DEUTSCHE MORTGAGE SECURITIES, INC.
Depositor
and
XXXXX FARGO BANK, N.A.
Master Servicer and Securities Administrator
and
HSBC BANK USA, NATIONAL ASSOCIATION
Trustee
_____________________
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2004
_____________________
Mortgage Pass-Through Certificates
Series 2004-5
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS..................................................................................5
Section 1.2 ALLOCATION OF CERTAIN INTEREST SHORTFALLS...................................................45
ARTICLE II
CONVEYANCE OF TRUST FUND; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF TRUST FUND....................................................................47
Section 2.2 ACCEPTANCE BY TRUSTEE.......................................................................47
Section 2.3 REPURCHASE OR SUBSTITUTION OF LOANS.........................................................47
Section 2.4 AUTHENTICATION AND DELIVERY OF CERTIFICATES; DESIGNATION OF CERTIFICATES AS REMIC REGULAR
AND RESIDUAL INTERESTS......................................................................50
Section 2.5 REPRESENTATIONS AND WARRANTIES OF THE MASTER SERVICER.......................................51
Section 2.6 ESTABLISHMENT OF THE TRUST..................................................................52
ARTICLE III
ADMINISTRATION AND SERVICING OF THE LOANS; ACCOUNTS
Section 3.1 MASTER SERVICER.............................................................................53
Section 3.2 REMIC-RELATED COVENANTS.....................................................................54
Section 3.3 MONITORING OF SERVICERS.....................................................................54
Section 3.4 FIDELITY BOND...............................................................................55
Section 3.5 POWER TO ACT; PROCEDURES....................................................................55
Section 3.6 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS..................................................56
Section 3.7 RELEASE OF MORTGAGE FILES...................................................................57
Section 3.8 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER SERVICER TO BE HELD FOR TRUSTEE........57
Section 3.9 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE POLICIES......................................58
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS............................................59
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES......................................59
Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE POLICIES AND DOCUMENTS....................60
Section 3.13 REALIZATION UPON DEFAULTED LOANS............................................................60
Section 3.14 COMPENSATION FOR THE MASTER SERVICER........................................................60
Section 3.15 REO PROPERTY................................................................................60
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE...............................................61
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Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT............................................62
Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.......................................62
Section 3.19 UCC.........................................................................................63
Section 3.20 OBLIGATION OF THE MASTER SERVICER IN RESPECT OF COMPENSATING INTEREST.......................63
Section 3.21 RESERVED....................................................................................64
Section 3.22 PROTECTED ACCOUNTS..........................................................................64
Section 3.23 DISTRIBUTION ACCOUNT........................................................................65
Section 3.24 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION ACCOUNT...........................66
Section 3.25 RESERVE FUND................................................................................68
Section 3.26 PREPAYMENT PENALTY VERIFICATION.............................................................69
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES; STATEMENTS AND REPORTS
Section 4.1 DISTRIBUTIONS TO CERTIFICATEHOLDERS.........................................................71
Section 4.2 ALLOCATION OF REALIZED LOSSES...............................................................77
Section 4.3 STATEMENTS TO CERTIFICATEHOLDERS............................................................79
Section 4.4 ADVANCES....................................................................................82
Section 4.5 COMPLIANCE WITH WITHHOLDING REQUIREMENTS....................................................83
Section 4.6 REMIC DISTRIBUTIONS.........................................................................83
ARTICLE V
THE CERTIFICATES
Section 5.1 THE CERTIFICATES............................................................................86
Section 5.2 CERTIFICATES ISSUABLE IN CLASSES; DISTRIBUTIONS OF PRINCIPAL AND INTEREST; AUTHORIZED
DENOMINATIONS...............................................................................86
Section 5.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.......................................87
Section 5.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES...........................................92
Section 5.5 PERSONS DEEMED OWNERS.......................................................................92
ARTICLE VI
THE DEPOSITOR, MASTER SERVICER AND THE CREDIT RISK MANAGER
Section 6.1 LIABILITY OF THE DEPOSITOR AND THE MASTER SERVICER..........................................93
Section 6.2 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE MASTER SERVICER.............................93
Section 6.3 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE MASTER SERVICER, THE SERVICERS, THE SECURITIES
ADMINISTRATOR AND OTHERS....................................................................93
Section 6.4 LIMITATION ON RESIGNATION OF THE MASTER SERVICER............................................94
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Section 6.5 ASSIGNMENT OF MASTER SERVICING..............................................................94
Section 6.6 RIGHTS OF THE DEPOSITOR IN RESPECT OF THE MASTER SERVICER...................................95
Section 6.7 DUTIES OF THE CREDIT RISK MANAGER...........................................................96
Section 6.8 LIMITATION UPON LIABILITY OF THE CREDIT RISK MANAGER........................................96
Section 6.9 REMOVAL OF THE CREDIT RISK MANAGER..........................................................96
ARTICLE VII
DEFAULT
Section 7.1 MASTER SERVICER EVENTS OF DEFAULT...........................................................97
Section 7.2 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR....................................................98
Section 7.3 NOTIFICATION TO CERTIFICATEHOLDERS..........................................................99
Section 7.4 WAIVER OF MASTER SERVICER EVENTS OF DEFAULT................................................100
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 8.1 DUTIES OF TRUSTEE AND SECURITIES ADMINISTRATOR.............................................101
Section 8.2 CERTAIN MATTERS AFFECTING TRUSTEE AND SECURITIES ADMINISTRATOR.............................102
Section 8.3 TRUSTEE AND SECURITIES ADMINISTRATOR NOT LIABLE FOR CERTIFICATES OR LOANS..................104
Section 8.4 TRUSTEE, MASTER SERVICER AND SECURITIES ADMINISTRATOR MAY OWN CERTIFICATES.................104
Section 8.5 FEES AND EXPENSES OF TRUSTEE AND SECURITIES ADMINISTRATOR..................................104
Section 8.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND SECURITIES ADMINISTRATOR..........................105
Section 8.7 RESIGNATION AND REMOVAL OF TRUSTEE AND SECURITIES ADMINISTRATOR............................105
Section 8.8 SUCCESSOR TRUSTEE OR SECURITIES ADMINISTRATOR..............................................106
Section 8.9 MERGER OR CONSOLIDATION OF TRUSTEE OR SECURITIES ADMINISTRATOR.............................107
Section 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE..............................................107
Section 8.11 APPOINTMENT OF OFFICE OR AGENCY............................................................108
Section 8.12 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE..............................................108
ARTICLE IX
TERMINATION
Section 9.1 TERMINATION UPON PURCHASE OR LIQUIDATION OF ALL LOANS......................................110
Section 9.2 ADDITIONAL TERMINATION REQUIREMENTS........................................................112
ARTICLE X
REMIC PROVISIONS
Section 10.1 REMIC ADMINISTRATION.......................................................................113
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Section 10.2 PROHIBITED TRANSACTIONS AND ACTIVITIES.....................................................115
Section 10.3 INDEMNIFICATION............................................................................116
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 AMENDMENT..................................................................................117
Section 11.2 RECORDATION OF AGREEMENT; COUNTERPARTS.....................................................118
Section 11.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.................................................118
Section 11.4 GOVERNING LAW..............................................................................119
Section 11.5 NOTICES....................................................................................119
Section 11.6 SEVERABILITY OF PROVISIONS.................................................................120
Section 11.7 NOTICE TO RATING AGENCIES..................................................................120
Section 11.8 ARTICLE AND SECTION REFERENCES.............................................................121
Section 11.9 GRANT OF SECURITY INTEREST.................................................................121
ARTICLE XII
CERTAIN MATTERS REGARDING THE CERTIFICATE INSURER
Section 12.1 EXERCISE OF RIGHTS OF HOLDER OF THE INSURED CERTIFICATES...................................121
Section 12.2 TRUSTEE AND SECURITIES ADMINISTRATOR TO ACT SOLELY WITH CONSENT OF CERTIFICATE INSURER.....122
Section 12.3 TRUST FUND AND ACCOUNTS HELD FOR BENEFIT OF CERTIFICATE INSURER............................122
Section 12.4 CLAIMS UPON THE POLICY; POLICY PAYMENTS ACCOUNT............................................123
Section 12.5 EFFECT OF PAYMENTS BY CERTIFICATE INSURER; SUBROGATION.....................................124
Section 12.6 NOTICES TO CERTIFICATE INSURER.............................................................125
Section 12.7 THIRD PARTY BENEFICIARY....................................................................125
Section 12.8 TRUSTEE TO HOLD THE POLICY.................................................................125
Section 12.9 Termination of Certain of Certificate Insurer's Rights.....................................125
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EXHIBITS
Exhibit A-1 - Forms of Class A-[1][2][3][4A][4B][5A][5B] Certificates
Exhibit A-2 - Forms of Class A-IO Certificates
Exhibit A-3 - Forms of Class [M-1][M-2][M-3] Certificates
Exhibit A-4 - Forms of Class CE Certificates
Exhibit A-5 - Forms of Class P Certificates
Exhibit A-6 - Forms of Class R Certificates
Exhibit B - [Reserved]
Exhibit C - Form of Transfer Affidavit
Exhibit D - Form of Transferor Certificate
Exhibit E - Form of Investment Letter (Non-Rule 144A)
Exhibit F - Form of Rule 144A Investment Letter
Exhibit G - Form of Benefit Plan Affidavit
Schedule One - Loan Schedule
Schedule Two - Prepayment Charge Schedule
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This Pooling and Servicing Agreement, dated and effective as of August
1, 2004 (this "Agreement"), is executed by and among Deutsche Mortgage
Securities, Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N. A., as
master servicer (the "Master Servicer") and securities administrator (the
"Securities Administrator"), and HSBC Bank USA, National Association as trustee
(the "Trustee"). Capitalized terms used in this Agreement and not otherwise
defined have the meanings ascribed to such terms in Article I hereof.
PRELIMINARY STATEMENT
The Depositor at the Closing Date is the owner of the Loans and the
other property being conveyed by it to the Trustee for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from the
Trust Fund as consideration for its transfer to the Trust Fund of the Loans and
certain other assets and will be the owner of the Certificates. The Depositor
has duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Loans and the issuance to the Depositor of
the Certificates representing in the aggregate the entire beneficial ownership
of the Trust Fund. All covenants and agreements made by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee herein with
respect to the Loans and the other property constituting the Trust Fund are for
the benefit of the Holders from time to time of the Certificates and for the
benefit of the Certificate Insurer. 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.
The Certificates issued hereunder, other than the Class CE, Class P and
Class R Certificates, have been offered for sale pursuant to a Prospectus, dated
January 28, 2004, and a Prospectus Supplement, dated August 25, 2004 of the
Depositor (together, the "Prospectus"). The Trust Fund created hereunder is
intended to be the "Trust" as described in the Prospectus and the Certificates
are intended to be the "Certificates" described therein.
REMIC I
As provided herein, the Trustee shall elect to treat the segregated
pool of assets consisting of the Loans and other related assets (other than the
Reserve Fund) in the Trust Fund subject to this Agreement as multiple REMICs for
federal income tax purposes, and such segregated pool of assets shall be
designated as "REMIC I." Component R-1 of the Class R Certificate shall
represent the sole class of "residual interests" in REMIC I for purposes of the
REMIC Provisions under 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 solely for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each of the Uncertificated REMIC I Regular Interests. None of the
Uncertificated REMIC I Regular Interests will be certificated.
Initial
Uncertificated Uncertified REMIC 1 Assumed Final Maturity
Designation Principal Balance Pass-Through Rate Date(1)
LTI-1 $425,154,869.32 Variable(2) July 25, 2034
LTI-IO-1 $12,202,800.00 Variable(2) July 25, 2034
LTI-IO-2 $12,202,700.00 Variable(2) July 25, 2034
LTI-IO-3 $12,202,800.00 Variable(2) July 25, 2034
LTI-IO-4 $24,405,500.00 Variable(2) July 25, 2034
LTI-P $100 Variable(2) July 25, 2034
_______________
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(1) Solely 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 "latest possible maturity date" for each Class of Certificates
that represents one or more of the "regular interests" in REMIC I.
(2) Calculated in accordance with the definition of "Uncertified REMIC I
Pass-Through Rate" herein.
REMIC II
As provided herein, the Trustee shall elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets shall be
designated as "REMIC II". Component R-2 of the Class R Certificate shall
represent the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions under federal income tax law. The following table irrevocably
sets forth the designations, the Uncertificated REMIC II Pass-Through Rate, the
initial Uncertificated Principal Balance, and solely for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each of the Uncertificated REMIC II Regular Interests. None of the
Uncertificated REMIC II Regular Interests will be certificated.
Uncertificated REMIC II Uncertificated
Regular Interest REMIC II Pass Initial Uncertificated Latest
Designation Through Rate Principal Balance Possible Maturity(1)
LTII-AA (2) $ 476,445,295.93 July 25, 2034
LTII -A1 (2) $ 2,802,000.00 July 25, 2034
LTII -A2 (2) $ 166,000.00 July 25, 2034
LTII -A3 (2) $ 765,000.00 July 25, 2034
LTII -A4A (2) $ 100,000.00 July 25, 2034
LTII -A4B (2) $ 238,660.00 July 25, 2034
LTII -A5A (2) $ 392,000.00 July 25, 2034
LTII -A5B (2) $ 94,170.00 July 25, 2034
LTII -M1 (2) $ 133,700.00 July 25, 2034
LTII -M2 (2) $ 80,220.00 July 25, 2034
LTII -M3 (2) $ 60,770.00 July 25, 2034
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LTII -ZZ (2) $ 4,890,853.39 July 25, 2034
LTII -IO-A(3) (2) (4) July 25, 2034
LTII -IO-B(5) (2) (6) July 25, 2034
LTII-P (2) $ 100.00 July 25, 2034
__________________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for Loan with the latest maturity date has been designated as the "latest
possible maturity date" for each Uncertificated REMIC II Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC II
Pass-Through Rate" herein.
(3) REMIC II Regular Interest LTII-IO-A will accrue interest at a rate of (i)
for the first twelve distribution dates, 1.00% and (ii) thereafter, 0.00%.
(4) REMIC II Regular Interest LTII-IO-A will not have an Uncertificated
Principal Balance, but will accrue interest on its Uncertificated Notional
Amount, as defined herein.
(5) REMIC II Regular Interest LTII-IO-B will accrue interest at a rate of (i)
for the first twenty-four distribution dates, 3.50% and (ii) thereafter,
0.00%.
(6) REMIC II Regular Interest LTII-IO-B will not have an Uncertificated
Principal Balance, but will accrue interest on its Uncertificated Notional
Amount, as defined herein.
REMIC III
As provided herein, the Trustee shall elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets shall be
designated as "REMIC III". Component R-3 of the Class R Certificate shall
represent the sole class of "residual interests" in REMIC III for purposes of
the REMIC Provisions under federal income tax law. The following table
irrevocably sets forth the designations, the Remittance Rate and initial
Certificate Principal Balance or Notional Amount for each Class of Certificates
which, together with the Class R-3 Component, constitute the entire beneficial
interests in REMIC III. Determined solely for purposes of satisfying Treasury
regulation section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each Class of Certificates shall be the first Distribution Date that is two
years after the end of the remaining amortization schedule of the Loan in the
Mortgage Pool that has, as of the Closing Date, the longest remaining
amortization schedule, irrespective of its scheduled maturity:
Initial
Certificate Assumed Final Maturity
Class Designation Principal Balance Pass-Through Rate Date1
Class A-1 $280,200,000 One-Month LIBOR + July 25, 2034
0.26% (2)
Class A-2 $16,600,000 4.980% (2) July 25, 2034
Class A-3 $76,500,000 5.590% (2) July 25, 2034
Class A-4A $10,000,000 5.625% (2) July 25, 2034
Class A-4B $23,866,000 5.625% (2) July 25, 2034
Class A-5A $39,200,000 5.030% (2) July 25, 2034
Class A-5B $9,417,000 5.440% (2) July 25, 2034
Class A-IO $60,771,000 4.500% (2) July 25, 2034
_____________________
1 The Distribution Date in the month after the maturity date for the latest
maturing Loan.
