11-6
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
Β
A-11-7
Β
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class R Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Signatory
|
Β
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to _____% evidenced by the within Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
Β
Β
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
A-12
FORM
OF
CLASS P-[1][2] CERTIFICATE
Β
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A βREGULAR INTERESTβ
IN A βREAL ESTATE MORTGAGE INVESTMENT CONDUIT,β AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE βCODEβ).
Β
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.
Β
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE βSECURITIES ACTβ), 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 (1) OUTSIDE OF THE UNITED
STATES WITHIN THE MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT (βREGULATION Sβ), OR (2) WITHIN THE UNITED STATES TO (A)
βQUALIFIED INSTITUTIONAL BUYERSβ WITHIN THE MEANING OF AND IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) OR (B) TO INSTITUTIONAL
INVESTORS THAT ARE βACCREDITED INVESTORSβ WITHIN THE MEANING OF RULE 501(A)(1),
(2), (3) OR (7) OF βREGULATION Dβ UNDER THE SECURITIES
ACT.
Β
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.2(c) OF THE AGREEMENT REFERRED
TO
HEREIN.
Β
Β
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (βERISAβ), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN THE AGREEMENT.
Β
A-12-2
|
DMSI
Series 200[__]-[__], Class P-[1][2]
|
Β |
Aggregate
Certificate Principal Balance of the Class P-[1][2] Certificates
as of the
Issue Date: $100.00
|
|
Cut-Off
Date and date of Pooling and Servicing Agreement: [____________],
200[__]
|
Β |
Denomination:
$100.00
|
|
First
Distribution Date: [____________][__], 200[__]
|
Β |
Master
Servicer: [____________]
|
|
No.
__
|
Β |
Trustee:
[____________]
|
| Β | Β |
Issue
Date: [____________], 200[__]
|
| Β | Β |
CUSIP:
_____________
|
DEUTSCHE
MORTGAGE SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 200[__]-[__]
Β
MORTGAGE
PASS-THROUGH CERTIFICATE
Β
evidencing
a fractional undivided interest in the distributions allocable to the Class
P-[1][2] Certificates with respect to a trust fund generally consisting of
a
pool of conventional one- to four-family fixed-rate mortgage loans (the
βMortgage Loansβ) secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the βTrust Fundβ) sold by
DEUTSCHE MORTGAGE SECURITIES, INC.
Β
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE MORTGAGE
SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE
TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
Β
This
certifies that [Deutsche Bank Securities Inc.] 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 certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold
by
Deutsche Mortgage Securities, Inc. (the βDepositorβ). The Mortgage Loans were
sold by DB Structured Products, Inc. to the Depositor. [Name of Master Servicer]
will act as master servicer of the Mortgage Loans (the βMaster Servicerβ, 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 βAgreementβ), among the Depositor,
[Name of Master Servicer], as Master Servicer and securities administrator
(the
βSecurities Administratorβ) and [Name of Trustee] as trustee (the βTrusteeβ), 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.
Β
A-12-3
Β
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
βDistribution Dateβ), 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 month immediately preceding the month
in which such Distribution Date occurs (the βRecord Dateβ), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the
amount required to be distributed to the Holders of Class P-[1][2] Certificates
on such Distribution Date pursuant to the Agreement.
Β
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Securities Administrator in writing
at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class P-[1][2] Certificates
the
aggregate initial Certificate Principal Balance of which is in excess of the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class P-[1][2] Certificates, or otherwise by check
mailed by first class mail to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the 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 as provided in the
Agreement.
Β
This
Certificate is one of a duly authorized issue of Certificates designated as
a
Mortgage Pass-Through Certificate of the Series specified on the face hereof
(herein called the βCertificatesβ) and represents a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof. The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
Β
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and certain other assets of the Trust
Fund, all as more specifically set forth herein and in the Agreement. As
provided in the Agreement, withdrawals from the Protected Accounts and the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage Loans.
Β
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, and the rights
of
the Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer, the Trustee and the Securities Administrator with the consent
of the Holders of Certificates entitled to at least 66-2/3% of the Percentage
Interest of all Certificates. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any of
the
Certificates.
Β
A-12-4
Β
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holderβs attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Β
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Β
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities 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 or Regulation S under the Securities Act, written certifications
from the Holder of the Certificate desiring to effect the transfer, and from
such Holderβs prospective transferee, substantially in the forms attached to the
Agreement as Exhibits B-1 and B-3, respectively, (ii) if such transfer is
purportedly being made in reliance upon Rule 501(a) under the Securities Act,
written certifications from the Holder of the Certificate desiring to effect
the
transfer and from such Holderβs prospective transferee, substantially in the
form attached to the Agreement as Exhibit B-2 and (iii) 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, the Master Servicer
or the Securities Administrator 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 Holderβs prospective
transferee upon which such Opinion of Counsel is based. None of the Depositor,
the Trustee or the Securities Administrator is obligated to register or qualify
the Class of Certificates specified on the face hereof under the Securities
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 Depositor, the Master Servicer
and the Securities Administrator 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.
Β
A-12-5
Β
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using βPlan Assetsβ to acquire this Certificate shall be made except
in accordance with Section 5.2(c) of the Agreement.
Β
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
any agent of the Depositor, the Master Servicer, the Trustee or the Securities
Administrator 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 nor any such agent shall
be
affected by notice to the contrary.
Β
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement of all the Mortgage Loans and
all
property acquired in respect of such Mortgage Loans. The Agreement permits,
but
does not require, the party designated in the Agreement to purchase all the
Mortgage Loans and all property acquired in respect of any Mortgage Loan at
a
price determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is
subject to the aggregate Scheduled Principal Balance of the Mortgage Loans
and
the fair market value of each REO Property remaining in the Trust Fund at the
time of purchase being less than or equal to 10% of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the Cut-Off Date plus the Original
Pre-Funded Amount.
Β
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Β
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
Β
A-12-6
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Β
Dated:
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Authorized
Officer
|
CERTIFICATE
OF AUTHENTICATION
Β
This
is
one of the Class P-[1][2] Certificates referred to in the within-mentioned
Agreement.