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Class M-1 $13,370,000 5.625% (2) July 25, 2034
Class M-2 $8,022,000 5.625% (2) July 25, 2034
Class M-3 $6,077,000 5.625% (2) July 25, 2034
Class CE $2,916,669.32 (4) July 25, 2034
Class P $100 N/A(5) July 25, 2034
___________________
(1) Solely 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
"latest possible maturity date" for each Class of Certificates.
(2) Subject to a rate cap as described herein.
(3) The Class A-IO Certificates will accrue interest at their Pass-Through Rate
on the Notional Amount of the Class A-IO Certificates calculated in
accordance with the definition of "Notional Amount" herein. The Class A-IO
Certificates will not be entitled to distributions in respect of principal.
For federal income tax purposes, the Class A-IO Certificates will not have
a Notional Amount, but will be entitled to 100% of amounts distributed on
REMIC II Regular Interest LTII-IO-A and REMIC II Regular Interest
LTII-IO-B.
(4) The Class CE Certificates will not accrue interest on their Certificate
Principal Balance, but will accrue interest at their Pass-Through Rate on
the Notional Amount of the Class CE Certificates outstanding from time to
time which shall equal the aggregate of the Uncertificated Principal
Balances of the REMIC II Regular Interests (other than REMIC II Regular
Interest LTII-P, REMIC II Regular Interest LTII-IO-A and REMIC II Regular
Interest LTII-IO-B).
(5) The Class P Certificates are not entitled to distributions in respect of
interest.
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W I T N E S S E T H
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS.
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article:
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Loan, as
applicable, 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).
ACCOUNT: The Distribution Account and any Protected Account as the
context may require.
ADVANCE: Either (i) a Monthly Advance made by a Servicer as such term
is defined in and pursuant to the related Servicing Agreement or (ii) an advance
made by the Master Servicer pursuant to Section 4.4.
AFFILIATE: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officer's Certificate of the Servicer or the Depositor to
determine whether any Person is an Affiliate of such party.
AGREEMENT: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
ANNIVERSARY: Each anniversary of the Cut-Off Date.
APPRAISED VALUE: The amount set forth in an appraisal made by or for
the mortgage originator in connection with its origination of each Loan.
ALLOCATED REALIZED LOSS AMOUNT: With respect to any Class of Mezzanine
Certificates and any Distribution Date, an amount equal to the sum of any
Realized Loss allocated to that Class of Mezzanine Certificates on such
Distribution Date and any Allocated Realized Loss Amount for that Class
remaining unpaid from the previous Distribution Date.
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ASSIGNMENT: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction where the related Mortgaged Property is located to reflect of
record the sale and assignment of the Loan to the Trustee, which assignment,
notice of transfer or equivalent instrument may, if permitted by law, be in the
form of one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county.
ASSIGNMENT AGREEMENTS: Shall mean (i) the Assignment, Assumption and
Recognition Agreement, dated as of August 30, 2004, among the Seller, the
Depositor and GMAC, pursuant to which the GMAC Servicing Agreement was assigned
to the Depositor, (ii) the Assignment, Assumption and Recognition Agreement,
dated as of August 30, 2004, among the Seller, the Depositor and GreenPoint
pursuant to which the GreenPoint Servicing Agreement was assigned to the
Depositor, and (iii) the Assignment, Assumption and Recognition Agreement, dated
as of August 30, 2004, among the Seller, the Depositor and M&T, pursuant to
which the M&T Servicing Agreement was assigned to the Depositor.
AUTHORIZED DENOMINATION: With respect to the Class A Certificates and
the Class M Certificates, minimum initial Certificate Principal Balances of
$25,000 and integral multiples of $1.00 in excess thereof. With respect to the
Class P Certificates, minimum initial Certificate Principal Balances of $20 and
integral multiples thereof. With respect to the Class CE Certificates, minimum
initial Certificate Principal Balances of $10,000 and integral multiples of
$1.00 in excess thereof. With respect to the Class R Certificate, a single
denomination of 100% Percentage Interest in such Certificate.
AVAILABLE DISTRIBUTION AMOUNT: With respect to a Distribution Date, the
sum of the following amounts:
(1) the total amount of all cash received by or on behalf of each
Servicer with respect to the Loans by the Determination Date for such
Distribution Date and not previously distributed (including Liquidation
Proceeds, Insurance Proceeds and Subsequent Recoveries), except:
(a) all Prepaid Monthly Payments;
(b) all Curtailments received after the applicable Prepayment Period,
together with all interest paid by the related Mortgagor in connection with
such Curtailments;
(c) all Payoffs received after the applicable Prepayment Period,
together with all interest paid by the related Mortgagor in connection with
such Payoffs;
(d) Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries
on the Loans received after the applicable Prepayment Period;
(e) all amounts which are due and reimbursable to the related Servicer
pursuant to the terms of the related Servicing Agreement or to the Master
Servicer, the Securities Administrator, the Trustee or the Custodian
pursuant to the terms of this Agreement;
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(f) the Servicing Fee, the Master Servicing Fee and the Credit Risk
Management Fee for each such Loan for such Distribution Date;
(g) all investment earnings, if any, on amounts on deposit in the
Distribution Account and each Protected Account;
(h) any premiums payable in connection with any lender paid primary
mortgage insurance policies, and
(i) the amount of any Prepayment Charges collected by the related
Servicer in connection with the Principal Prepayment of any of the Loans.
(2) to the extent advanced by the related Servicer and/or the Master
Servicer and not previously distributed, the amount of any Advance made by the
related Servicer and/or the Master Servicer with respect to such Distribution
Date relating to the Loans;
(3) to the extent advanced by the related Servicer and/or the Master
Servicer and not previously distributed, any amount payable as Compensating
Interest by the related Servicer and/or the Master Servicer on such Distribution
Date relating to the Loans; and
(4) the total amount, to the extent not previously distributed, of all
cash received by the Distribution Date by the Trustee or the Master Servicer, in
respect of a Purchase Obligation under Section 2.3 or any permitted repurchase
of a Loan.
BANKRUPTCY LOSS: A loss on a Loan as reported by the related Servicer,
arising out of (i) a reduction in the scheduled Monthly Payment for such Loan by
a court of competent jurisdiction in a case under the United States Bankruptcy
Code, other than any such reduction that arises out of clause (ii) of this
definition of "Bankruptcy Loss," including, without limitation, any such
reduction that results in a permanent forgiveness of principal, or (ii) with
respect to any Loan, a valuation, by a court of competent jurisdiction in a case
under such Bankruptcy Code, of the related Mortgaged Property in an amount less
than the then outstanding Principal Balance of such Loan.
BENEFICIAL HOLDER: A Person holding a beneficial interest in any
Book-Entry Certificate as or through a Depository Participant or an Indirect
Depository Participant or a Person holding a beneficial interest in any
Definitive Certificate.
BOOK-ENTRY CERTIFICATES: The Class A Certificates and the Class M
Certificates, beneficial ownership and transfers of which shall be made through
book entries as described in Section 5.1 and Section 5.3.
BUSINESS DAY: Any day other than a Saturday, a Sunday, or a day on
which banking institutions in Maryland, Minnesota or New York are authorized or
obligated by law or executive order to be closed.
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CAP CONTRACT: Shall mean the Cap Contract between the Trustee and Swiss
Re Financial Corporation, together with any successor thereto, for the benefit
of the Holders of the Class A-1 Certificates.
CERTIFICATE: Any one of the Certificates issued pursuant to this
Agreement, executed and authenticated by or on behalf of the Securities
Administrator hereunder in substantially one of the forms set forth in Exhibits
X-0, X-0, X-0, X-0, A-5 and A-6 hereto.
CERTIFICATE INSURER: Financial Guaranty Insurance Company, a New York
stock insurance corporation, organized and created under the laws of the State
of New York and its successors in interest.
CERTIFICATE INSURER ACCOUNT: An account of the Certificate Insurer
maintained at JPMorgan Chase Bank (ABA No. 040300272), Account No. 00000000,
Attention: Deutsche Bank Mortgage Securities, Inc., Series 2004-5, or such other
account as may be designated by the Certificate Insurer to the Securities
Administrator in writing not less than five Business Days prior to the related
Distribution Date. Any wire transfers to the Certificate Insurer Account shall
reference the Policy No. of the Policy.
CERTIFICATE INSURER DEFAULT: The existence and continuance of any of
the following:
(a) The Certificate Insurer fails to make a payment required under the
Policy in accordance with its terms; or
(b)(i) the Certificate Insurer (A) files any petition or commences any
case or proceeding under any provision or chapter of the Bankruptcy Code or
any other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (B) makes a general
assignment with respect to all or substantially all of its assets for the
benefit of its creditors, or (C) has an order for relief entered against it
under the Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or (ii) a court of
competent jurisdiction, the New York Department of Insurance or other
competent regulatory authority enters a final and nonappealable order,
judgment or decree (A) appointing a custodian, trustee, agent or receiver
for the Certificate Insurer or for all or any material portion of its
property or (B) authorizing the taking of possession by a custodian,
trustee, agent or receiver of the Certificate Insurer (or the taking of
possession of all or any material portion of the property of the
Certificate Insurer).
CERTIFICATE INSURER PREMIUM: The Policy premium payable pursuant to
Section 4.1(a)(i)(A) hereof for each Distribution Date in an amount equal to the
Certificate Insurer Premium Rate accrued for one month, on the basis of a
360-day year consisting of twelve 30-day months, on the aggregate Certificate
Principal Balance of the Insured Certificates immediately prior to such
Distribution Date.
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CERTIFICATE INSURER PREMIUM RATE: The per annum rate at which the
Certificate Insurer Premium for the Policy is calculated, as set forth in the
Premium Letter (as defined in the Insurance Agreement).
CERTIFICATE PRINCIPAL BALANCE: The Certificate Principal Balance with
respect to a Senior Certificate (other than the Class A-IO Certificates, which
have no Certificate Principal Balance), Class M Certificate or Class P
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 and the other assets in the Trust
Fund. The Certificate Principal Balance of a Senior Certificate, Class M
Certificate or Class P 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; provided, however, that solely for purposes of
determining the Certificate Insurer's rights as subrogee to the Holders of the
Insured Certificates, the Certificate Principal Balance of any Insured
Certificate shall be deemed not to be reduced by any principal amounts paid to
the Holder thereof from payments made by the Certificate Insurer under the
Policy, unless such amounts have been reimbursed to the Certificate Insurer
pursuant to Section 4.1(a)(i)(C) and 4.1(a)(ii)(B), and (ii) with respect to any
Class M Certificate, any reductions in the Certificate Principal Balance of such
Certificate deemed to have occurred in connection with allocations of Realized
Losses, if any, plus any Subsequent Recoveries added to the Certificate
Principal Balance of such Class M Certificate pursuant to Section 5.4. The
Certificate Principal Balance of the Class CE Certificates as of any date of
determination is equal to the excess, if any, of (i) the then aggregate
Principal Balance of the Loans over (ii) the then aggregate Certificate
Principal Balance of the Senior Certificates, the Class M Certificates and the
Class P Certificates. 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 Classes (such as the Class A Certificates,
Senior Certificates and Mezzanine Certificates) shall mean the aggregate
Certificate Principal Balances of all Classes of Certificates included in such
group.
CERTIFICATE REGISTER: The register maintained pursuant to Section 5.3.
CERTIFICATEHOLDER OR HOLDER: The person in whose name a Certificate is
registered in the Certificate Register, except that solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer, the Securities Administrator, the
Trustee or any Affiliate thereof shall be deemed not to be outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite percentage of Percentage Interests necessary
to effect any such consent has been obtained. The Trustee or the Securities
Administrator may conclusively rely upon a certificate of the Depositor, the
Seller or the Master Servicer in determining whether a Certificate is held by an
Affiliate thereof. All references herein to "Holders" or "Certificateholders"
shall reflect the rights of Certificate Owners as they may indirectly exercise
such rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee or the
Securities Administrator shall be
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required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
Indirect Depository Participant.
CLASS: All Certificates having the same priority and rights to payments
from the Available Distribution Amount, designated as a separate Class under the
heading "REMIC III" in the preliminary statement, as set forth in the forms of
Certificates attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0 and A-6, as
applicable.
CLASS A CERTIFICATES: The Class A-1, Class A-2, Class A-3, Class A-4A,
Class X-0X, Xxxxx X-0X, Xxxxx X-0X and Class A-IO Certificates, collectively,
and designated as such on the face thereof in substantially the forms attached
hereto as Exhibits A-1 or A-2, as applicable.
CLASS A-4 CERTIFICATES: The Class A-4A Certificates and the Class A-4B
Certificates, collectively.
CLASS A-5 CERTIFICATES: The Class A-5A Certificates and the Class A-5B
Certificates, collectively.
CLASS A-5 LOCKOUT DISTRIBUTION AMOUNT: For any Distribution Date shall
be the Class A-5 Lockout Distribution Percentage for that Distribution Date
multiplied by the product of (x) a fraction, the numerator of which is the
Certificate Principal Balance of the Class A-5 Certificates and the denominator
of which is the aggregate Certificate Principal Balance of all of the Senior
Certificates, in each case immediately prior to such Distribution Date and (y)
the Senior Principal Distribution Amount for such Distribution Date.
CLASS A-5 LOCKOUT DISTRIBUTION PERCENTAGE: For each Distribution Date,
the applicable percentage set forth below:
CLASS A-5 LOCKOUT
DISTRIBUTION DATES DISTRIBUTION PERCENTAGE
September 2004 through and including August 2007 0%
September 2007 through and including August 2009 45%
September 2009 through and including August 2010 80%
September 2010 through and including August 2011 100%
September 2011 and thereafter 300%
CLASS M CERTIFICATES: The Class M-1, Class M-2 and Class M-3
Certificates, collectively, and designated as such on the face thereof in
substantially the form attached hereto as EXHIBIT A-3.
CLASS M-1 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that
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Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Senior Principal Distribution Amount
or (ii) on or after the Stepdown Date if a Trigger Event is not in effect for
that Distribution Date, the lesser of:
o the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Senior Principal Distribution Amount; and
o the excess (if any) of (A) the Certificate Principal Balance of the
Class M-1 Certificates immediately prior to that Distribution Date
over (B) the positive difference between (i) the aggregate Principal
Balance of the Loans as of the last day of the related Due Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into
account the payment of the Senior Principal Distribution Amount for
such Distribution Date) and (y) the product of (a) the aggregate
Principal Balance of the Loans as of the last day of the related Due
Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the sum of 5.80% and the Required
Overcollateralization Percentage.