Β
|
[NAME
OF MASTER SERVICER]
as
Securities Administrator
|
|
| Β | |
|
By:
|
Β |
| Β |
Authorized
Officer
|
ABBREVIATIONS
Β
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
Β
|
TEN
COMΒ -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Β Β Β Β Β CustodianΒ Β Β Β Β Β
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENTΒ -
|
as
tenants by the entireties
|
Β |
________________
(State)
|
|
JT
TENΒ -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
Β | Β |
| Β | Β | Β | Β |
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
Β
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| Β |
| Β |
| Β |
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
Β
a
Percentage Interest equal to ____% evidenced by the within Asset Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
Β
I
(we)
further direct the Securities Administrator to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
| Β | Β |
| Β |
.
|
Β
|
Dated:
|
Β |
| Β |
Signature
by or on behalf of assignor
|
| Β | Β |
| Β | Β |
| Β |
Signature
Guaranteed
|
Β
Β
DISTRIBUTION
INSTRUCTIONS
Β
The
assignee should include the following for purposes of distribution:
Β
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
Β | ||||||
| Β | |||||||
|
for
the account of
|
Β | ||||||
|
account
number
|
Β |
or,
if mailed by check, to
|
|||||
| Β | |||||||
|
Applicable
statements should be mailed to
|
Β | ||||||
| Β | |||||||
| Β | |||||||
|
This
information is provided by
|
Β | ||||||
|
assignee
named above, or
|
Β | ||||||
|
its
agent.
|
Β | ||||||
EXHIBIT
B-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
Β
[Date]
Β
[Name
of
Master Servicer]
[Address]
Attention:
Corporate Trust DMSI-200[__]-[__]
Β
|
Re:
|
Deutsche
Mortgage Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__]
Mortgage Pass-Through Certificates Class B-3, Class B-4, Class B-5,
Class
P-1 and Class P-2 Certificates
|
Β
Ladies
and Gentlemen:
Β
In
connection with the transfer by ______________________ (the βTransferorβ) to
___________________ (the βTransfereeβ) of the captioned mortgage pass-through
certificates (the βCertificatesβ), the Transferor hereby certifies as
follows:
Β
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
(e)
has taken any other action, that (in the case of each of subclauses (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933, as amended (the β1933 Actβ), or would render the
disposition of any Certificate a violation of Section 5 of the 1933 Act or
any
state securities law or would require registration or qualification pursuant
thereto. The Transferor will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Transferor will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of that
certain Pooling and Servicing Agreement, dated as of [____________], 200[__],
among Deutsche Mortgage Securities, Inc. as Depositor, [Name of Master Servicer]
as Master Servicer and Securities Administrator and [Name of Trustee] as trustee
(the βPooling and Servicing Agreementβ), pursuant to which Pooling and Servicing
Agreement the Certificates were issued.
Β
B-1-1
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement.
Β
|
Very
truly yours,
Β
|
|
|
[Transferor]
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
Β
B-1-2
FORM
OF
TRANSFEREE REPRESENTATION LETTER
Β
[Date]
Β
[Name
of
Master Servicer]
[Address]
Attention:
Corporate Trust DMSI 200[__]-[__]
Β
|
Re:
|
Deutsche
Mortgage Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__]
Mortgage Pass-Through Certificates Class B-3, Class B-4, Class B-5,
Class
P-1 and Class P-2 Certificates
|
Β
Ladies
and Gentlemen:
Β
In
connection with the purchase from ______________________________ (the
βTransferorβ) on the date hereof of the captioned trust certificates (the
βCertificatesβ), (the βTransfereeβ) hereby certifies as follows:
Β
1.Β The
Transferee is a βqualified institutional buyerβ as that term is defined in Rule
144A (βRule 144Aβ) under the Securities Act of 1933, as amended (the β1933 Actβ)
and has completed either of the forms of certification to that effect attached
hereto as Annex 1 or Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Certificates for its own account or for the account of a qualified institutional
buyer, and understands that such Certificate may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of
a
qualified institutional buyer to whom notice is given that the resale, pledge
or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
Β
2.Β The
Transferee has been furnished with all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism associated with
the
Certificates, that it has requested.
Β
3.Β The
Transferee: (a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act
of 1974, as amended (βERISA), or Section 4975 of the Internal Revenue Code of
1986, as amended (the βCodeβ) (each, a βPlanβ), 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 βplan
assetsβ of any Plan within the meaning of the Department of Labor (βDOLβ)
regulation at 29 C.F.R. Β§2510.3-101 or (b) [[for Class P-[1][2]] has provided
the Securities Administrator with an opinion of counsel on which the Trustee,
the Depositor, the Master Servicer and the Securities Administrator may rely,
acceptable to and in form and substance satisfactory to the Trustee to the
effect that the purchase of Certificates is permissible under applicable law,
will not constitute or result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Trust Fund, the
Trustee, the Depositor, the Master Servicer or the Securities Administrator
to
any obligation or liability (including obligations or liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in the Pooling and
Servicing Agreement.] [[for Class B-3, Class B-4, Class B-5] (i) is an insurance
company, (ii) the source of funds used to acquire or hold the certificate or
interest therein is an βinsurance company general account,β as such term is
defined in Prohibited Transaction Class Exemption (βPTCEβ) 95-60, and (iii) the
conditions in Sections I and III of PTCE 95-60 have been
satisfied.]
Β
B-1-3
Β
In
addition, the Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Trustee, the Securities Administrator and
the
Master Servicer that the Transferee will not transfer such Certificates to
any
Plan or person unless such Plan or person meets the requirements set forth
in
paragraph 3 above.
Β
All
capitalized terms used but not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement (the βPooling
and Servicing Agreementβ), dated as of [____________], 200[__], among Deutsche
Mortgage Securities, Inc. as Depositor, [Name of Master Servicer] as Master
Servicer and Securities Administrator and [Name of Trustee] as Trustee, pursuant
to which the Certificates were issued.
Β
|
[TRANSFEREE]
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
Β
Β
X-0-0
XXXXX
0 XX XXXXXXX X-0
Β
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
Β
[For
Transferees Other Than Registered Investment Companies]
Β
The
undersigned hereby certifies as follows to [name of Transferor] (the
βTransferorβ) and [Name of Securities Administrator], as Securities
Administrator, with respect to the mortgage backed pass-through certificates
(the βCertificatesβ) described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
Β
1.Β As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the entity purchasing the
Certificates (the βTransfereeβ).
Β
2.Β In
connection with purchases by the Transferee, the Transferee is a βqualified
institutional buyerβ as that term is defined in Rule 144A under the Securities
Act of 1933 (βRule 144Aβ) because (i) the Transferee owned and/or invested on a
discretionary basis $________________1 in securities (except for the
excluded securities referred to below) as of the end of the Transfereeβs most
recent fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Transferee satisfies the criteria in the category marked
below.
Β
| Β |
___
|
Corporation,
etc.
The Transferee is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or any organization described in Section 501(c)(3)
of
the Internal Revenue Code of 1986.
|
Β
| Β |
___
|
Bank.
The Transferee (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia,
the
business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official
or is a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a
copy of which is attached hereto.
|
Β
| Β |
___
|
Savings
and Loan.
The Transferee (a) is a savings and loan association, building and
loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a
copy of which is attached hereto.
|
______________
1Β Transferee
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Transferee is a dealer, and, in that case, Transferee must
own
and/or invest on a discretionary basis at least $10,000,000 in
securities.
B-1-5
Β
| Β |
___
|
Broker-dealer.
The Transferee is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
|
Β
| Β |
___
|
Insurance
Company.
The Transferee is an insurance company whose primary and predominant
business activity is the writing of insurance or the reinsuring of
risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State,
territory or the District of
Columbia.
|
Β
| Β |
___
|
State
or Local Plan.
The Transferee is a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality of the State
or
its political subdivisions, for the benefit of its
employees.
|
Β
| Β |
___
|
ERISA
Plan.
The Transferee is an employee benefit plan within the meaning of
Title I
of the Employee Retirement Income Security Act of
1974.
|
Β
| Β |
___
|
Investment
Advisor
The Transferee is an investment advisor registered under the Investment
Advisers Act of 1940.
|
Β
3.Β The
term
βsecuritiesβ
as used
herein does
not include
(i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee,
if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S.
or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v)Β loan participations, (vi) repurchase agreements, (vii)
securities owned but subject to a repurchase agreement and (viii) currency,
interest rate and commodity swaps.
Β
4.Β For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, the Transferee used the cost of
such
securities to the Transferee and did not include any of the securities referred
to in the preceding paragraph. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transfereeβs direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934.
Β
5.Β The
Transferee acknowledges that it is familiar with Rule 144A and understands
that
the Transferor and other parties related to the Certificates are relying and
will continue to rely on the statements made herein because one or more sales
to
the Transferee may be in reliance on Rule 144A.
Β
| Β |
___
|
___
|
Will
the Transferee be purchasing the Certificates
|
| Β |
Yes
|
No
|
only
for the Transfereeβs own account?
|
| Β | Β | Β | Β |
6.Β If
the
answer to the foregoing question is βnoβ, the Transferee agrees that, in
connection with any purchase of securities sold to the Transferee for the
account of a third party (including any separate account) in reliance on Rule
144A, the Transferee will only purchase for the account of a third party that
at
the time is a βqualified institutional buyerβ within the meaning of Rule 144A.
In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of βqualified institutional buyerβ set forth in Rule
144A.
Β
B-1-6
Β
7.Β The
Transferee will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice
is
given, the Transfereeβs purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above,
the
Transferee agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
Β
Dated:
|
Print
Name of Transferee
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β
|
|
Title:
|
Β |
X-0-0
XXXXX
0 XX XXXXXXX X-0
Β
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
Β
[For
Transferees That Are Registered Investment Companies]
Β
The
undersigned hereby certifies as follows to [name of Transferor] (the
βTransferorβ) and [Name of Securities Administrator], as Securities
Administrator, with respect to the mortgage backed pass-through certificates
(the βCertificatesβ) described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
Β
1.Β As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the entity purchasing the Certificates (the
βTransfereeβ) or, if the Transferee is a βqualified institutional buyerβ as that
term is defined in Rule 144A under the Securities Act of 1933 (βRule 144Aβ)
because the Transferee is part of a Family of Investment Companies (as defined
below), is such an officer of the investment adviser (the
βAdviserβ).
Β
2.Β In
connection with purchases by the Transferee, the Transferee is a βqualified
institutional buyerβ as defined in Rule 144A because (i) the Transferee is an
investment company registered under the Investment Company Act of 1940, and
(ii)
as marked below, the Transferee alone, or the Transfereeβs Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transfereeβs most recent
fiscal year. For purposes of determining the amount of securities owned by
the
Transferee or the Transfereeβs Family of Investment Companies, the cost of such
securities was used.
Β
| Β |
___
|
The
Transferee owned $________________________ in securities (other than
the
excluded securities referred to below) as of the end of the Transfereeβs
most recent fiscal year (such amount being calculated in accordance
with
Rule 144A).
|
Β
| Β |
___
|
The
Transferee is part of a Family of Investment Companies which owned
in the
aggregate $_______________ in securities (other than the excluded
securities referred to below) as of the end of the Transfereeβs most
recent fiscal year (such amount being calculated in accordance with
Rule
144A).
|
Β
3.Β The
term
βFamily
of Investment Companiesβ
as used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
Β
4.Β The
term
βsecuritiesβ
as used
herein does not include (i) securities of issuers that are affiliated with
the
Transferee or are part of the Transfereeβs Family of Investment Companies, (ii)
securities issued or guaranteed by the U.S. or any instrumentality thereof,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi)Β securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and commodity
swaps.
Β
B-1-8
Β
5.Β The
Transferee is familiar with Rule 144A and understands that the parties to which
this certification is being made are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee will be
in
reliance on Rule 144A. In addition, the Transferee will only purchase for the
Transfereeβs own account.
Β
6.Β The
undersigned will notify the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice, the
Transfereeβs purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such
purchase.
Β
Dated:
|
Print
Name of Transferee
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
| Β | Β |
|
IF
AN ADVISER:
Β
|
|
|
Print
Name of Transferee
|
|
B-1-9
FORM
OF
TRANSFEREE REPRESENTATION LETTER
Β
The
undersigned hereby certifies on behalf of the purchaser named below (the
βPurchaserβ) as follows:
Β
1.Β I
am an
executive officer of the Purchaser.
Β
2.Β The
Purchaser is a βqualified institutional buyerβ, as defined in Rule 144A, (βRule
144Aβ) under the Securities Act of 1933, as amended.
Β
3.Β As
of the
date specified below (which is not earlier than the last day of the Purchaserβs
most recent fiscal year), the amount of βsecuritiesβ, computed for purposes of
Rule 144A, owned and invested on a discretionary basis by the Purchaser was
in
excess of $100,000,000.