CLASS M-2 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Senior Principal Distribution Amount and the Class M-1 Principal
Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event is
not in effect for that Distribution Date, the lesser of:
o the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Senior Principal Distribution Amount and the
Class M-1 Principal Distribution Amount; and
o the excess (if any) of (A) the Certificate Principal Balance of the
Class M-2 Certificates immediately prior to that Distribution Date
over (B) the positive difference between (i) the aggregate Principal
Balance of the Loans as of the last day of the related Due Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Class A Certificates and the Class M-1
Certificates (after taking into account the payment of the Senior
Principal Distribution Amount and the Class M-1 Principal Distribution
Amount for such Distribution Date) and (y) the product of (a) the
aggregate Principal Balance of the Loans as of the last day of the
related Due Period (after reduction for Realized Losses incurred
during the related Prepayment Period) and (b) the sum of 2.50% and the
Required Overcollateralization Percentage.
CLASS M-3 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Senior Principal Distribution Amount, the Class M-1 Principal Distribution
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Amount and the Class M-2 Principal Distribution Amount or (ii) on or after the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
o the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Senior Principal Distribution Amount, the
Class M-1 Principal Distribution Amount and the Class M-2 Principal
Distribution Amount; and
o the excess (if any) of (A) the Certificate Principal Balance of the
Class M-3 Certificates immediately prior to that Distribution Date
over (B) the positive difference between (i) the aggregate Principal
Balance of the Loans as of the last day of the related Due Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Class A, Class M-1 and Class M-2 Certificates
(after taking into account the payment of the Senior Principal
Distribution Amount, the Class M-1 Principal Distribution Amount and
the Class M-2 Principal Distribution Amount for such Distribution
Date) and (y) the product of (a) the aggregate Principal Balance of
the Loans as of the last day of the related Due Period (after
reduction for Realized Losses incurred during the related Prepayment
Period) and (b) the Required Overcollateralization Percentage.
CLASS R CERTIFICATE: The Certificate designated as "Class R" on the
face thereof in substantially the form attached hereto as EXHIBIT A-6, which has
been designated as the sole class of "residual interests" in REMIC I, REMIC II
and REMIC III, respectively, pursuant to Section 2.4.
CLASS R CERTIFICATEHOLDER: The registered Holder of the Class R
Certificate.
CLEARING AGENCY: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities and Exchange Act of 1934, as amended,
which initially shall be the Depository.
CLOSING DATE: August 30, 2004.
CODE: The Internal Revenue Code of 1986, as amended.
COMPENSATING INTEREST: For any Distribution Date, (i) with respect to
each Servicer, an amount equal to the lesser of (a) the aggregate Prepayment
Interest Shortfalls and Curtailment Shortfalls for the Loans serviced by such
Servicer for such Distribution Date and (b) the Servicing Fee payable to such
Servicer for such Distribution Date and (ii) with respect to the Master
Servicer, the amount described in Section 3.20 for such Distribution Date.
COMPONENT R-1: The uncertificated residual interest in REMIC I.
COMPONENT R-2: The uncertificated residual interest in REMIC II.
COMPONENT R-3: The uncertificated residual interest in REMIC III.
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CORPORATE TRUST OFFICE: The principal corporate trust office of the
Trustee or the Securities Administrator, as the case may be, at which at any
particular time its corporate trust business in connection with this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at (i) with respect to the Trustee, HSBC Bank USA,
National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Securities
Administrator, or (ii) with respect to the Securities Administrator, (A) for
Certificate transfer and surrender purposes, Xxxxx Fargo Bank, N.A., Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: DMSI
2004-5 and (B) for all other purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: DMSI 2004-5, 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.
CORRESPONDING CERTIFICATE: With respect to:
(i) REMIC II Regular Interest LTII-A1, the Class A-1 Certificates,
(ii) REMIC II Regular Interest LTII-A2, the Class A-2 Certificates,
(iii) REMIC II Regular Interest LTII-A3, the Class A-3 Certificates,
(iv) REMIC II Regular Interest LTII-A4A, the Class A-4A Certificates,
(v) REMIC II Regular Interest LTII-A4B, the Class A-4B Certificates,
(vi) REMIC II Regular Interest LTII-A5A, the Class A-5A Certificates,
(vii) REMIC II Regular Interest LTII-A5B, the Class A-5B Certificates,
(viii) REMIC II Regular Interest LTII-M1, the Class M-1 Certificates,
(ix) REMIC II Regular Interest LTII-M2, the Class M-2 Certificates,
(x) REMIC II Regular Interest LTII-M3, the Class M-3 Certificates, and
(xi) REMIC II Regular Interest LTII-P, the Class P Certificates.
CREDIT ENHANCEMENT PERCENTAGE: For any Class of Certificates and any
Distribution Date, the percentage by dividing (x) the sum of (i) the aggregate
Certificate Principal Balances of the Class or Classes of Certificates
subordinate to such Certificate and (ii) the Overcollateralization Amount by (y)
the aggregate Principal Balance of the Loans, calculated after taking into
account the principal portion of Monthly Payments on the Loans due during the
related Due Period to the extent received or advanced and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred on the Loans during the related
Prepayment Period, and distribution of the Principal Distribution Amount to the
Certificates then entitled to distributions of principal on such Distribution
Date.
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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.
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.
CREDIT RISK MANAGEMENT FEE RATE: 0.01% per annum.
CREDIT RISK MANAGER: The Murrayhill Company, a Colorado corporation,
and its successors and assigns.
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.
CURTAILMENT SHORTFALL: With respect to any Distribution Date and any
Curtailment received during the related Prepayment Period, an amount equal to
one month's interest on such Curtailment at the applicable Mortgage Interest
Rate on such Loan, net of the related Servicing Fee Rate.
CUSTODIAL AGREEMENT: The Custodial Agreement dated as of August 1,
2004, among the Trustee, Xxxxx Fargo as Custodian, GMAC, M&T, and GreenPoint as
such agreement may be amended or supplemented from time to time, or any other
custodial agreement entered into after the date hereof with respect to any Loan
subject to this Agreement.
CUSTODIAN: Either Xxxxx Fargo or any other custodian appointed under
any custodial agreement entered into after the date of this Agreement.
CUT-OFF DATE: August 1, 2004; except that with respect to each
Substitute Loan, the Cut-Off Date shall be the date of substitution.
DEFINITIVE CERTIFICATES: As defined in Section 5.3.
DELETED LOAN: A Loan replaced or to be replaced by a Substitute Loan.
DELINQUENCY PERCENTAGE: As of the last day of the related Due Period,
the percentage equivalent of a fraction, the numerator of which is the Principal
Balance of all Loans that, as of the last day of the previous calendar month,
are 60 or more days delinquent, are in foreclosure, have been converted to REO
Properties or have been discharged by reason of bankruptcy, and the denominator
of which is the aggregate Principal Balance of the Loans and REO Properties as
of the last day of the previous calendar month.
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DEPOSITOR: Deutsche Mortgage Securities, Inc., a Delaware corporation,
or its successor-in-interest.
DEPOSITORY: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository, for purposes of
registering those Certificates that are to be Book-Entry Certificates, is CEDE &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York and a
Clearing Agency.
DEPOSITORY AGREEMENT: The Letter of Representations, dated August __,
2004 by and among the Depository, the Depositor and the Trustee.
DEPOSITORY PARTICIPANT: A broker, dealer, bank, other financial
institution or other Person for whom the Depository effects book-entry transfers
and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to each Servicer, the day of the month
set forth as the Determination Date in the related Servicing Agreement.
DISQUALIFIED ORGANIZATION: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code, and, for purposes of Article V herein, any
Person which is not a Permitted Transferee; provided, that a Disqualified
Organization does not include any Pass-Through Entity which owns or holds a
Class R Certificate and if which a Disqualified Organization, directly or
indirectly, may be a stockholder, partner or beneficiary. DISTRIBUTION ACCOUNT:
The trust account or accounts created and maintained by the Securities
Administrator pursuant to Section 3.23 for the benefit of the Certificateholders
and the Certificate Insurer and designated "Xxxxx Fargo Bank, N.A., as
Securities Administrator, in trust for registered holders of Deutsche Mortgage
Securities, Inc. Mortgage Loan Trust, Series 2004-5". Funds in the Distribution
Account shall be held in trust for the Certificateholders and the Certificate
Insurer for the uses and purposes set forth in this Agreement. The Distribution
Account must be an Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: With respect to any Distribution
Date, the Business Day prior to such Distribution Date.
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 September 27, 2004.
DUE DATE: The first day of each calendar month, which is the day on
which the Monthly Payment for each Loan is due, exclusive of any days of grace.
The "related Due Date" for any Distribution Date is the Due Date immediately
preceding such Distribution Date.
DUE PERIOD: With respect to any Distribution Date and the Loans, other
than the Loans serviced by M&T, 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
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month in which such Distribution Date occurs; and with respect to the Loans
serviced by M&T, the calendar month preceding the month in which such
Distribution Date occurs.
ELIGIBLE ACCOUNT: Any account or accounts held and established by the
Securities Administrator in trust for the Certificateholders at any Eligible
Institution.
ELIGIBLE INSTITUTION: An institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of each Rating
Agency, (ii) with respect to the Distribution Account, an unsecured long-term
debt rating of at least one of the two highest unsecured long-term debt ratings
of each Rating Agency, or (iii) the approval of each Rating Agency.
ELIGIBLE INVESTMENTS: Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the following Distribution Date (or, with respect to the
Distribution Account maintained with the Securities Administrator, having a
scheduled maturity on or before the following Distribution Date; provided that,
such Eligible Investments shall be managed by, or an obligation of, the
institution that maintains the Distribution Account if such Eligible Investments
mature on the Distribution Date), regardless of whether any such obligation is
issued by the Depositor, the applicable Servicer, the Trustee, the Master
Servicer, the Securities Administrator or any of their respective Affiliates and
having at the time of purchase, or at such other time as may be specified, the
required ratings, if any, provided for in this definition:
(a) direct obligations of, or guaranteed as to full and timely payment
of principal and interest by, the United States or any agency or instrumentality
thereof, provided, that such obligations are backed by the full faith and credit
of the United States of America;
(b) direct obligations of, or guaranteed as to timely payment of
principal and interest by, Xxxxxxx Mac, Xxxxxx Xxx or the Federal Farm Credit
System, provided, that any such obligation, at the time of purchase or
contractual commitment providing for the purchase thereof, is qualified by each
Rating Agency as an investment of funds backing securities rated "AAA" in the
case of S&P and Xxxxx'x (the initial rating of the Class A Certificates);
(c) demand and time deposits in or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company, savings and loan
association or savings bank, provided, that the short-term deposit ratings
and/or long-term unsecured debt obligations of such depository institution or
trust company (or in the case of the principal depository institutions in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company) have, in the case of commercial paper, the
highest rating available for such securities by each Rating Agency and, in the
case of long-term unsecured debt obligations, one of the two highest ratings
available for such securities by each Rating Agency, or in each case such lower
rating as will not result in the downgrading or withdrawal of the rating or
ratings then assigned to any Class of Certificates by any Rating Agency but in
no event less than the initial rating of the Senior Certificates;
(d) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving one of the two highest
long-term debt ratings
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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;
(e) commercial or finance company paper (including both
non-interest-bearing discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one year after the date
of issuance thereof) that is rated by each Rating Agency in its highest
short-term unsecured rating category at the time of such investment or
contractual commitment providing for such investment, and is issued by a
corporation the outstanding senior long-term debt obligations of which are then
rated by each Rating Agency in one of its two highest long-term unsecured rating
categories, or such lower rating as will not result in the downgrading or
withdrawal of the rating or ratings then assigned to any Class of Certificates
by any Rating Agency but in no event less than the initial rating of the Senior
Certificates;
(f) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation rated in one of the two highest rating levels
available to such issuers by each Rating Agency at the time of such investment,
provided, that any such agreement must by its terms provide that it is
terminable by the purchaser without penalty in the event any such rating is at
any time lower than such level;
(g) repurchase obligations with respect to any security described in
clause (a) or (b) above entered into with a depository institution or trust
company (acting as principal) meeting the rating standards described in (c)
above;
(h) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of America
or any State thereof and rated by each Rating Agency in one of its two highest
long-term unsecured rating categories at the time of such investment or
contractual commitment providing for such investment; provided, however, that
securities issued by any such corporation will not be Eligible Investments to
the extent that investment therein would cause the outstanding principal amount
of securities issued by such corporation that are then held as part of the
Distribution Account to exceed 20% of the aggregate principal amount of all
Eligible Investments then held in the Distribution Account;
(i) units of taxable money market funds (including those for which the
Trustee, the Securities Administrator, the Master Servicer or any affiliate
thereof receives compensation with respect to such investment) which funds have
been rated by each Rating Agency rating such fund in its highest rating category
or which have been designated in writing by each Rating Agency as Eligible
Investments with respect to this definition;
(j) if previously confirmed in writing to the Trustee and the
Securities Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to each Rating
Agency as a permitted investment of funds backing securities having ratings
equivalent to the initial rating of the Class A Certificates; and
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(k) such other obligations as are acceptable as Eligible Investments to
each Rating Agency;
provided, however, that such instrument continues to qualify as a "cash flow
investment" pursuant to Code Section 860G(a)(6) and that no instrument or
security shall be an Eligible Investment if (i) such instrument or security
evidences a right to receive only interest payments or (ii) the right to receive
principal and interest payments derived from the underlying investment provides
a yield to maturity in excess of 120% of the yield to maturity at par of such
underlying investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXTRA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date, the lesser of (i) the Net Monthly Excess Cashflow for such Distribution
Date and (ii) the Overcollateralization Increase Amount for such Distribution
Date.
XXXXXX XXX: Xxxxxx Xxx, formerly known as the Federal National Mortgage
Association, or any successor thereto.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
XXXXXXX MAC: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
GMAC: GMAC Mortgage Corporation, or any successor thereto.
GMAC SERVICING AGREEMENT: The Servicing Agreement, dated as of April 1,
2004 between the Seller and GMAC, as modified pursuant to the related Assignment
Agreement.
GREENPOINT: GreenPoint Mortgage Funding, Inc. or any successor thereto.
GREENPOINT SERVICING AGREEMENT: The Master Mortgage Loan Purchase and
Servicing Agreement, dated as of February 1, 2004, between the Seller and
GreenPoint, as amended by Amendment Number One, dated as of April 1, 2004,
between the Seller and GreenPoint (as modified pursuant to the related
Assignment Agreement).
GUARANTEED DISTRIBUTION: With respect to any Insured Certificates and
any Distribution Date, as defined in the Policy.
GUARANTEED DISTRIBUTIONS SHORTFALL: With respect to (i) any
Distribution Date, the amount, if any, by which the Interest Remittance Amount
is less than the Senior Interest Distribution Amount for the Insured
Certificates for such Distribution Date and (ii) on the Final Distribution Date
(as defined in the Policy), the Certificate Principal Balance of the Insured
Certificates to the extent unpaid on such date (after giving effect to all
distributions made on the Insured Certificates on such Final Distribution Date
other than distributions of any amounts paid under the Policy).
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INDEPENDENT: When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, each Servicer, the
Master Servicer, the Securities Administrator and the Certificate Insurer, (ii)
does not have any direct financial interest or any material indirect financial
interest in the Depositor, any Servicer, the Master Servicer, the Securities
Administrator or the Certificate Insurer or any Affiliate of any such party and
(iii) is not connected with the Depositor, any Servicer, the Master Servicer,
the Securities Administrator or the Certificate Insurer as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
INDIRECT DEPOSITORY PARTICIPANTS: Entities such as banks, brokers,
dealers or trust companies that clear through or maintain a custodial
relationship with a Depository Participant, either directly or indirectly.
INSURANCE AGREEMENT: The Insurance and Indemnity Agreement, dated as of
August 30, 2004, among the Certificate Insurer, the Trustee, the Seller and the
Depositor.
INSURANCE PROCEEDS: Proceeds of any title policy, hazard policy,
mortgage guaranty 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.