Β
|
Name
of Purchaser
|
Β | ||||
|
By:
(Signature)
|
Β | ||||
|
Name
of Signatory
|
Β | ||||
|
Title
|
Β | ||||
|
Date
of this certificate
|
Β | ||||
|
Date
of information provided in paragraph 3
|
Β | ||||
B-1-10
EXHIBIT
B-2
Β
FORM
OF
TRANSFEROR REPRESENTATION LETTER
Β
____________,
20__
Β
[Name
of
Master Servicer]
Β
[Address]
Β
Attention:
Corporate Trust DMSI 200[__]-[__]
Β
|
Re:
|
Deutsche
Mortgage Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__]
Mortgage Pass-Through Certificates Class B-3, Class B-4, Class B-5,
Class
P-1 and Class P-2 Certificates
|
Β
Ladies
and Gentlemen:
Β
In
connection with the transfer by ________________ (the βTransferorβ) to
__________________________ (the βTransfereeβ) of the captioned mortgage
pass-through certificates (the βCertificatesβ), the Transferor hereby certifies
as follows:
Β
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
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,
as amended (the βSecurities Actβ), that would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law, or that would require registration or qualification pursuant
thereto. The Transferor will not act, in any manner set forth in the foregoing
sentence with respect to any Certificate. The Transferor has not and will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of
[____________], 200[__], among Deutsche Mortgage Securities, Inc. as Depositor,
[Name of Master Servicer] as Master Servicer and Securities Administrator and
[Name of Trustee] as trustee (the βPooling and Servicing Agreementβ), pursuant
to which Pooling and Servicing Agreement the Certificates were
issued.
Β
B-2-1
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement.
Β
|
Very
truly yours,
Β
|
|
|
(Transferor)
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
Β
B-2-2
FORM
OF
TRANSFEREE LETTER
Β
_______________,
20__
Β
[Name
of
Master Servicer]
Β
[Address]
Β
Attention:
Corporate Trust DMSI 200[__]-[__]
Β
|
Re:
|
Deutsche
Mortgage Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__]
Mortgage Pass-Through Certificates Class B-3, Class B-4, Class B-5,
Class
P-1 and Class P-2 Certificates
|
Β
Ladies
and Gentlemen:
Β
In
connection with the transfer by ______________________ (the βTransferorβ) to
__________________________ (the βTransfereeβ) of the captioned mortgage
pass-through certificates (the βCertificatesβ), the Transferee hereby certifies
as follows:
Β
1.Β The
Transferee understands that (a) the Certificates have not been and will not
be
registered or qualified under the Securities Act of 1933, as amended (the
βSecurities Actβ) 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 Securities
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.
Β
2.Β The
Transferee 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 Securities Act or any applicable state
securities laws.
Β
3.Β The
Transferee 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 βaccredited investorβ within the meaning of Rule 501(a) promulgated pursuant
to the Securities Act.
Β
4.Β The
Transferee has been furnished with, and has had an opportunity to review (a)
a
copy of the Pooling and Servicing Agreement and (b) such other information
concerning the Certificates, the Mortgage Loans and the Depositor as has been
requested by the Transferee from the Depositor or the Transferor and is relevant
to the Transfereeβs decision to purchase the Certificates. The Transferee has
had any questions arising from such review answered by the Depositor or the
Transferor to the satisfaction of the Transferee.
Β
B-2-3
Β
5.Β The
Transferee 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 Securities Act,
that would render the disposition of any Certificate a violation of Section
5 of
the Securities Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Transferee will not sell
or
otherwise transfer any of the Certificates, except in compliance with the
provisions of the Pooling and Servicing Agreement.
Β
6.Β The
Transferee: (a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act
of 1974, as amended (βERISAβ), or Section 4975 of the Internal Revenue Code of
1986, as amended (the βCodeβ) (each, a βPlanβ), 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 βplan
assetsβ of any Plan within the meaning of the Department of Labor (βDOLβ)
regulation at 29 C.F.R. Β§12510.3-101 or (b) [[for Class P-[1][2]] has provided
the Securities Administrator with an opinion of counsel on which the Trustee,
the Depositor, the Master Servicer and the Securities Administrator may rely,
acceptable to and in form and substance satisfactory to the Trustee to the
effect that the purchase of Certificates is permissible under applicable law,
will not constitute or result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Trust Fund, the
Trustee, the Depositor, the Master Servicer or the Securities Administrator
to
any obligation or liability (including obligations or liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in the Pooling and
Servicing Agreement.] [[for Class B-3, Class B-4, Class B-5] (i) is an insurance
company, (ii) the source of funds used to acquire or hold the certificate or
interest therein is an βinsurance company general account,β as such term is
defined in Prohibited Transaction Class Exemption (βPTCEβ) 95-60, and (iii) the
conditions in Sections I and III of PTCE 95-60 have been
satisfied.]
Β
In
addition, the Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Trustee, the Securities Administrator and
the
Master Servicer that the Transferee will not transfer such Certificates to
any
Plan or person unless such Plan or person meets the requirements set forth
in
paragraph 6 above.
Β
All
capitalized terms used but not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement (the βPooling
and Servicing Agreementβ), dated as of [____________], 200[__], among Deutsche
Mortgage Securities, Inc. as Depositor, [Name of Master Servicer] as Master
Servicer and Securities Administrator and [Name of Trustee] as Trustee, pursuant
to which the Certificates were issued.
Β
B-2-4
Β
|
Very
truly yours,
Β
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
X-0-0
XXXXXXX
X-0
Β
FORM
OF
REGULATION S TRANSFER CERTIFICATE
Β
[Date]
Β
[Name
of
Master Servicer]
[Address]
Attention:
Corporate Trust DMSI 200[__]-[__]
Β
| Β Β Β Β Β Β Β Β |
Re:Β Β Β Β Β Β Β Β Β
|
DeutscheΒ
Mortgage
Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__] Mortgage
Pass-Through Certificates Class B-3, Class B-4, Class B-5 Class
P-1 and
Class P-2 CertificatesΒ
|
Β Β Β Β Β Β Β
Mortgage
Pass-Through Certificates Class B-3, Class B-4, Class B-5 Class
P-1
and Class P-2 CertificatesΒ
Β
Ladies
and Gentlemen:
Β
Reference
is hereby made to the Pooling and Servicing Agreement (the βAgreementβ), dated
as of [____________], 200[__], among Deutsche Mortgage Securities, Inc. (the
βDepositorβ), [Name of Master Servicer], as master and securities administrator
(the βMaster Servicerβ) and [Name of Trustee], as trustee (the βTrusteeβ).
Capitalized terms used herein but not defined herein shall have the meanings
assigned thereto in the Agreement.
Β
This
letter relates to U.S. $[__________] Certificate Principal Balance of Class
[B-[3][4][5]][P-[1][2]] Certificates (the βCertificatesβ) which are held in the
name of [name of transferor] (the βTransferorβ) to effect the transfer of the
Certificates to a person who wishes to take delivery thereof in the form of
an
equivalent beneficial interest [name of transferee] (the
βTransfereeβ).
Β
In
connection with such request, the Transferor hereby certifies that such transfer
has been effected in accordance with the transfer restrictions set forth in
the
Agreement and the private placement memorandum dated [__________], 200[__]
relating to the Certificates and that the following additional requirements
(if
applicable) were satisfied:
Β
(a)Β the
offer
of the Certificates was not made to a person in the United States;
Β
(b)Β at
the
time the buy order was originated, the Transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the Transferee was outside the United States;
Β
(c)Β no
directed selling efforts were made in contravention of the requirements of
Rule
903(b) or 904(b) of Regulation S, as applicable;
Β
(d)Β the
transfer or exchange is not part of a plan or scheme to evade the registration
requirements of the Securities Act of 1933, as amended (the βSecurities
Actβ);
Β
(e)Β the
Transferee is not a U.S. Person, as defined in Regulation S under the Securities
Act;
Β
B-3-1
Β
(f)Β the
transfer was made in accordance with the applicable provisions of Rule 903(b)(2)
or (3) or Rule 904(b)(1), as the case may be; and
Β
(g)Β the
Transferee understands that the Certificates have not been and will not be
registered under the Securities Act, that any offers, sales or deliveries of
the
Certificates purchased by the Transferee in the United States or to U.S. persons
prior to the date that is 40 days after the later of (i) the commencement of
the
offering of the Certificates and (ii) the Closing Date, may constitute a
violation of United States law, and that (x) distributions of principal and
interest and (y) the exchange of beneficial interests in a Temporary Regulation
S Global Certificate for beneficial interests in the related Permanent
Regulation S Global Certificate, in each case, will be made in respect of such
Certificates only following the delivery by the Holder of a certification of
non-U.S. beneficial ownership, at the times and in the manner set forth in
the
Agreement.
Β
B-3-2
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby.
Β
|
[Name
of Transferor]
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
Β
X-0-0
XXXXXXX
X-0
Β
FORM
OF
CLEARSTREAM CERTIFICATE
Β
[Date]
Β
[Name
of
Trustee]
[Address]
Attention:
Deutsche Mortgage Securities Trust 200[__]-[__]
Β
[Name
of
Master Servicer]
[Address]
Attention:Β Deutsche
Mortgage Securities, Inc., 200[__]-[__]
Β
|
Re:
|
Deutsche
Mortgage Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__]
Mortgage Pass-through Certificates, (the βTrustβ), Class [ B-3, B-4, B-5,
P-1, P-2] Certificates (the βCertificatesβ)
|
Β
Ladies
and Gentlemen:
Β
Reference
is hereby made to the Pooling and Servicing Agreement (the βAgreementβ), dated
as of [____________], 200[__], among Deutsche Mortgage Securities, Inc. (the
βDepositorβ), [Name of Master Servicer], as master servicer and securities
administrator (the βMaster Servicerβ) and [Name of Trustee], as trustee (the
βTrusteeβ). Capitalized terms used herein but not defined herein shall have the
meanings assigned thereto in the Agreement.
Β
This
is
to certify that, based solely on certificates we have received in writing,
by
tested telex or by electronic transmissions from member organizations appearing
in our records as persons being entitled to a portion of the Certificates set
forth below (our βMember Organizationsβ), substantially to the effect set forth
in Annex A hereto, U.S. $________ certificate balance of the above-captioned
Certificates held by us or on our behalf are beneficially owned by non-U.S.]
person(s). As used in this paragraph, the term βU.S. personβ has the meaning
given to it by Regulation S under the United States Securities Act of 1933,
as
amended (the βSecurities Actβ).
Β
We
further certify (i) that we are not making available herewith for exchange
any
portion of the Temporary Regulation S Global Certificates excepted in such
certificates and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in
the
Certificates identified above are no longer true and cannot be relied upon
as of
the date hereof. We understand that this certification is required in connection
with certain securities laws of the United States. In connection therewith,
if
administrative or legal proceedings are commenced or threatened in connection
with this certificate is or would be relevant, we irrevocably authorized you
to
produce this certificate to any interested party in such
proceedings.
Β
B-4-1
Yours
faithfully,
Β
[[Insert
Name of Depositary for Euroclear], as operator of the Euroclear
system]
Β
or
Β
[CLEARSTREAM,
SOCIΓTΓ ANONYME]
Β
By:_______________________________________
Β
B-4-2
ANNEX
A TO EXHIBIT B-4
Β
FORM
OF
MEMBER ORGANIZATION CERTIFICATE
Β
[(Insert
Name of Depositary for
Β
Euroclear),
as operator of the
Β
Euroclear
system or Clearstream, sociΓ©tΓ© anonyme]
Β
|
Re:
|
Deutsche
Mortgage Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__]
Mortgage Pass-through Certificates, (the βTrustβ) Class [B-3, B-4, B-5,
P-1, P-2] Certificates (the βCertificatesβ)
|
Β
Ladies
and Gentlemen:
Β
Reference
is hereby made to the Pooling and Servicing Agreement (the βAgreementβ), dated
as of [____________], 200[__], among Deutsche Mortgage Securities, Inc. (the
βDepositorβ), [Name of Master Servicer]., as master servicer and securities
administrator (the βMaster Servicerβ) and [Name of Trustee], as trustee (the
βTrusteeβ). Capitalized terms used herein but not defined herein shall have the
meanings assigned thereto in the Agreement.
Β
This
is
to certify that, as of the date hereof and except as set forth below, the
Certificates held by you for our account [except $ ________________ of such
beneficial interest in such Certificates in respect of which we are not able
to
certify and as to which we understand the exercise of any rights to payments
thereon or the exchange for Permanent Regulation S Global Certificates cannot
be
made until we do so certify,] are beneficially owned by non-U.S. persons. As
used in this paragraph, the term βU.S. personβ has the meaning given to it by
Regulation S under the Securities Act of 1933, as amended.