INSURED CERTIFICATES: The Class A-4A, Class A-5A, and Class A-5B
Certificates.
INTEREST ACCRUAL PERIOD: With respect to the Certificates, other than
the Class A-1, Class P and Class R Certificates, and each Distribution Date, the
calendar month preceding the month in which that Distribution Date occurs. The
Interest Accrual Period for the Class A-1 Certificates shall be (a) as to the
Distribution Date in September 2004, the period commencing on the Closing Date
and ending on the day preceding the Distribution Date in September 2004, and (b)
as to any Distribution Date after the Distribution Date in September 2004, 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, other than the Class A-1,
Class P and Class R Certificates, will be calculated based on a 360-day year
consisting of twelve 30-day months. Interest on the Class A-1 Certificates will
be calculated based on a 360-day year and the actual number of days elapsed in
the related Interest Accrual Period.
INTEREST CARRY FORWARD AMOUNT: With respect to any Distribution Date
and any Class of Class A Certificates or Class M Certificates, the sum of (i)
the amount, if any, by which (a) the Interest Distribution Amount for such Class
of Certificates as of the immediately preceding Distribution Date exceeded (b)
the actual amount distributed on such Class of Certificates in respect of
interest on such immediately preceding Distribution Date and (ii) the amount of
any Interest Carry Forward Amount for such Class of Certificates remaining
unpaid from the previous Distribution Date, plus accrued interest on such sum
calculated at the related Pass-Through Rate for the most recently ended Interest
Accrual Period.
INTEREST DISTRIBUTION AMOUNT: On any Distribution Date, for any Class
of Certificates (other than the Class P Certificates and the Class R
Certificates), the amount of interest accrued
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during the related Interest Accrual Period on the Certificate Principal Balance
or Notional Amount of that Class which shall be an amount, not less than zero,
equal to (a) the product of (1) 1/12th of the Pass-Through Rate for such Class
and (2) the 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) Uncompensated Interest Shortfalls allocated to such Class
pursuant to Section 1.2 and with respect to the Class M Certificates and Class
CE Certificates, the interest portion of Realized Losses allocated to such Class
pursuant to Section 1.2.
INTEREST REMITTANCE AMOUNT: With respect to any Distribution Date is
that portion of the Available Distribution Amount attributable to interest
received or advanced on the Loans.
INVESTMENT WITHDRAWAL DISTRIBUTION DATE: As defined in Section 3.23(c).
LATE PAYMENT RATE: As defined in the Insurance Agreement.
LAST SCHEDULED DISTRIBUTION DATE: The Distribution Date in July 2034.
LIBOR: For the initial Interest Accrual Period, on the Closing Date,
the Securities Administrator will determine the 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 Class A-1 Certificates, and
for any Interest Accrual Period thereafter, 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:
(i) 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.
(ii) 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.
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The establishment of LIBOR and each Pass-Through Rate for the Class A-1
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Class A-1
Certificate and the Securities Administrator.
LIBOR BUSINESS DAY: Any day on which dealings in United States dollars
are transacted in the London interbank market.
LIBOR DETERMINATION DATE: The second LIBOR Business Day before the
first day of the related Interest Accrual Period.
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.
LIQUIDATION PROCEEDS: The amount (other than Insurance Proceeds or
amounts received in respect of the rental of any REO Property prior to REO
Disposition) received by the applicable Servicer pursuant to the related
Servicing Agreement or the Master Servicer in connection with (i) the taking of
all or a part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation, (ii) the liquidation of a defaulted Loan through a trustee's
sale, foreclosure sale or otherwise, or (iii) the repurchase, substitution or
sale of a Loan or an REO Property pursuant to or as contemplated by Section 2.3
or Section 9.1.
LOAN DOCUMENTS: The documents evidencing or relating to each Loan
delivered to the Custodian under the Custodial Agreement on behalf of the
Trustee.
LOAN SCHEDULE: The schedule, as amended from time to time, of Loans,
attached hereto as Schedule One, which shall set forth as to each Loan the
following, among other things:
(i) the loan number of the Loan and name of the related Mortgagor;
(ii) the street address of the Mortgaged Property including city, state and
zip code;
(iii) the Mortgage Interest Rate as of the Cut-Off Date;
(iv) the original term and maturity date of the related Mortgage Note;
(v) the original Principal Balance;
(vi) the first payment date;
(vii) the Monthly Payment in effect as of the Cut-Off Date;
(viii) the date of the last paid installment of interest;
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(ix) the unpaid Principal Balance as of the close of business on the
Cut-Off Date;
(x) the Loan-to-Value ratio at origination;
(xi) the type of property and the Original Value of the Mortgaged Property;
(xii) whether a primary mortgage insurance policy is in effect as of the
Cut-Off Date;
(xiii) the nature of occupancy at origination; and
(xiv) a code indicating whether the Loan is subject to Prepayment Charge,
the term of such Prepayment Charge and the amount of such Prepayment
Charge.
LOANS: The Mortgages and the related Mortgage Notes, each transferred
and assigned to the Trustee pursuant to the provisions hereof as from time to
time are held as part of the Trust Fund, as so identified in the Loan Schedule.
Each of the Loans is referred to individually in this Agreement as a "Loan".
LOAN-TO-VALUE RATIO: The original principal amount of a Loan divided by
the Original Value; however, references to "current Loan-to-Value Ratio" shall
mean the then current Principal Balance of a Loan divided by the Original Value.
M&T: M&T Mortgage Corporation, a New York banking corporation, or any
successor thereto.
M&T SERVICING AGREEMENT: The Interim Servicing and Servicing Rights
Purchase Agreement, dated as of March 1, 2004 between the Seller and M&T (as
modified pursuant to the related Assignment Agreement).
MARKER RATE: With respect to the Class CE Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC II Pass-Through Rate for each of REMIC II Regular
Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest
LTII-A3, REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B,
REMIC II Regular Interest LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II
Regular Interest LTII-M1, Regular Interest LTII-M2, Regular Interest LTII-M3 and
Regular Interest LTII-ZZ, with the rate on each such REMIC II Regular Interest
(other than REMIC II Regular Interest LTII-ZZ) subject to a cap equal to
Pass-Through Rate for the Corresponding Certificate, and with the rate on REMIC
II Regular Interest LTII-ZZ subject to a cap of zero for the purpose of this
calculation; provided however, each such cap for REMIC II Regular Interest
LTII-A1 shall be multiplied by a fraction the numerator of which is the actual
number of days in the related Interest Accrual Period and the denominator of
which is 30.
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MASTER SERVICER: As of the Closing Date, Xxxxx Fargo Bank, N.A. 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.
MASTER SERVICER EVENT OF DEFAULT: One or more of the events described
in Section 7.1 hereof.
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.
MASTER SERVICING FEE RATE: 0.005% per annum.
MEZZANINE CERTIFICATES: The Class M-1, Class M-2 and Class M-3
Certificates.
MONTHLY PAYMENT: The scheduled payment of principal and interest on a
Loan which is due on any Due Date for such Loan after giving effect to any
reduction in the amount of interest collectible from any Mortgagor pursuant to
the Relief Act.
MOODY'S: Xxxxx'x Investors Service, Inc. or its successor in interest.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
MORTGAGE FILE: The Loan Documents pertaining to a particular Loan.
MORTGAGE INTEREST RATE: For any Loan, the per annum rate at which
interest accrues on such Loan pursuant to the terms of the related Mortgage Note
without regard to any reduction thereof as a result of the Relief Act.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of August 30, 2004, between the Depositor and the Seller.
MORTGAGE NOTE: The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Loan.
MORTGAGE POOL: All of the Loans.
MORTGAGED PROPERTY: With respect to any Loan, the real property,
together with improvements thereto, securing the indebtedness of the Mortgagor
under the related Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NET MONTHLY EXCESS CASHFLOW: With respect to any Distribution Date, the
sum of (i) any Overcollateralization Reduction Amount and (ii) the excess of (x)
the Available Distribution Amount over (y) the sum for such Distribution Date of
(A) the aggregate Senior Interest Distribution Amounts payable to the holders of
the Senior Certificates, (B) the aggregate Interest
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Distribution Amounts payable to the holders of the Class M Certificates, (C) the
Principal Remittance Amount and (D) the Certificate Insurer Premium.
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 the premium payable in connection with
any lender paid primary mortgage insurance policy is paid, if applicable.
NET WAC PASS-THROUGH RATE: With respect to the Offered Certificates
(other than the Class A-IO Certificates), (a) for the September 2004
Distribution Date through the August 2006 Distribution Date, a per annum rate
equal to (1) the weighted average of the Net Mortgage Rates of the Loans as of
the first day of the month preceding the month in which such Distribution Date
occurs minus (2) the Pass-Through Rate for the Class A-IO Certificates for such
Distribution Date multiplied by a fraction, the numerator of which is the
Notional Amount of the Class A-IO Certificates immediately prior to such
Distribution Date, and the denominator of which is the aggregate Principal
Balance of the Loans before giving effect to distributions on such Distribution
Date, minus (3) with respect to the Class A-4A, Class A-5A and Class A-5B
Certificates, the Certificate Insurer Premium Rate payable to the Certificate
Insurer for providing the Policy, multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-4A, Class
A-5A and Class A-5B Certificates and the denominator of which is the aggregate
Principal Balance of the Loans and (b) for each Distribution Date thereafter,
the weighted average of the Net Mortgage Rates of the Loans as of the first day
of the month preceding the month in which such Distribution Date occurs minus,
with respect to the Class A-4A, Class A-5A and Class A-5 Certificates, the
Certificate Insurer Premium Rate payable to the Certificate Insurer for
providing the Policy, multiplied by a fraction, the numerator of which is the
aggregate Certificate Principal Balance of the Class A-4A, Class A-5A and Class
A-5B Certificates and the denominator of which is the aggregate Principal
Balance of the Loans. The Net WAC Pass-Through Rate with respect to the Class
A-1 Certificates shall be subject to adjustment based on the actual number of
days elapsed in the related Interest Accrual Period. For United States federal
income tax purposes, the Net WAC Pass-Through Rate, with respect to any
Distribution Date, shall be expressed as the weighted average of the
Uncertificated REMIC II Pass-Through Rates on each REMIC II Regular Interest
(other than REMIC II Regular Interest LTII-IO-A and REMIC II Regular Interest
LTII-IO-B) weighted on the basis of the Uncertificated Principal Balance of the
REMIC II Regular Interests. With respect to the Class A-4A, Class A-5A and Class
A-5B Certificates, the Net WAC Rate shall be reduced by the Certificate Insurer
Premium Rate multiplied by a fraction, the numerator of which is the aggregate
Certificate Principal Balance of the Class A-4A, Class A-5A and Class A-5B
Certificates and the denominator of which is the aggregate Principal Balance of
the Loans.
NET WAC RATE CARRYOVER AMOUNT: With respect to any Class A Certificate
(other than the Class A-IO Certificates) or Class M Certificate and any
Distribution Date on which the pass-through rate is limited to the related Net
WAC Pass-Through Rate, an amount equal to the sum of (i) the excess of (x) the
amount of interest the Class A Certificate or Class M Certificate would have
been entitled to receive on such Distribution Date if the Net WAC Pass-Through
Rate had not been applicable to such Certificates on such Distribution Date over
(y) the amount
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of interest accrued on such Distribution Date at the related Net WAC
Pass-Through Rate plus (ii) the related Net WAC Rate Carryover Amount for the
previous Distribution Date not previously distributed together with interest
thereon at a rate equal to the related Pass-Through Rate for such Class of
Certificates for the most recently ended Interest Accrual Period determined
without taking into account the related Net WAC Pass-Through Rate.
NONRECOVERABLE ADVANCE: With respect to any Loan, any Advance or
Servicing Advance which the related Servicer shall have determined to be a
Nonrecoverable Advance as defined in and pursuant to the related Servicing
Agreement, or which the Master Servicer shall have determined to be
nonrecoverable pursuant to Section 4.4, respectively, and which was or is
proposed to be made by such Servicer or the Master Servicer.
NON-U.S. PERSON: A Person that is not a U.S. Person.
NOTIONAL AMOUNT: With respect to the Class A-IO Certificates will be as
follows: the lesser of (x) from and including the 1st Distribution Date through
and including the 6th Distribution Date, $60,771,000; from and including the 7th
Distribution Date through and including the 12th Distribution Date, $48,617,000;
from and including the 13th Distribution Date through and including the 18th
Distribution Date, $36,462,000; from and including the 18th Distribution Date
through and including the 24th Distribution Date, $24,309,000; thereafter $0 and
(y) the then aggregate principal balance of the Loans (prior to giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period). For United States federal income tax purposes,
the Class A-IO Certificates will not have a Notional Amount, but will be
entitled to 100% of amounts distributed on REMIC II Regular Interest LTII-IO-A
and REMIC II Regular Interest LTII-IO-B. With respect to the Class CE
Certificates, immediately prior to any Distribution Date, the aggregate of the
Uncertificated Principal Balances of the REMIC II Regular Interests (other than
REMIC II Regular Interest LTII-P, REMIC II Regular Interest LTII-IO-A and REMIC
II Regular Interest LTII-IO-B).
OFFICER'S CERTIFICATE: With respect to any Person, a certificate signed
by the Chairman of the Board, the President or a Vice-President, however
denominated, of such Person (or, in the case of a Person which is not a
corporation, signed by the person or persons having like responsibilities), and
delivered to the Trustee.
OPINION OF COUNSEL: A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, a Servicer, the Securities
Administrator or the Master Servicer acceptable to the Trustee, except that any
opinion of counsel relating to (a) the qualification of any REMIC as a REMIC or
(b) compliance with the REMIC Provisions must be an opinion of Independent
counsel.
ORIGINAL VALUE: With respect to any Loan other than a Loan originated
for the purpose of refinancing an existing mortgage debt, the lesser of (a) the
Appraised Value (if any) of the Mortgaged Property at the time the Loan was
originated or (b) the purchase price paid for the Mortgaged Property by the
Mortgagor. With respect to a Loan originated for the purpose of refinancing
existing mortgage debt, the Original Value shall be equal to the lesser of (a)
the
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Appraised Value of the Mortgaged Property at the time the Loan was originated or
(b) the appraised value at the time the refinanced mortgage debt was incurred.
OTS: The Office of Thrift Supervision, or any successor thereto.
OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution Date
following the Closing Date, the excess, if any, of (a) the aggregate Principal
Balances of the Loans and REO Properties immediately following such Distribution
Date over (b) the sum of the aggregate Certificate Principal Balances of the
Senior Certificates, the Class M Certificates and the Class P Certificates as of
such Distribution Date (after taking into account all payments of principal on
such Distribution Date).
OVERCOLLATERALIZATION INCREASE AMOUNT: With respect to any Distribution
Date, the amount, if any, by which the Required Overcollateralization Amount
exceeds the Overcollateralization Amount (calculated for this purpose only after
assuming that 100% of the Principal Remittance Amount on such Distribution Date
has been distributed).
OVERCOLLATERALIZATION REDUCTION AMOUNT: With respect to any
Distribution Date, the lesser of (i) the Principal Remittance Amount and (ii)
the excess, if any, of (a) the Overcollateralization Amount for such
Distribution Date (calculated for this purpose only after assuming that 100% of
the Principal Remittance Amount on such Distribution Date has been distributed)
over (b) the Required Overcollateralization Amount; provided however that on any
Distribution Date on which a Trigger Event is in effect, the
Overcollateralization Reduction Amount shall equal zero.
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.
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.