Β
We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Certificates
held
by you for our account in accordance with your documented procedures if any
applicable statement herein is not correct on such date, and in the absence
of
any such notification it may be assumed that this certificate applies as of
such
date.
Β
Dated:
____________, 200__(1)
Faithfully,
Β
[Name
of
Person giving the certificate]
Β
_______________
(1)
To be
dated no earlier than 15 days prior to the event to which the certification
relates.
B-4-3
EXHIBIT
C
Β
FORM
OF
TRANSFER AFFIDAVIT
Β
|
Affidavit
pursuant to Section 860E(e)(4) of the Internal Revenue Code of 1986
as
amended and for other purposes
|
|
STATE
OF
|
)
|
| Β |
)ss:
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], being first duly sworn, deposes and says:
Β
1.Β That
he/she is [Title of Officer] of [Name of Investor] (the βInvestorβ), 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.
Β
C-1
Β
2.Β That
(i)
the Investor is not a βdisqualified organizationβ as defined in Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the βCodeβ), and
will not be a disqualified organization as of [Closing Date] [date of purchase];
(ii) it is not acquiring the Deutsche Mortgage Securities, Inc. Mortgage Loan
Trust, Series 200[__]-[__] Mortgage Pass-Through Certificates, Class R
Certificates (the βResidual Certificatesβ) 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 Mortgage 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.
Β
3.Β 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 βforeign trust,β as defined in Section 7701
(a)(31) of the Code.
Β
4.Β That
the
Investorβs taxpayer identification number is ________________.
Β
5.Β That
no
purpose of the acquisition of the Residual Certificates is to avoid or impede
the assessment or collection of tax.
Β
6.Β 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.
Β
7.Β That
the
Investor intends to pay taxes associated with holding the Residual Certificates
as they become due.
Β
8.Β The
Investor has provided the Securities Administrator with an opinion of counsel
on
which the Trustee, the Depositor, the Master Servicer and the Securities
Administrator may rely, acceptable to and in form and substance satisfactory
to
the Trustee to the effect that the purchase of Certificates is permissible
under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Trust Fund, the Trustee, the Depositor, the Master Servicer or the Securities
Administrator to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Pooling and Servicing Agreement.
Β
C-2
Β
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__.
Β
Β
[NAME
OF
INVESTOR]
Β
By:
_____________________________________
[Name
of
Officer]
[Title
of
Officer]
Β
[Address
of Investor for receipt of distributions]
Β
Address
of Investor for receipt of tax information:
Β
C-3
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.
Β
Subscribed
and sworn before me this ___ day of _________, 20___.
Β
NOTARY
PUBLIC
Β
|
STATE
OF
|
)
|
| Β |
)ss:
|
|
COUNTY
OF
|
)
|
Β
My
commission expires the ___ day of ___________________, 20___.
Β
C-4
FORM
OF
TRANSFEROR AFFIDAVIT
Β
|
STATE
OF NEW YORK
|
)
|
Β |
| Β |
)
|
ss.:
|
|
COUNTY
OF NEW YORK
|
)
|
Β |
| Β | Β | Β |
_________________________,
being duly sworn, deposes, represents and warrants as follows:
Β
1.Β I
am
aΒ ____________________
of _________________________ (the βOwnerβ), a corporation duly organized and
existing under the laws of _____________, on behalf of whom I make this
affidavit.
Β
2.Β The
Owner
is not transferring the Class R Certificates (the βResidual Certificatesβ) to
impede the assessment or collection of any tax.
Β
3.Β The
Owner
has no actual knowledge that the Person that is the proposed transferee (the
βPurchaserβ) of the Residual Certificates: (i) has insufficient assets to pay
any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Residual Certificates remain outstanding and (iii) is not
a
Permitted Transferee.
Β
4.Β The
Owner
understands that the Purchaser has delivered to the Trustee or a transfer
affidavit and agreement in the form attached to the Pooling and Servicing
Agreement as Exhibit C. The Owner does not know or believe that any
representation contained therein is false.
Β
5.Β At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Owner
has
determined that the Purchaser has historically paid its debts as they became
due
and has found no significant evidence to indicate that the Purchaser will not
continue to pay its debts as they become due in the future. The Owner
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Owner may continue to be liable
for
United States income taxes associated therewith) unless the Owner has conducted
such an investigation.
Β
6.Β Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement.
Β
Β
C-5
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of
________________, ____.
Β
|
[OWNER]
|
|
| Β | Β |
| Β | Β |
|
By:
|
Β |
| Β |
Name:
|
| Β |
Title:
[Vice] President
|
Β
ATTEST:
|
By:
|
Β |
| Β |
Name:
|
| Β |
Title:
[Assistant] Secretary
|
Β
Personally
appeared before me the above-named _________________, known or proved to me
to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the Owner, and acknowledged to me that [he/she] executed the same
as [his/her] free act and deed and the free act and deed of the
Owner.
Β
Subscribed
and sworn before me this ______ day of _____________, ____.
Β
| Β | Β |
| Β |
Notary
Public
|
| Β | Β |
| Β |
County
of _____________________________
|
| Β |
State
of _______________________________
|
| Β | Β |
| Β |
My
Commission expires:
|
C-6
EXHIBIT
D
Β
FORM
OF
ADDITION
NOTICE
[Date]
[Name
of Trustee]
[Address]
Attention:
Deutsche Mortgage Securities, Inc., 200[__]-[__]
| Β | |||
|
[Name
of Master Servicer]
[Address]
|
|||
Β
| Β Β Β Β Β Β Β |
Re:Β Β Β Β Β Β Β Β
Β
|
Pooling
and Servicing Agreement dated as of [____________], 200[__] among
Deutsche
Mortgage Securities, Inc. as Depositor, [Name of Master Servicer]
as
Master Servicer and Securities Administrator and [Name of Trustee]
as
Trustee
|
Β
Ladies
and Gentlemen:
Β
Pursuant
to Section 2.6 of the referenced Pooling and Servicing Agreement, Deutsche
Mortgage Securities, Inc. has designated Subsequent Loans to be sold to the
Trust Fund on __________, 200[__], with an aggregate principal balance of
$Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
as
of the
Subsequent Cut-Off Date. Capitalized terms not otherwise defined herein have
the
meaning set forth in the Pooling and Servicing Agreement.