PASS-THROUGH RATE: With respect to the Class A Certificates (other than
the Class A-IO Certificates) and Class M Certificates and any Distribution Date,
the lesser of (i) the interest rate listed in the Preliminary Statement hereto
and (ii) the Net WAC Pass-Through Rate; provided, that with respect to the Class
A-4, Class A-5 and Class M Certificates, the interest rate listed in the
Preliminary Statement hereto shall be increased by 0.50% per annum on the
Distribution Date following the first possible optional termination date
pursuant to Section 9.1(b). With respect to the Class A-IO Certificates (i) for
the first twelve Distribution Dates, 4.50% per annum, (ii) for the next twelve
Distribution Dates, 3.50% per annum and (iii) for any Distribution Date
thereafter, 0.00%. For United States federal income tax purposes, however, the
Class A-IO Certificates will not have a Class A-IO Pass-Through Rate, and the
Interest Distribution Amount for the Class A-IO Certificates and any
Distribution Date will be deemed to be 100% of the amount distributed on REMIC
II Regular Interest LTII-IO-A and REMIC II Regular Interest LTII-IO-B for such
Distribution Date.
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With respect to the Class CE Certificates, on any Distribution Date, a
per annum rate equal to the percentage equivalent of a fraction, the numerator
of which is (x) the sum of the amounts calculated pursuant to clauses (A)
through (M) below, and the denominator of which is (y) the aggregate of the
Uncertificated Principal Balances of the REMIC II Regular Interests (other than
REMIC II Regular Interest LTII-P). For purposes of calculating the Pass-Through
Rate for the Class CE Certificates, the numerator is equal to the sum of the
following components:
(A) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-AA minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-AA;
(B) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-A1;
(C) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-A2;
(D) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-A3;
(E) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A4A minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-A4A;
(F) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A4B minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-A4B;
(G) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A5A minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-A5A;
(H) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A5B minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-A5B;
(I) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-M1;
(J) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-M2;
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(K) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-M3;
(L) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-ZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-ZZ; and
(M) 100% of the interest distributable on REMIC II Regular Interest
LTII-P.
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.
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
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 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.
PERMITTED TRANSFEREE: With respect to the holding or ownership of any
Residual Certificate, any Person other than (i) the United States, a State or
any political subdivision thereof, or any agency or instrumentality of any of
the foregoing, (ii) a foreign government or International Organization, or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from the taxes imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Code Section 1381(a)(2)(C), (v) any electing large partnership under Section 775
of the Code, (vi) any Person from whom the Trustee or the Securities
Administrator has not received an affidavit to the effect that it is not a
"disqualified organization" within the meaning of Section 860E(e)(5) of the
Code, and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any REMIC created hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding. The terms
"United States," "State" and "International Organization" shall have the
meanings set forth in Code Section 7701 or successor provisions. A corporation
shall not be treated as an instrumentality of the United States or of any State
or political subdivision thereof if all of its activities are subject to tax,
and, with the exception of the Xxxxxxx Mac, a majority of its board of directors
is not selected by such governmental unit.
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PERSON: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PLAN: As defined in Section 5.3.
POLICY: The Certificate Guaranty Insurance Policy No. 04030027 issued
by the Certificate Insurer in respect of the Insured Certificates, including any
endorsements thereto.
POLICY PAYMENTS ACCOUNT: The account created and maintained by the
Securities Administrator pursuant to Section 12.4 hereof, which shall be
entitled "Xxxxx Fargo Bank, N.A, as Securities Administrator, in trust for the
registered holders of Deutsche Bank Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2004-5, Class A-4A, Class A-5A and Class A-5B
Certificates." The Policy Payments Account must be an Eligible Account.
PREPAID MONTHLY PAYMENT: Any Monthly Payment received prior to its
scheduled Due Date, which is intended to be applied to a Loan on its scheduled
Due Date and held in the related Protected Account until the related Servicer
Remittance Date following its scheduled Due Date.
PREPAYMENT 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.
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:
(i) the Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the date on which the first Monthly Payment was due on the related
Mortgaged Loan;
(iv) the term of the related Prepayment Charge;
(v) the original Principal Balance of the related Loan; and
(vi) the Principal Balance of the related Loan as of the Cut-off Date.
PREPAYMENT INTEREST SHORTFALL: For any Distribution Date and any Loan
on which a Payoff was made by a Mortgagor during the related Prepayment Period,
an amount equal to one month's interest at the applicable Net Mortgage Rate on
such Loan less the amount of interest actually paid by the Mortgagor with
respect to such Payoff.
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PREPAYMENT PERIOD: For any Distribution Date and the Loans serviced by
M&T, the period beginning 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 with respect to Payoffs, and the calendar
month immediately preceding the month in which such Distribution Date occurs
with respect to Curtailments. For any Distribution Date and the Loans serviced
by GreenPoint and GMAC, the calendar month immediately preceding the month in
which such Distribution Date occurs.
PRINCIPAL BALANCE: For any Loan and at the time of any determination,
the principal balance of such Loan remaining to be paid at the close of business
on the Cut-Off Date, after deduction of all principal payments due on or before
the Cut-Off Date whether or not received, reduced by the principal portion of
all amounts received with respect to such Loan after the Cut-Off Date and
distributed or to be distributed to Certificateholders through the Distribution
Date in the month of such determination. In the case of a Substitute Loan,
"Principal Balance" shall mean, at the time of any determination, the principal
balance of such Substitute Loan on the related Cut-Off Date, reduced by the
principal portion of all amounts received with respect to such Loan after the
Cut-Off Date 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.
PRINCIPAL DISTRIBUTION AMOUNT: On any Distribution Date, the sum of (i)
the principal portion of all scheduled Monthly Payments on the Loans due during
the related Due Period, whether or not received on or prior to the related
Determination Date, (ii) the principal portion of repurchase proceeds received
with respect to any Loan which was repurchased by the Depositor pursuant to a
Purchase Obligation or as permitted by this Agreement (or, in the case of a
substitution, certain amounts representing a principal adjustment) during the
related Prepayment Period and (iii) the principal portion of all other
unscheduled collections which were received with respect to any Loan during the
applicable Prepayment Period, including Liquidation Proceeds, Insurance
Proceeds, Subsequent Recoveries and all Curtailments and Payoffs, to the extent
applied as recoveries of principal on the Loans; minus (iv) the amount of any
Overcollateralization Reduction Amount for such Distribution Date and any
amounts payable or reimbursable therefrom to the Servicers, the Trustee, the
Custodian, the Master Servicer or the Securities Administrator prior to
distributions being made on the Certificates. In no event will the Principal
Distribution Amount with respect to any Distribution Date be (x) less than zero
or (y) greater than the outstanding Certificate Principal Balance of the Class
A, the Class M and the Class P Certificates.
PRINCIPAL PREPAYMENT: Any payment of principal on a Loan which
constitutes a Payoff or a Curtailment.
PRINCIPAL REMITTANCE AMOUNT: With respect to any Distribution Date, the
sum of the amounts described in clauses (i) through (iii) of the definition of
Principal Distribution Amount net of any amounts payable or reimbursable
therefrom to the Trustee, the Custodian, the Securities Administrator, the
Master Servicer or the Servicers pursuant to this Agreement, the Custodial
Agreement or the applicable Servicing Agreement.
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PROTECTED ACCOUNT: An account or accounts established and maintained
for the benefit of the Certificateholders by each Servicer with respect to the
related Loans and with respect to REO Property pursuant to the applicable
Servicing Agreement.
PURCHASE OBLIGATION: An obligation of the Depositor or the Seller to
repurchase Loans under the circumstances and in the manner provided in Section
2.3.
PURCHASE PRICE: With respect to any Loan to be purchased pursuant to a
Purchase Obligation, or any Loan to be purchased or repurchased relating to an
REO Property, and as confirmed by an Officers' Certificate from the Master
Servicer to the Trustee and the Securities 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 Section 9.1, 100%
of the fair market value of such REO Property, such valuation to be conducted by
an appraiser mutually agreed upon between the Terminator and the Securities
Administrator, in their reasonable discretion), (ii) in the case of (x) a Loan,
accrued interest on such Principal Balance at the applicable Net Mortgage Rate
from the date interest was last paid by the related Mortgagor or the date an
Advance by the applicable Servicer or the Master Servicer, which payment or
Advance had as of the date of purchase been distributed pursuant to Section 4.1,
through the end of the calendar month in which the purchase is to be effected
and (y) an REO Property, the sum of (1) accrued interest on such Principal
Balance at the applicable Net Mortgage Rate from the date interest was last paid
by the related Mortgagor or the date an Advance by the applicable Servicer or
the Master Servicer through the end of the calendar month immediately preceding
the calendar month in which such REO Property was acquired, plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of all
net rental income, Insurance Proceeds, Liquidation Proceeds and Advances that as
of the date of purchase had been distributed as or to cover REO Imputed Interest
in accordance with the applicable Servicing Agreement, (iii) any unreimbursed
Servicing Advances and Advances (including Nonrecoverable Advances) and any
unpaid Servicing Fees or Master Servicing Fees allocable to such Loan or REO
Property and (iv) in the case of a Loan required to be purchased pursuant to
Section 2.3, expenses reasonably incurred or to be incurred by the Master
Servicer, the Servicers, the Trustee or the Securities Administrator in respect
of the breach or defect giving rise to a Purchase Obligation 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.
RATING AGENCY: Initially, each of S&P and Xxxxx'x; thereafter, each
nationally recognized statistical rating organization that has rated the
Certificates at the request of the Depositor, or their respective successors in
interest.
RATINGS: As of any date of determination, the ratings, if any, of the
Certificates as assigned by each Rating Agency.
REALIZED LOSS: For any Distribution Date and any Loan which became a
Liquidated Loan during the related Prepayment Period, the sum of (i) the
Principal Balance of such Loan remaining outstanding (after all recoveries of
principal have been applied thereto) and the principal portion of Advances which
have been reimbursed with respect to such Loan, and (ii)
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the accrued interest on such Loan remaining unpaid and the interest portion of
Advances which have been reimbursed from Liquidation Proceeds with respect to
such Loan. The amounts described in clause (i) shall be the principal portion of
Realized Losses and the amounts described in clause (ii) shall be the interest
portion of Realized Losses. For any Distribution Date and any Loan which is not
a Liquidated Loan, the amount of any Bankruptcy Loss incurred with respect to
such Loan as of the related Due Date shall be treated as a Realized Loss.
RECORD DATE: With respect to each Distribution Date and the
Certificates, other than Class A-1 Certificates, the last Business Day of the
month immediately preceding the month of the related Distribution Date; with
respect to the Class A-1 Certificates, the Business Day preceding the related
Distribution Date.
REGULAR INTEREST CERTIFICATES: The Certificates, other than the Class R
Certificate.
REIMBURSEMENT AMOUNT: As to any Distribution Date, the sum of (x) (i)
all claims paid by the Certificate Insurer under the Policy, for which the
Certificate Insurer has not been reimbursed prior to such Distribution Date
pursuant to Section 4.1, plus (ii) interest accrued on such unreimbursed claims
(not previously repaid), calculated at the Late Payment Rate from the date the
claim was paid by the Certificate Insurer, and (y) without duplication (i) any
amounts then due and owing to the Certificate Insurer under the Insurance
Agreement, as certified to the Trustee and the Securities Administrator by the
Certificate Insurer plus (ii) interest on such amounts at the Late Payment Rate.
RELIEF ACT: The Servicemembers Civil Relief Act, or similar state laws.
RELIEF ACT INTEREST SHORTFALL: With respect to any Distribution Date
and a Loan, the reduction in the amount of interest collectible on such Loan for
the most recently ended calendar month immediately preceding such Distribution
Date as a result of the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
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 the Loans (exclusive of any Prepayment Charges and late payment fees
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 related Distribution Account in respect of a Loan 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; and (v) the
Depositor's interest in respect of the representations and warranties made by
the Seller in the Mortgage Loan Purchase Agreement as assigned to the Trustee
pursuant to Section 2.1 hereof. The assets of REMIC I shall specifically exclude
the Cap Contract and the Reserve Fund.
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REMIC I REGULAR INTEREST LTI-1: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-1 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, 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.
REMIC I REGULAR INTEREST LTI-IO-1: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-1 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, 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.
REMIC I REGULAR INTEREST LTI-IO-2: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-2 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, 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.
REMIC I REGULAR INTEREST LTI-IO-3: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-3 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, 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.
REMIC I REGULAR INTEREST LTI-IO-4: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-4 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, 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.
REMIC I REGULAR INTEREST LTI-P: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-P 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, 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.
REMIC I REGULAR INTERESTS: REMIC I Regular Interest LTI-1, REMIC I
Regular Interest LTI-IO-1, REMIC I Regular Interest LTI-IO-2, REMIC I Regular
Interest LTI-IO-3, REMIC I Regular Interest LTI-IO-4 and REMIC I Regular
Interest LTI-P.
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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.
REMIC II INTEREST LOSS ALLOCATION AMOUNT: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Scheduled Principal Balance of the Loans and REO Properties then outstanding and
(ii) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest
II-LTAA minus the Marker Rate, divided by (b) 12.
REMIC II OVERCOLLATERALIZATION AMOUNT: With respect to any date of
determination, (i) 1% of the aggregate Uncertificated Principal Balances of the
REMIC II Regular Interests minus (ii) the aggregate of the Uncertificated
Principal Balances of REMIC II Regular Interest LTII-A1, REMIC II Regular
Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest
LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular Interest
LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II Regular Interest LTII-M1,
REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC
Regular Interest LTII-P, in each case as of such date of determination.
REMIC II OVERCOLLATERALIZATION TARGET AMOUNT: 1% of the Required
Overcollateralization Amount.
REMIC II PRINCIPAL LOSS ALLOCATION AMOUNT: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Scheduled Principal Balance of the Loans and REO Properties then outstanding and
(ii) 1 minus a fraction, the numerator of which is two times the aggregate of
the Uncertificated Principal Balances of REMIC II Regular Interest LTII-A1,
REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II
Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular
Interest LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II Regular Interest
LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3
and REMIC II Regular Interest LTII-ZZ.
REMIC II REGULAR INTERESTS: REMIC II Regular Interest LTII-AA, REMIC II
Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular
Interest LTII-A3, REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest
LTII-A4B, REMIC II Regular Interest LTII-A5A, REMIC II Regular Interest
LTII-A5B, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2,
REMIC II Regular Interest LTII-M3, REMIC II Regular Interest LTII-IO-A, REMIC II
Regular Interest LTII-IO-B, REMIC II Regular Interest LTII-ZZ and REMIC II
Regular Interest LTII-X.
XXXXX XX REGULAR INTEREST LTII-AA: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-AA shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II REGULAR INTEREST LTII-A1: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A1 shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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REMIC II REGULAR INTEREST LTII-A2: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A2 shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II REGULAR INTEREST LTII-A3: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A3 shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II REGULAR INTEREST LTII-A4A: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A4A
shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-A4B: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A4B
shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-A5A: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A5A
shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-A5B: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in
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REMIC II. REMIC II Regular Interest LTII-A5B shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IO-A: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest
LTII-IO-A shall accrue interest as provided herein and shall not be entitled to
distributions of principal.
REMIC II REGULAR INTEREST LTII-IO-B: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest
LTII-IO-B shall accrue interest as provided herein and shall not be entitled to
distributions of principal.
REMIC II REGULAR INTEREST LTII-M1: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-M1 shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II REGULAR INTEREST LTII-M2: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-M2 shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II REGULAR INTEREST LTII-M3: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-M3 shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II REGULAR INTEREST LTII-P: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-P shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II REGULAR INTEREST LTII-ZZ: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-ZZ shall accrue
interest at the related Uncertificated
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REMIC II Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-ZZ MAXIMUM INTEREST DEFERRAL AMOUNT:
With respect to any Distribution Date, the excess of (i) accrued interest at the
Uncertificated REMIC II Pass-Through Rate applicable to REMIC II Regular
Interest LTII-ZZ for such Distribution Date on a balance equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-ZZ minus the
REMIC II Overcollateralization Amount, in each case for such Distribution Date,
over (ii) Uncertificated Accrued Interest on REMIC II Regular Interest LTII-A1,
REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II
Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular
Interest LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II Regular Interest
LTII-M1, REMIC II Regular Interest LTII-M2 and REMIC II Regular Interest LTII-M3
for such Distribution Date, with the rate on each such REMIC II Regular Interest
subject to a cap equal to the related Pass-Through Rate.
REMIC III: The pool of assets consisting of the REMIC II Regular
Interests and all payments of principal or interest on or with respect to the
REMIC II Regular Interests after the Cut Off Date.
REMIC PROVISIONS: Provisions of the United States federal income tax
law relating to real estate mortgage investment conduits, which appear at
Section 860A through 860G of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
REMIC REGULAR INTEREST: A REMIC I Regular Interest, REMIC II Regular
Interest or a Regular Interest Certificate.
REMITTANCE REPORT: A report by the Securities Administrator pursuant to
Section 4.3.
REO DISPOSITION: The sale or other disposition of an REO Property on
behalf of REMIC I.
REO IMPUTED INTEREST: As to any REO Property, for any calendar month
during which such REO Property was at any time part of REMIC I, one month's
interest at the applicable Net Mortgage Rate on the Scheduled Principal Balance
of such REO Property (or, in the case of the first such calendar month, of the
related Loan, if appropriate) as of the close of business on the Distribution
Date in such calendar month.
REO PROPERTY: A Mortgaged Property, title to which has been acquired by
a Servicer on behalf of the Trust Fund through foreclosure, deed in lieu of
foreclosure or otherwise.
REQUIRED OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution
Date (a) if such Distribution Date is prior to the Stepdown Date, 0.60% of the
aggregate Scheduled Principal Balance of the Loans as of the Cut-Off Date, or
(b) if such Distribution Date is on or after the Stepdown Date, the greater of
(i) 1.20% of the aggregate Scheduled Principal Balance
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of the Loans as of the last day of the related Due Period (after giving effect
to the principal portion of Monthly Payments due during the related Due Period,
to the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period, and after reduction for Realized
Losses on the Loans incurred during the related Prepayment Period) and (ii)
0.35% of the aggregate Scheduled Principal Balance of the Loans as of the
Cut-Off Date.
REQUIRED OVERCOLLATERALIZATION PERCENTAGE: For any Distribution Date, a
percentage equal to (a) the Required Overcollateralization Amount divided by (b)
the aggregate Principal Balance of the Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Prepayment
Period).
RESIDUAL CERTIFICATE: The Class R Certificate, which is being issued in
a single class. Components R-1, R-2 and R-3 of the Class R Certificate are
hereby each designated the sole Class of "residual interests" in REMIC I, REMIC
II and REMIC III, respectively, for purposes of Section 860G(a)(2) of the Code.
RESERVE FUND: Shall mean the separate trust account created and
maintained by the Securities Administrator pursuant to Section 3.25 hereof.
RESERVE INTEREST RATE: The rate per annum that the Securities
Administrator determines to be either (i) the arithmetic mean of the one-month
U.S. dollar lending rates which New York City banks selected by the Securities
Administrator are quoting on the relevant LIBOR Determination Date to the
principal London offices of leading banks in the London interbank market or (ii)
in the event that the Securities Administrator can determine no such arithmetic
mean, the lowest one-month U.S. dollar lending rate which New York City banks
selected by the Securities Administrator are quoting on such Interest
Determination Date to leading European banks.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any officer
in the corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject. When used with respect to the Master Servicer or the Securities
Administrator, the Chairman or Vice-Chairman of the Board of Directors or
Trustees, the Chairman or Vice-Chairman of the Executive or Standing Committee
of the Board of Directors or Trustees, the President, the Chairman of the
Committee on Trust Matters, any Vice-President, any Assistant Vice-President,
the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer,
the Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust
Officer, the Controller, any Assistant Controller or any other officer
customarily performing functions similar to those performed by any of the
above-designated officers and in each case having direct responsibility for the
administration of this Agreement, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject. When used with respect
to the Depositor or any other Person, the Chairman or Vice-Chairman of the Board
of Directors, the Chairman or
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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 officer's
knowledge of and familiarity with the particular subject.
S&P: Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, Inc. provided, that at any time it is a Rating Agency.
SCHEDULED PRINCIPAL BALANCE: With respect to any Loan and a Due Date,
the unpaid principal balance of such Loan as specified in the amortization
schedule (before any adjustment to such schedule by reason of bankruptcy or
similar proceeding or any moratorium or similar waiver or grace period) for such
Due Date, after giving effect to any previously applied Curtailments, the
payment of principal on such Due Date and any reduction of the principal balance
of such Loan by a bankruptcy court, irrespective of any delinquency in payment
by the related Mortgagor.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: As of the Closing Date, Xxxxx Fargo Bank,
N.A. and thereafter, its respective successors in interest who meet the
qualifications of this Agreement. The Securities Administrator and the Master
Servicer shall at all times be the same Person.
SELLER: DB Structured Products, Inc., or its successor in interest, in
its capacity as seller under the Mortgage Loan Purchase Agreement and in its
capacity as assignor under the Assignment Agreements.
SENIOR CERTIFICATES: The Class A Certificates.
SENIOR INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date, an amount equal to the sum of (i) the Interest Distribution Amount for
such Distribution Date for the Class A Certificates and (ii) the Interest Carry
Forward Amount, if any, for such Distribution Date for the Class A Certificates.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date (i) prior to the Stepdown Date or on or after the Stepdown Date if a
Trigger Event is in effect, the Principal Distribution Amount or (ii) on or
after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
(a) the Principal Distribution Amount for that Distribution Date; and
(b) the excess (if any) of (A) the aggregate Certificate Principal
Balance of the Class A Certificates immediately prior to that Distribution Date
over (B) the positive difference between (i) the aggregate Principal Balance of
the Loans as of the last day of the related Due Period (after reduction for
Realized Losses incurred during the related Prepayment Period) and (ii) the
product of (x) the aggregate Principal Balance of the Loans as of the last day
of the
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related Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (y) the sum of 11.30% and the Required
Overcollateralization Percentage.
SERVICER: GMAC, M&T or GreenPoint, as applicable, or any successor
appointed under the applicable Servicing Agreement.
SERVICER REMITTANCE DATE: With respect to each Distribution Date shall
mean (i) with respect to GMAC and M&T, 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 and (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.
SERVICING ADVANCES: The customary reasonable and necessary
"out-of-pocket" costs and expenses incurred by the applicable Servicer in
connection with a default, delinquency or other unanticipated event by the
applicable Servicer in the performance of its servicing obligations, including,
but not limited to, the cost of (i) the preservation, restoration and protection
of a Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures, in respect of a particular Loan and (iii) the management
(including reasonable fees in connection therewith) and liquidation of any REO
Property. No Servicer shall be required to make any Servicing Advance in respect
of a Loan or REO Property that, in the good faith business judgment of such
Servicer, would not be ultimately recoverable from related Insurance Proceeds or
Liquidation Proceeds on such Loan or REO Property as provided herein.
SERVICING AGREEMENT: The GMAC Servicing Agreement, the M&T Servicing
Agreement, or the GreenPoint Servicing Agreement.
SERVICING FEE: With respect to each Loan and for any Distribution Date,
an amount equal to one twelfth of the product of the 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.
SERVICING FEE RATE: 0.25% per annum.
SERVICING OFFICER: Any individual involved in, or responsible for, the
administration and servicing of the Loans whose name and specimen signature
appear on a list of servicing officers furnished to the Trustee, 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.
STARTUP DAY: With respect to each REMIC, the day designated as such
pursuant to Section 10.1(b) hereof.
STEPDOWN DATE: The earlier to occur of (i) the later to occur of (a)
the Distribution Date occurring in September 2007 and (b) the first Distribution
Date on which the Credit Enhancement Percentage of the Class A Certificates
(calculated for this purpose only after taking into account distributions of
principal on the Loans but prior to any distribution of the Principal
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Distribution Amount to the Certificateholders then entitled to distributions of
principal on such Distribution Date) is equal to or greater than 12.50% and (ii)
the first Distribution Date on which the aggregate Certificate Principal Balance
of the Senior Certificates has been reduced to zero.
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.
SUBSTITUTE LOAN: A mortgage loan substituted for a Deleted Loan
pursuant to the terms of this Agreement which must, on the date of such
substitution, (i) have an outstanding principal balance, after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, not in excess of the Scheduled Principal Balance of the
Deleted Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a Mortgage Interest Rate not less than (and not
more than one percentage point in excess of) the Mortgage Interest Rate of the
Deleted Loan, (iii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Loan, (iv) have the same Due
Date as the Due Date on the Deleted Loan, (v) have a Loan-to-Value Ratio as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted Loan as of such date, (vi) have a risk grading at least equal to the
risk grading assigned on the Deleted Loan, (vii) is a "qualified mortgage" as
defined in the REMIC Provisions and (viii) conform to each representation and
warranty set forth in Section 6 of the Mortgage Loan Purchase Agreement
applicable to the Deleted Loan. In the event that one or more mortgage loans are
substituted for one or more Deleted Loans, the amounts described in clause (i)
hereof shall be determined on the basis of aggregate principal balances, the
Mortgage Interest Rates described in clause (ii) hereof shall be determined on
the basis of weighted average Mortgage Interest Rates, the terms described in
clause (iii) hereof shall be determined on the basis of weighted average
remaining term to maturity, the Loan-to-Value Ratios described in clause (v)
hereof shall be satisfied as to each such mortgage loan, the risk gradings
described in clause (vi) hereof shall be satisfied as to each such mortgage loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (viii) hereof must be
satisfied as to each Substitute Loan or in the aggregate, as the case may be.
TAX MATTERS PERSON: The Holder of the Class R Certificates issued
hereunder or any Permitted Transferee of such Class R Certificateholder shall be
the initial "tax matters person" for REMIC I, REMIC II and REMIC III within the
meaning of Section 6231(a)(7) of the Code. For tax years commencing after any
transfer of the Class R Certificate, the holder of the greatest Percentage
Interest in the Class R Certificate at year end shall be designated as the Tax
Matters Person with respect to that year. If the Tax Matters Person becomes a
Disqualified Organization, the last preceding Holder of such Authorized
Denomination of the Class R Certificate that is not a Disqualified Organization
shall be Tax Matters Person pursuant to Section 5.3(e). If any Person is
appointed as tax matters person by the Internal Revenue Service pursuant to the
Code, such Person shall be Tax Matters Person.
TERMINATION PRICE: As defined in Section 9.1.
TERMINATOR: As defined in Section 9.1.
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TRANSFER: Any direct or indirect transfer, sale, pledge or other
disposition of, or directly or indirectly transferring, selling or pledging, any
Ownership Interest in a Class CE Certificate, Class P Certificate or Residual
Certificate.
TRANSFEREE: Any Person who is acquiring by Transfer any Ownership
Interest in a Class CE Certificate, Class P Certificate or Residual Certificate.
TRIGGER EVENT: A Trigger Event has occurred with respect to a
Distribution Date if (x) the Delinquency Percentage exceeds 50% of the Credit
Enhancement Percentage of the Class A Certificates for the prior Distribution
Date or (y) the aggregate amount of Realized Losses incurred on the Loans since
the Cut-Off Date through the last day of the related Due Period divided by the
aggregate Principal Balance of the Loans as of the Cut-Off Date exceeds the
applicable percentage set forth below with respect to such Distribution Date:
Distribution Date Percentage
September 2007 and thereafter 1.00%
TRUST FUND: Collectively, all of the assets of REMIC I, REMIC II and
REMIC III, and the Reserve Fund and any amounts on deposit therein and any
proceeds thereof, the Prepayment Charges and the Cap Contract.
TRUSTEE: HSBC Bank USA, National Association, a national banking
association, or its successor in interest, or any successor trustee appointed as
herein provided.
UNCERTIFICATED ACCRUED INTEREST: With respect to each Uncertificated
REMIC Regular Interest on each Distribution Date, an amount equal to one month's
interest at the Uncertificated REMIC I Pass-Through Rate or Uncertificated REMIC
II Pass-Through Rate, as applicable, on the Uncertificated Principal Balance or
Uncertificated Notional Amount, as applicable, of such Uncertificated 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 (allocated to such Uncertificated REMIC Regular Interests as
set forth in Sections 1.2 and 4.5).
UNCERTIFICATED NOTIONAL AMOUNT: With respect to REMIC II Regular
Interest LTII-IO-A and (i) each Distribution Date from and including the
Distribution Date in September 2004 to and including the Distribution Date in
February 2005, the aggregate Uncertificated Principal Balances of REMIC I
Regular Interest LTI-IO-1 through REMIC I Regular Interest LTI-IO-4, (ii) each
Distribution Date from and including the Distribution Date in March 2005 to and
including the Distribution Date in August 2005, the aggregate Uncertificated
Principal Balances of REMIC I Regular Interest LTI-IO-2 through REMIC I Regular
Interest LTI-IO-4, (iii) each Distribution Date from and including the
Distribution Date in September 2005 to and including the Distribution Date in
February 2006, the aggregate Uncertificated Principal Balances of REMIC I
Regular Interest LTI-IO-3 and REMIC I Regular Interest LTI-IO-4, (iv) each
Distribution Date from and including the Distribution Date in March 2006 to and
including the Distribution Date in August 2006, the aggregate Uncertificated
Principal Balance of REMIC I Regular Interest LTI-IO-4 and (vi) each
Distribution Date thereafter, $0.
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UNCERTIFICATED PRINCIPAL BALANCE: With respect to each Uncertificated
REMIC Regular Interest (other than REMIC II Regular Interest LTII-IO-A and REMIC
II Regular Interest LTII-IO-B, 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 Uncertificated REMIC Regular
Interest (other than REMIC II Regular Interest LTII-IO-A and REMIC II Regular
Interest LTII-IO-B) 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 Section 4.5 and, if and
to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 4.2. The
Uncertificated Principal Balance of each REMIC Regular Interest shall never be
less than zero. REMIC II Regular Interest LTII-IO-A and REMIC II Regular
Interest LTII-IO-B will not have Uncertificated Principal Balances.
UNCERTIFICATED REMIC I PASS-THROUGH RATE: A per annum rate equal to the
average of the Net Mortgage Rates of the Loans as of the first day of the
related Due Period, weighted on the basis of the Scheduled Principal Balances as
of the first day of the related Due Period.