Β
Please
acknowledge your receipt of this notice by countersigning the enclosed copy
in
the space indicated below and returning it to the attention of the
undersigned.
Β
|
Very
truly yours,
Β
|
|
|
DEUTSCHE
MORTGAGE SECURITIES, INC.,
as
Depositor
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
| Β | Β |
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
D-1
Acknowledged
and Agreed:
Β
[NAME
OF
TRUSTEE], as Trustee
Β
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
D-2
EXHIBIT
E
FORM
OF
SUBSEQUENT
TRANSFER INSTRUMENT
Pursuant
to this Subsequent Transfer Instrument, dated [____________], 200[__] (the
βInstrumentβ), between Deutsche Mortgage Securities, Inc. as seller (the
βDepositorβ), and [Name of Trustee] as trustee of the Deutsche Mortgage
Securities, Inc. Mortgage Loan Trust, Series 200[__]-[__], Mortgage Pass-Through
Certificates, as purchaser (the βTrusteeβ), and pursuant to the Pooling and
Servicing Agreement, dated as of [____________], 200[__] (the βPooling and
Servicing Agreementβ), among the Depositor, [Name of Master Servicer] as Master
Servicer and Securities Administrator and the Trustee, the Depositor and the
Trustee agree to the sale by the Depositor and the purchase by the Trustee
in
trust, on behalf of the Trust Fund, of the Loans listed on the attached Schedule
of Subsequent Loans (the βSubsequent Loansβ).
Β
Capitalized
terms used but not otherwise defined herein shall have the meanings set forth
in
the Pooling and Servicing Agreement.
Β
Section
1.Β Conveyance
of Subsequent Loans.
Β
(a)Β The
Depositor does hereby sell, transfer, assign, set over and convey to the Trustee
in trust, on behalf of the Trust Fund, without recourse, all of its right,
title
and interest in and to the Subsequent Loans, and including all amounts due
on
the Subsequent Loans after the related Subsequent Cut-Off Date, and all items
with respect to the Subsequent Loans to be delivered pursuant to Section 2.1
of
the Pooling and Servicing Agreement; provided, however that the Depositor
reserves and retains all right, title and interest in and to amounts due on
the
Subsequent Loans on or prior to the related Subsequent Cut-Off Date. The
Depositor, contemporaneously with the delivery of this Agreement, has delivered
or caused to be delivered to the Trustee each item set forth in Section 2.1
of
the Pooling and Servicing Agreement. The transfer to the Trustee by the
Depositor of the Subsequent Loans identified on the Loan Schedule shall be
absolute and is intended by the Depositor, the Trustee and the
Certificateholders to constitute and to be treated as a sale by the Depositor
to
the Trust Fund.
Β
(b)Β The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders all the right, title and interest
of
the Depositor, in, to and under the Subsequent Mortgage Loan Purchase Agreement,
dated the date hereof, between the Depositor as purchaser and the Mortgage
Loan
Seller as seller, to the extent of the Subsequent Loans.
Β
(c)Β Additional
terms of the sale are set forth on Attachment A hereto.
Β
Section
2.Β Representations
and Warranties; Conditions Precedent.
Β
(a)Β The
Depositor hereby confirms that each of the conditions and the representations
and warranties set forth in Section 2.6 of the Pooling and Servicing Agreement
are satisfied as of the date hereof.
Β
E-1
Β
(b)Β All
terms
and conditions of the Pooling and Servicing Agreement are hereby ratified and
confirmed; provided, however, that in the event of any conflict, the provisions
of this Instrument shall control over the conflicting provisions of the Pooling
and Servicing Agreement.
Β
Section
3.Β Recordation
of Instrument.
Β
To
the
extent permitted by applicable law, this Instrument, or a memorandum thereof
if
permitted under applicable law, is subject to recordation in all appropriate
public offices for real property records in all of 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
Certificateholdersβ expense on direction of the related Certificateholders, but
only when accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders or is necessary for the administration or servicing of the
Mortgage Loans.
Β
Section
4.Β Governing
Law.
Β
This
Instrument shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws, without giving effect to principles
of
conflicts of law (other than Section 5-1401 of the New York General Obligations
Law).
Β
Section
5.Β Counterparts.
Β
This
Instrument may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same instrument.
Β
Section
6.Β Successors
and Assigns.
Β
This
Instrument shall inure to the benefit of and be binding upon the Depositor
and
the Trustee and their respective successors and assigns.
Β
E-2
Β
|
DEUTSCHE
MORTGAGE SECURITIES, INC.
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
| Β | Β |
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
| Β | Β |
| Β | Β |
|
[NAME
OF TRUSTEE], as Trustee for Deutsche Mortgage Securities, Inc. Mortgage
Loan Trust, Series 200[__]-[__], Mortgage Pass-Through
Certificates
|
|
| Β | Β |
|
By:
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
Β
Β
Attachments
| A. |
Additional
terms of sale.
|
|
B.
|
Schedule
of Subsequent Mortgage Loans.