UNCERTIFICATED REMIC II PASS-THROUGH RATE: With respect to REMIC II
Regular Interest LTII-AA, REMIC II Regular Interest LTII-A1, REMIC II Regular
Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest
LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular Interest
LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II Regular Interest LTII-M1,
REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC
II Regular Interest LTII-ZZ, a per annum rate (but not less than zero) equal to
the weighted average of: (x) with respect to REMIC I Regular Interest LTI-1 and
REMIC I Regular Interest LTI-P, the Uncertificated REMIC I Pass-Through Rate for
such REMIC I Regular Interest for each such Distribution Date, and (y) with
respect to REMIC I Regular Interest LTI-IO-1 through REMIC I Regular Interest
LTI-IO-4 for each Distribution Date listed below, the weighted average of the
rates listed below for each such REMIC I Regular Interest listed below, weighted
on the basis of the Uncertificated Principal Balance of each such REMIC I
Regular Interest:
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------------------- ------------------------------------- -------------------------------------------------------
DISTRIBUTION DATE REMIC I REGULAR INTERESTS RATE
------------------- ------------------------------------- -------------------------------------------------------
1 LTI-IO-1 through LTI-IO-4 (a) Uncertificated REMIC IAN Pass-Through Rate over
(b) 4.50%
------------------- ------------------------------------- -------------------------------------------------------
2 LTI-IO-1 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
3 LTI-IO-1 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
4 LTI-IO-1 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
5 LTI-IO-1 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
6 LTI-IO-1 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
7 LTI-IO-2 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
8 LTI-IO-2 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
9 LTI-IO-2 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
10 LTI-IO-2 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
11 LTI-IO-2 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
12 LTI-IO-2 through LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
4.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
13 LTI-IO-3 and LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 and LTI-IO-2 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
14 LTI-IO-3 and LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 and LTI-IO-2 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
15 LTI-IO-3 and LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 and LTI-IO-2 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
16 LTI-IO-3 and LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 and LTI-IO-2 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
17 LTI-IO-3 and LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 and LTI-IO-2 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
18 LTI-IO-3 and LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1 and LTI-IO-2 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
19 LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1, LTI-IO-2 and LTI-IO-3 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
20 LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1, LTI-IO-2 and LTI-IO-3 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
21 LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1, LTI-IO-2 and LTI-IO-3 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
22 LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1, LTI-IO-2 and LTI-IO-3 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
23 LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1, LTI-IO-2 and LTI-IO-3 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
24 LTI-IO-4 (a) Uncertificated REMIC I Pass-Through Rate over (b)
3.50%
------------------- ------------------------------------- -------------------------------------------------------
LTI-IO-1, LTI-IO-2, and LTI-IO-3 Uncertificated REMIC I Pass-Through Rate
------------------- ------------------------------------- -------------------------------------------------------
25 and thereafter LTI-IO-1, LTI-IO-2, LTI-IO-3 and Uncertificated REMIC I Pass-Through Rate
LTI-IO-4
------------------- ------------------------------------- -------------------------------------------------------
With respect to REMIC II Regular Interest LTII-IO-A, (i) for the first
twelve distribution dates, 1.00% and (ii) thereafter, 0.00%. With respect to
REMIC II Regular Interest LTII-IO-B, (i) for the first twenty-four distribution
dates, 3.50% and (ii) thereafter, 0.00%.
UNCERTIFICATED REMIC REGULAR INTEREST: The REMIC I Regular Interests
and the REMIC II Regular Interests.
UNCOLLECTED INTEREST: With respect to any Distribution Date, the sum of
(i) the aggregate Prepayment Interest Shortfalls with respect to the Loans for
such Distribution Date and (ii) the aggregate Curtailment Shortfalls with
respect to the Loans for such Distribution Date.
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UNCOMPENSATED INTEREST SHORTFALL: For any Distribution Date, the
excess, if any, of (i) the sum of (a) the related Uncollected Interest for such
Distribution Date, and (b) any shortfall in interest collections for the Loans
in the calendar month immediately preceding such Distribution Date resulting
from a Relief Act Interest Shortfall over (ii) the aggregate Compensating
Interest paid by the Servicers and the Master Servicer with respect to the Loans
for such Distribution Date, which excess shall be allocated to each Class of
Certificates, pro rata, according to the amount of interest accrued thereon in
reduction thereof.
UNDERWRITER: Deutsche Bank Securities Inc.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.9.
U.S. PERSON: A citizen or resident of the United States, a corporation
or partnership (including an entity treated as a corporation or partnership for
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.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any such Certificate. With respect to any
date of determination, 98% of all Voting Rights will be allocated among the
holders of the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates in proportion to the then outstanding Certificate Principal
Balances of their respective Certificates, 1% of all Voting Rights will be
allocated among the holders of the Class P Certificates and 1% of all Voting
Rights will be allocated among the holders of the Class R Certificates. The
Voting Rights allocated to each Class of Certificate shall be allocated among
Holders of each such Class in accordance with their respective Percentage
Interests as of the most recent Record Date. Notwithstanding any of the
foregoing, unless a Certificate Insurer Default is continuing, on any date on
which any Insured Certificates are outstanding, or any amounts are owed to the
Certificate Insurer under this Agreement, the Certificate Insurer will have all
Voting Rights of the Insured Certificates. So long as the Certificate Insurer
has the Voting Rights pursuant to the preceding sentence, the reference to
holders of the Class A-4A, Class A-5A and Class A-5B Certificates shall be
deemed to refer to the Certificate Insurer.
XXXXX FARGO: Xxxxx Fargo Bank, N.A., or any successor thereto.
Section 1.2 ALLOCATION OF CERTAIN INTEREST SHORTFALLS.
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For purposes of calculating the Interest Distribution Amount for the
Class A Certificates, the Mezzanine Certificates and the Class CE Certificates
for any Distribution Date, (1) the aggregate amount of any Prepayment Interest
Shortfalls and Curtailment Interest Shortfalls to the extent not covered by
payment by the related Servicer pursuant to the related Servicing Agreement or
the Master Servicer pursuant to Section 3.20 shall first reduce the Net Monthly
Excess Cashflow for such Distribution Date, second, reduce the Interest
Distribution Amount payable to the Class CE Certificates, third, reduce the
Interest Distribution Amount payable to the Class M-3 Certificates, fourth,
reduce the Interest Distribution Amount payable to the Class M-2 Certificates,
fifth, reduce the Interest Distribution Amount payable to the Class M-1
Certificates and sixth, reduce the Interest Distribution Amount payable to the
Class A Certificates (on a PRO RATA basis based on their respective Senior
Interest Distribution Amounts before such reduction), (2) any Relief Act
Interest Shortfalls on the Loans shall be allocated to the Certificates on a pro
rata basis based on their respective Interest Distribution Amounts before such
reduction, and (3) the aggregate amount of the interest portion of Realized
Losses allocated to the Mezzanine Certificates and Net WAC Rate Carryover
Amounts paid to the Class A Certificates (other than the Class A-IO
Certificates) and the Mezzanine Certificates on any Distribution Date shall be
allocated to the Class CE Certificates to the extent of one month's interest at
the then applicable Pass-Through Rate on the Certificate Principal Balance or
Notional Amount thereof, as applicable.
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 Uncompensated Interest Shortfalls incurred in respect of
the Loans for any Distribution Date shall be allocated first, to REMIC I Regular
Interest LTI-1 and REMIC I Regular Interest LTI-P, to the extent of one month's
interest at the then applicable respective Uncertificated REMIC I Pass-Through
Rate on the Uncertificated Principal Balance of each such REMIC I Regular
Interest; and then, to REMIC I Regular Interest LTI-IO-1, REMIC I Regular
Interest LTI-IO-2, REMIC I Regular Interest LTI-IO-3 and REMIC I Regular
Interest LTI-IO-4, in each case to the extent of one month's interest at the
then applicable respective Uncertificated REMIC I Pass-Through Rate on the
respective Uncertificated Principal Balance of each such REMIC I Regular
Interest.
For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC II Regular Interests for any Distribution Date, the
aggregate amount of any Uncompensated Interest Shortfalls incurred in respect of
the Loans for any Distribution Date shall be allocated among REMIC II Regular
Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest
LTII-A3, REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B,
REMIC II Regular Interest LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II
Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular
Interest LTII-M3 and REMIC II Regular Interest LTII-ZZ, pro rata based on, and
to the extent of, one month's interest at the then applicable respective
Uncertificated REMIC II Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC II Regular Interest.
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ARTICLE II
CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF TRUST FUND. The Depositor, concurrently with
the execution and delivery hereof, does hereby transfer, assign, set over and
otherwise convey to the Trustee, on behalf of the Trust, without recourse, for
the benefit of the Certificateholders and the Certificate Insurer all the right,
title and interest of the Depositor, including any security interest therein for
the benefit of the Depositor, in and to the Loans identified on the Loan
Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement
and the Assignment Agreements (including, without limitation the right to
enforce the obligations of the other parties thereto thereunder), and all other
assets included or to be included in 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 Agreement, the
Servicing Agreements and the Assignment Agreements.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with the Custodian pursuant to the Custodial
Agreement the documents with respect to each Loan as described under Section 2
of the Custodial Agreement (the "Loan Documents"). In connection with such
delivery and as further described in the Custodial Agreement, the Custodian will
be required to review such Loan Documents and deliver to the Trustee, the
Depositor, the Master Servicer and the Seller certifications (in the forms
attached to the Custodial Agreement) with respect to such review with exceptions
noted thereon. In addition, the Depositor under the Custodial Agreement will
have to cure certain defects with respect to the Loan Documents for the related
Loans after the delivery thereof by the Depositor to the Custodian as more
particularly set forth therein.
Section 2.2 ACCEPTANCE BY TRUSTEE.
The Trustee acknowledges receipt, subject to the provisions of Section
2.1 hereof and Section 2 of the Custodial Agreement, of the Loan Documents and
all other assets included in the definition of "REMIC I" under clauses (i),
(iii), (iv) and (v) (to the extent of amounts deposited into the Distribution
Account) and declares that it holds (or the Custodian on its behalf holds) and
will hold such documents and the other documents delivered to it constituting a
Loan Document, and that it holds (or the Custodian on its behalf holds) or will
hold all such assets and such other assets included in the definition of "REMIC
I" in trust for the exclusive use and benefit of all present and future
Certificateholders and the Certificate Insurer.
Section 2.3 REPURCHASE OR SUBSTITUTION OF LOANS.
(a) Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File or of a breach
by the Seller of any representation, warranty or covenant under the Mortgage
Loan Purchase Agreement in respect of any Loan that materially and adversely
affects the value of such Loan or the interest therein of
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the Certificateholders or the Certificate Insurer, the Trustee shall promptly
notify the Seller of such defect, missing document or breach and request that
the Seller deliver such missing document, cure such defect or breach within 60
days from the date the Seller was notified of such missing document, defect or
breach, and if the Seller does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Trustee shall
enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement
to repurchase such Loan from REMIC I at the Purchase Price within 90 days after
the date on which the Seller was notified of such missing document, defect or
breach, if and to the extent that the Seller is obligated to do so under the
Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Loan
shall be deposited in the Distribution Account and the Trustee, upon receipt of
written certification from the Securities Administrator of such deposit and
receipt by the Custodian of a properly completed request for release for such
Loan in the form of EXHIBIT 3 to the Custodial Agreement, shall release or cause
the Custodian to release to the Seller the related Mortgage File and the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as the Seller shall furnish
to it and as shall be necessary to vest in the Seller any Loan released pursuant
hereto, and the Trustee shall not have any further responsibility with regard to
such Mortgage File. In lieu of repurchasing any such Loan as provided above, if
so provided in the Mortgage Loan Purchase Agreement, the Seller may cause such
Loan to be removed from 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 the Seller to cure or to repurchase (or to substitute for) any
Loan as to which a document is missing, a material defect in a constituent
document exists or as to which such a breach has occurred and is continuing
shall constitute the sole remedy respecting such omission, defect or breach
available to the Trustee, the Certificateholders and the Certificate Insurer.
Notwithstanding the foregoing, if the representation made by the Seller in
Section 6(xxiv) of the Mortgage Loan Purchase Agreement is breached, the Trustee
shall enforce the obligation of the Seller 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 90 days after the date on which the
Seller was notified of such breach.
In addition, should the Master Servicer become aware of or in the event
of its receipt of notice by a Responsible Officer of the Master Servicer of the
breach of the representation or covenant of the Seller set forth in Section 5(x)
of the Mortgage Loan Purchase Agreement which materially and adversely affects
the interests of the Holders of the Class P Certificates in any Prepayment
Charge, the Master Servicer shall promptly notify the Seller and the Trustee of
such breach. The Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement to remedy such breach to the extent and in the
manner set forth in the Mortgage Loan Purchase Agreement.
(b) Any substitution of Substitute Loans for Deleted Loans made
pursuant to Section 2.3(a) must be effected prior to the date which is two years
after the Startup Day for the REMIC I.
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As to any Deleted Loan for which the Seller, substitutes a Substitute
Loan or Loans, such substitution shall be effected by the Seller delivering to
the Trustee or the Custodian on behalf of the Trustee, for such Substitute Loan
or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and
such other documents and agreements, with all necessary endorsements thereon, as
are required by Section 2 of the Custodial Agreement, as applicable, together
with an Officers' Certificate providing that each such Substitute Loan satisfies
the definition thereof and specifying the Substitution Shortfall Amount (as
described below), if any, in connection with such substitution. The Custodian on
behalf of the Trustee shall acknowledge receipt of such Substitute Loan or Loans
and, within ten Business Days thereafter, review such documents and deliver to
the Depositor, the Trustee and the Master Servicer, with respect to such
Substitute Loan or Loans, an initial certification pursuant to the Custodial
Agreement, with any applicable exceptions noted thereon. Within one year of the
date of substitution, the Custodian on behalf of the Trustee shall deliver to
the Depositor, the Trustee and the Master Servicer a final certification
pursuant to the Custodial Agreement with respect to such Substitute Loan or
Loans, 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 the Seller. For the month of substitution,
distributions to Certificateholders shall reflect the Monthly Payment due on
such Deleted Loan on or before the Due Date in the month of substitution, and
the Seller shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Loan. The Depositor shall give or cause to
be given written notice to the Certificateholders that such substitution has
taken place, shall amend the Loan Schedule to reflect the removal of such
Deleted Loan from the terms of this Agreement and the substitution of the
Substitute Loan or Loans and shall deliver a copy of such amended Loan Schedule
to the Trustee and the Master Servicer. Upon such substitution, such Substitute
Loan or Loans shall constitute part of the Trust Fund and shall be subject in
all respects to the terms of this Agreement and the Mortgage Loan Purchase
Agreement including all applicable representations and warranties thereof
included herein or in the Mortgage Loan Purchase Agreement.
For any month in which the Seller substitutes one or more Substitute
Loans for one or more Deleted Loans, the Master Servicer shall determine the
amount (the "Substitution Shortfall Amount"), if any, by which the aggregate
Purchase Price of all such Deleted Loans exceeds the aggregate of, as to each
such Substitute Loan, the Scheduled Principal Balance thereof as of the Due Date
in the month of substitution, together with one month's interest on such
Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all
outstanding Advances and Servicing Advances (including Nonrecoverable Advances)
related thereto. On the date of such substitution, the Seller shall deliver or
cause to be delivered to the Securities Administrator for deposit in the
Distribution Account an amount equal to the Substitution Shortfall Amount, if
any, and the Trustee or the Custodian on behalf of the Trustee, upon receipt of
the related Substitute Loan or Loans and certification by the Securities
Administrator of such deposit and receipt by the Custodian of a properly
completed request for release for such Loan in the form of EXHIBIT 3 to the
Custodial Agreement, shall release to the Seller the related Mortgage File or
Files and the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as the
Seller shall deliver to it and as shall be necessary to vest therein any Deleted
Loan released pursuant hereto.
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In addition, the Seller shall obtain at its own expense and deliver to
the Trustee an Opinion of Counsel to the effect that such substitution will not
cause (a) any federal tax to be imposed on any REMIC, including without
limitation, any federal tax imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or on "contributions after the startup date" under
Section 860G(d)(1) of the Code, or (b) any REMIC to fail to qualify as a REMIC
at any time that any Certificate is outstanding.