|
Β
E-3
EXHIBIT
F
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Master Servicer] [the Servicer]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as βApplicable Servicing Criteriaβ:
|
SERVICING
CRITERIA
|
RELEVANT
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
Β
|
|
Β
|
General
Servicing Considerations
|
Β
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third partyβs
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
Β |
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Β
|
Cash
Collection and Administration
|
X
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, βfederally insured depository institutionβ with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
F-1
|
SERVICING
CRITERIA
|
RELEVANT
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
Β
|
|
Β
|
Investor
Remittances and Reporting
|
X
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investorsβ or the trusteeβs records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicerβs
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Β
|
Pool
Asset Administration
|
X
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicerβs obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicerβs records regarding the mortgage loans agree with the Servicerβs
records with respect to an obligorβs unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entityβs
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
F-2
|
SERVICING
CRITERIA
|
RELEVANT
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
Β
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligorβs mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicerβs funds and not charged to the
obligor, unless the late payment was due to the obligorβs error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligorβs records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
Β |
|
Β
|
Β
|
Β
|
Β
[NAME
OF SERVICER] [MASTER SERVICER] [NAME OF SUBSERVICER]
Β
Date:Β _________________________
Β
By:
Name:
Β ________________________________
Title:
Β ________________________________
F-3
Schedule
1122 (Pooling and Servicing Agreement)
Β
Assessments
of Compliance and Attestation Reports Servicing
Criteria2
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Β
Depositor
|
Seller
|
Servicer
|
Trustee
|
Custodian
|
Paying
Agent
|
Master
Servicer
|
Securities
Administrator
|
||
|
(1)
|
General
Servicing Considerations
|
Β |
Β
|
Β
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
|
Β
|
(i)
|
monitoring
performance or other triggers and events of default
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
X
|
X
|
|
Β
|
(ii)
|
monitoring
performance of vendors of activities outsourced
|
Β |
Β
|
X
|
Β
|
Β
|
Β |
X
|
Β |
|
Β
|
(iii)
|
maintenance
of back-up servicer for pool assets
|
Β |
Β
|
Β |
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(iv)
|
fidelity
bond and E&O policies in effect
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
X
|
Β |
|
(2)
|
Cash
Collection and Administration
|
Β |
Β
|
Β |
Β
|
Β
|
Β
|
Β | Β | |
|
Β
|
(I)
|
TIMING
OF DEPOSITS TO CUSTODIAL ACCOUNT
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
X
|
X
|
|
Β
|
(II)
|
WIRE
TRANSFERS TO INVESTORS BY AUTHORIZED PERSONNEL
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
Β
|
X
|
|
Β
|
(iii)
|
advances
or guarantees made, reviewed and approved as required
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
X
|
Β
|
|
Β
|
(iv)
|
accounts
maintained as required
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
X
|
X
|
|
Β
|
(v)
|
accounts
at federally insured depository institutions
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
X
|
X
|
|
Β
|
(vi)
|
unissued
checks safeguarded
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
Β |
X
|
|
Β
|
(vii)
|
monthly
reconciliations of accounts
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
X
|
X
|
|
(3)
|
Investor
Remittances and Reporting
|
Β |
Β
|
Β
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
|
Β
|
(I)
|
INVESTOR
REPORTS
|
Β |
Β
|
X
|
Β
|
Β
|
Β |
X
|
X
|
|
Β
|
(ii)
|
remittances
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
Β |
X
|
|
Β
|
(iii)
|
proper
posting of distributions
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
Β |
X
|
|
Β
|
(iv)
|
reconciliation
of remittances and payment statements
|
Β |
Β
|
X
|
Β
|
Β
|
X
|
X
|
X
|
|
(4)
|
Pool
Asset Administration
|
Β |
Β
|
Β |
Β
|
Β
|
Β | Β | Β | |
________________
*
The
descriptions of the Item 1122(d) servicing criteria use key words and phrases
and are not verbatim recitations of the servicing criteria. Refer to Regulation
AB, Item 1122 for a full description of servicing criteria.
Β
Β
F-4
Β
Β
Β
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Β
Depositor
|
Seller
|
Servicer
|
Trustee
|
Custodian
|
Paying
Agent
|
Master
Servicer
|
Securities
Administrator
|
||
|
Β
|
(i)
|
maintenance
of pool collateral
|
Β |
Β
|
X
|
Β
|
X
|
Β | Β | Β |
|
Β
|
(ii)
|
safeguarding
of pool assets/documents
|
Β |
Β
|
X
|
Β
|
X
|
Β | Β | Β |
|
Β
|
(iii)
|
additions,
removals and substitutions of pool assets
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(iv)
|
posting
and allocation of pool asset payments to pool assets
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(v)
|
reconciliation
of servicer records
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(VI)
|
MODIFICATIONS
OR OTHER CHANGES TO TERMS OF POOL ASSETS
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(vii)
|
loss
mitigation and recovery actions
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
| Β | (viii) | Β records regarding collection efforts | Β | Β | X | Β | Β | Β | Β | Β |
|
Β
|
(ix)
|
adjustments
to variable interest rates on pool assets
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(x)
|
matters
relating to funds held in trust for obligors
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(xi)
|
payments
made on behalf of obligors (such as for taxes or
insurance)
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
|
Β
|
(xii)
|
late
payment penalties with respect to payments made on behalf of
obligors
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
Β
|
Β
|
| Β |
(xiii)
|
Β records with respect to payments made on behalf of obligors | Β | Β | X | Β | Β | Β | Β | Β |
|
Β
|
(xiv)
|
recognition
and recording of delinquencies, charge-offs and uncollectible
accounts
|
Β |
Β
|
X
|
Β
|
Β
|
Β
|
X
|
Β
|
|
Β
|
(xv)
|
maintenance
of external credit enhancement or other support
|
Β |
Β
|
Β
|
Β
|
Β
|
Β
|
Β
|
X
|
Β
F-5
EXHIBIT
G
FORM
OF
BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
Β
This
certificate is being delivered pursuant to Section 3.17 of the Pooling and
Servicing Agreement, dated as of [________] 1, 200[__] (the βAgreementβ), among
Deutsche Mortgage Securities, Inc., as depositor (the βDepositorβ),
[____________] as master servicer (in that capacity, the βMaster Servicerβ) and
securities Administrator and [___________________] as trustee (the βTrusteeβ).
Capitalized terms used herein and not otherwise defined have the meanings set
forth in the Agreement.
Β
I,
[identify the certifying individual], on behalf of [_______________], as trustee
(the βTrusteeβ) certify that:
Β
1.Β I
have
reviewed the annual report on Form 10-K for the fiscal year [___], and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by that annual report, of the
trust (the βTrustβ) created pursuant to the Agreement; and
Β
2.Β Based
on
my knowledge, the distribution information in these reports and any other
information provided by the Trustee for inclusion in these reports, taken as
a
whole, does not contain any untrue statement of a material fact or omit to
state
a material fact necessary to make the statements made, in light of the
circumstances under which the statements were made, not misleading as of the
last day of the period covered by that annual report.
Β
Β
|
Date:
|
Β
|
| Β | Β |
|
[Signature]
|
Β |
|
Name:
|
Β |
|
Title:
|
Β |
Β
G-1
SCHEDULE
1
Β
LOAN
SCHEDULE
Β
[PROVIDED
UPON REQUEST]
SCHEDULE
2
Β
PREPAYMENT
CHARGE SCHEDULE
Β
[PROVIDED
UPON REQUEST]
SCHEDULE
3
Β
IDENTIFIED
SUBSEQUENT LOANS
Β
[PROVIDED
UPON REQUEST]