(c) Upon discovery by the Depositor, the Seller, the Master Servicer or
the Trustee that any Loan does not constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall
within two Business Days give written notice thereof to the other parties. In
connection therewith, the Seller shall repurchase or substitute one or more
Substitute Loans for the affected Loan within 90 days of the earlier of
discovery or receipt of such notice with respect to such affected Loan. Such
repurchase or substitution shall be made by (i) the Seller, if the affected
Loan's status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Seller under the Mortgage Loan
Purchase Agreement or (ii) the Depositor, if the affected Loan's status as a
non-qualified mortgage does not result from a breach of representation or
warranty. Any such repurchase or substitution shall be made in the same manner
as set forth in Section 2.3(a). The Trustee shall reconvey to the Seller or the
Depositor the Loan to be released pursuant hereto in the same manner, and on the
same terms and conditions, as it would a Loan repurchased for breach of a
representation or warranty.
(d) Within 90 days of the earlier of discovery by the Master Servicer
or receipt of notice by the Master Servicer of the breach of any representation,
warranty or covenant of the Master Servicer set forth in Section 2.5 which
materially and adversely affects the interests of the Certificateholders or the
Certificate Insurer in any Loan or Prepayment Charge, the Master Servicer shall
cure such breach in all material respects.
Section 2.4 AUTHENTICATION AND DELIVERY OF CERTIFICATES; DESIGNATION OF
CERTIFICATES AS REMIC REGULAR AND RESIDUAL INTERESTS.
(a) The Trustee acknowledges the transfer to the extent provided herein
and assignment to it of the Trust Fund and, concurrently with such transfer and
assignment, has caused the Securities Administrator to execute and authenticate
and has delivered to or upon the order of the Depositor, in exchange for the
Trust Fund, Certificates evidencing the entire ownership of the Trust Fund.
(b) This Agreement shall be construed so as to carry out the intention
of the parties that each of REMIC I, REMIC II, and REMIC III be treated as a
REMIC at all times prior to the date on which the Trust Fund is terminated. The
"regular interests" (within the meaning of Section 860G(a)(1) of the Code) in
REMIC III shall consist of the Class A Certificates, the Mezzanine Certificates,
the Class CE Certificates and the Class P Certificate. The "residual interest"
(within the meaning of Section 860G(a)(2) of the Code) in REMIC III shall
consist of Component R-1. The "regular interests" (within the meaning of Section
860G(a)(1) of the Code) of REMIC II shall consist of the REMIC II Regular
Interests. The "residual interest" (within the meaning of Section 860(G)(a)(2)
of the Code) of REMIC II shall consist of Component R-2. The "regular interests"
(within the meaning of Section 860G(a)(1) of the Code) of REMIC I shall
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consist the REMIC I Regular Interests. The "residual interest" (within the
meaning of Section 860(G)(a)(2) of the Code) of REMIC I shall consist of
Component R-1.
Section 2.5 REPRESENTATIONS AND WARRANTIES OF THE MASTER SERVICER.
The Master Servicer hereby represents, warrants and covenants to the
Trustee, for the benefit of each of the Trustee, the Certificateholders, the
Certificate Insurer and the Depositor that as of the Closing Date or as of such
date specifically provided herein:
(i) The Master Servicer is a national banking association duly formed,
validly existing and in good standing under the laws of the United States
of America and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Master
Servicer;
(ii) The Master Servicer has the full power and authority to conduct
its business as presently conducted by it and to execute, deliver and
perform, and to enter into and consummate, all transactions contemplated by
this Agreement. The Master Servicer has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered
this Agreement, and this Agreement, assuming due authorization, execution
and delivery by the Depositor and the Trustee, constitutes a legal, valid
and binding obligation of the Master Servicer, enforceable against it in
accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
the enforcement of creditors' rights generally and by general principles of
equity;
(iii) The execution and delivery of this Agreement by the Master
Servicer, the consummation by the Master Servicer of any other of the
transactions herein contemplated, and the fulfillment of or compliance with
the terms hereof are in the ordinary course of business of the Master
Servicer and will not (A) result in a breach of any term or provision of
charter and by-laws of the Master Servicer or (B) conflict with, result in
a breach, violation or acceleration of, or result in a default under, the
terms of any other material agreement or instrument to which the Master
Servicer is a party or by which it may be bound, or any statute, order or
regulation applicable to the Master Servicer of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Master Servicer; and the Master Servicer is not a party to, bound by, or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the
Master Servicer's knowledge, would in the future materially and adversely
affect, (x) the ability of the Master Servicer to perform its obligations
under this Agreement or (y) the business, operations, financial condition,
properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant made by
it and contained in this Agreement;
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(v) No litigation is pending against the Master Servicer that would
materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Master Servicer to perform any of
its other obligations hereunder in accordance with the terms hereof,
(vi) There are no actions or proceedings against, or investigations
known to it of, the Master Servicer before any court, administrative or
other tribunal (A) that might prohibit its entering into this Agreement,
(B) seeking to prevent the consummation of the transactions contemplated by
this Agreement or (C) that might prohibit or materially and adversely
affect the performance by the Master Servicer of its obligations under, or
validity or enforceability of, this Agreement; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of, or compliance by the Master Servicer
with, this Agreement or the consummation by it of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations or orders, if any, that have been obtained prior to the
Closing Date.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.5 shall inure to the benefit of the
Trustee, the Depositor, the Certificate Insurer and the Certificateholders.
Section 2.6 ESTABLISHMENT OF THE TRUST.
The Depositor does hereby establish, pursuant to the further provisions
of this Agreement and the laws of the State of New York, an express trust to be
known, for convenience, as "Deutsche Mortgage Securities, Inc., Mortgage Loan
Trust, Series 2004-5" and does hereby appoint HSBC Bank USA, National
Association as Trustee in accordance with the provisions of this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE LOANS; ACCOUNTS
Section 3.1 MASTER SERVICER. The Master Servicer shall supervise,
monitor and oversee the obligation of the Servicers to service and administer
their respective Loans in accordance with the terms of the applicable Servicing
Agreement and shall have full power and authority to do any and all things which
it may deem necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with each Servicer as
necessary from time-to-time to carry out the Master Servicer's obligations
hereunder, shall receive, review and evaluate all reports, information and other
data provided to the Master Servicer by each Servicer and shall cause each
Servicer to perform and observe the covenants, obligations and conditions to be
performed or observed by such Servicer under the applicable Servicing Agreement.
The Master Servicer shall independently and separately monitor each Servicer's
servicing activities with respect to each related Loan, reconcile the results of
such monitoring with such information provided in the previous sentence on a
monthly basis and coordinate corrective adjustments to the Servicers' and Master
Servicer's records, and based on such reconciled and corrected information,
prepare the statements specified in Section 4.3 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.
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
"Servicer Credit Risk Management Agreement") 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.
The Trustee shall furnish the Servicers and the Master Servicer with
any limited powers of attorney and other documents in form as provided to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service or master service and administer the related Loans and REO Property. The
Trustee shall have no responsibility for any action of the Master Servicer or
any Servicer pursuant to any such limited power of attorney and shall be
indemnified by the Master Servicer or such Servicer for any cost, liability or
expense arising from the misuse thereof by the Master Servicer or such Servicer.
The Trustee, the Custodian and the Securities Administrator shall
provide access to the records and documentation in possession of the Trustee,
the Custodian or the Securities Administrator regarding the related Loans and
REO Property and the servicing thereof to the Certificateholders, the FDIC, and
the supervisory agents and examiners of the FDIC, such access being afforded
only upon reasonable prior written request and during normal business hours at
the office of the Trustee, the Custodian or the Securities Administrator;
provided, however, that, unless otherwise required by law, none of the Trustee,
the Custodian or the Securities
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Administrator shall be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee, the Custodian and the Securities Administrator
shall allow representatives of the above entities to photocopy any of the
records and documentation and shall provide equipment for that purpose at a
charge that covers the Trustee's, the Custodian's or the Securities
Administrator's actual costs.
The Trustee shall execute and deliver to the related Servicer or the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable and, in each case, provided to the
Trustee by such Servicer or Master Servicer to (i) the foreclosure or trustee's
sale with respect to a Mortgaged Property; (ii) any legal action brought to
obtain judgment against any Mortgagor on the Mortgage Note or any other Loan
Document; (iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note or any other
Loan Document or otherwise available at law or equity.
Section 3.2 REMIC-RELATED COVENANTS. For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall treat such REMIC as a
REMIC, and the Trustee and the Securities Administrator shall comply with any
directions of the Seller, the related Servicer or the Master Servicer to assure
such continuing treatment. In particular, the Trustee shall not (a) sell or
permit the sale of all or any portion of the Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Loans pursuant to this Agreement or the Trustee has received an Opinion of
Counsel stating that such sale will not result in an Adverse REMIC Event as
defined in Section 10.1(f) hereof prepared at the expense of the Trust Fund; and
(b) other than with respect to a substitution pursuant to the Mortgage Loan
Purchase 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.
Section 3.3 MONITORING OF SERVICERS.
(a) The Master Servicer shall be responsible for monitoring the
compliance by each Servicer with its duties under the related Servicing
Agreement. In the review of each Servicer's activities, the Master Servicer may
rely upon an officer's certificate of any Servicer with regard to such
Servicer's compliance with the terms of its Servicing Agreement. In the event
that the Master Servicer, in its judgment, determines that a Servicer should be
terminated in accordance with its Servicing Agreement, or that a notice should
be sent pursuant to such Servicing Agreement with respect to the occurrence of
an event that, unless cured, would constitute grounds for such termination, the
Master Servicer shall notify the Seller and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee, the
Certificateholders and the Certificate Insurer, shall enforce the obligations of
each Servicer under the related Servicing Agreement, and shall, in the event
that a Servicer fails to perform its obligations in accordance with the related
Servicing Agreement, subject to the preceding paragraph, terminate the rights
and obligations of such Servicer thereunder and act as servicer of the related
Loans or
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to cause the Trustee to enter in to a new Servicing Agreement with a successor
Servicer selected by the Master Servicer; provided, however, it is understood
and acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing Agreements
and the pursuit of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the Master Servicer, in its good faith
business judgment, would require were it the owner of the related Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
provided that the Master Servicer shall not be required to prosecute or defend
any legal action except to the extent that the Master Servicer shall have
received indemnity reasonably acceptable to it for its costs and expenses in
pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor servicer to service the
Loans in accordance with the related Servicing Agreement) are not fully and
timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it shall not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.4 FIDELITY BOND. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy that would meet the requirements of Xxxxxx Xxx or Xxxxxxx Mac, affording
coverage with respect to all directors, officers, employees and other Persons
acting on such Master Servicer's behalf, and covering errors and omissions in
the performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees. Any such errors and omissions policy and fidelity bond may not be
cancelable without thirty (30) days' prior written notice to the Trustee.
Section 3.5 POWER TO ACT; PROCEDURES. The Master Servicer shall master
service the Loans and shall have full power and authority, subject to the REMIC
Provisions and the provisions of Article X hereof, to do any and all things that
it may deem necessary or desirable in connection with the master servicing and
administration of the Loans, including but not limited to the power and
authority (i) to execute and deliver, on behalf of the Certificateholders, the
Trustee and the Certificate Insurer, customary consents or waivers and other
instruments and
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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
REMIC I, REMIC II or REMIC III 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, the Securities Administrator has received an Opinion of Counsel
(but not at the expense of the Master Servicer, the Securities Administrator) to
the effect that the contemplated action will not cause REMIC I, REMIC II or
REMIC III to fail to qualify as a REMIC or result in the imposition of a tax
upon REMIC I, REMIC II or REMIC III, as the case may be. The Trustee shall
furnish the Master Servicer, upon written request from a Servicing Officer, with
any powers of attorney empowering the Master Servicer or any Servicer to execute
and deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to the
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer or applicable Servicer may request, to
enable the Master Servicer to master service and administer the Loans and carry
out its duties hereunder, in each case in accordance with Accepted Master
Servicing Practices (and the Trustee shall have no liability for the misuse of
any such powers of attorney by the Master Servicer or any Servicer and shall be
indemnified by the Master Servicer or such Servicer for any costs, liabilities
or expenses incurred by the Trustee in connection with such misuse). If the
Master Servicer or the Trustee has been advised that it is likely that the laws
of the state in which action is to be taken prohibit such action if taken in the
name of the Trustee or that the Trustee would be adversely affected under the
"doing business" or tax laws of such state if such action is taken in its name,
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 8.10 hereof. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall not,
except in those instances where it is taking action authorized pursuant to this
Agreement to be taken by it in the name of the Trustee, be deemed to be the
agent of the Trustee.
Section 3.6 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS. To the extent
provided in the applicable Servicing Agreement and to the extent Loans contain
enforceable due-on-sale clauses, the Master Servicer shall cause the Servicers
to enforce such clauses in accordance with the applicable Servicing Agreement.
If applicable law prohibits the enforcement of a due-on-sale clause or such
clause is otherwise not enforced in accordance with the applicable Servicing
Agreement, and, as a consequence, a Loan is assumed, the original Mortgagor may
be released from liability in accordance with the applicable Servicing
Agreement.
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Section 3.7 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of a Payoff with respect to any Loan, or the
receipt by any Servicer of a notification that a Payoff has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the next
Distribution Date, the applicable Servicer will (or if the Servicer does not,
the Master Servicer may), if required under the applicable Servicing Agreement,
promptly furnish to the Custodian, on behalf of the Trustee, two copies of a
request for release substantially in the form attached to the Custodial
Agreement, and signed by a Servicing Officer or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the applicable Servicer
pursuant to its Servicing Agreement have been or will be so deposited) and shall
request that the Custodian, on behalf of the Trustee, deliver to the applicable
Servicer the related Mortgage File. Upon receipt of such certification and
request, the Custodian, on behalf of the Trustee, shall promptly release the
related Mortgage File to the applicable Servicer and the Trustee and Custodian
shall have no further responsibility with regard to such Mortgage File. Upon any
such Payoff, each Servicer is authorized to give, as agent for the Trustee, as
the mortgagee under the Mortgage that secured the Loan, an instrument of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction or
assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Distribution Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Loan and in accordance with the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by a Servicer or the Master Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution of
any such proceedings. The Custodian, on behalf of the Trustee, shall, upon the
request of a Servicer or the Master Servicer, and delivery to the Custodian, on
behalf of the Trustee, of two copies of a request for release signed by a
Servicing Officer substantially in the form attached to the Custodial Agreement
(or in a mutually agreeable electronic format which will, in lieu of a signature
on its face, originate from a Servicing Officer), release the related Mortgage
File held in its possession or control to the Servicer or the Master Servicer,
as applicable. Such request for release shall obligate the Servicer or the
Master Servicer to return the Mortgage File to the Custodian on behalf of the
Trustee, when the need therefor by the Servicer or the Master Servicer no longer
exists unless the Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Custodian, on behalf of the Trustee, to
the Servicer or the Master Servicer.
Section 3.8 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such
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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 Custodian. Any funds received by the Master Servicer or by a
Servicer in respect of any Loan or which otherwise are collected by the Master
Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds or
Subsequent Recoveries in respect of any Loan shall be held for the benefit of
the Trustee, the Certificateholders and the Certificate Insurer subject to the
Master Servicer's right to retain or withdraw from the Distribution Account the
Master Servicing Compensation and other amounts provided in this Agreement, and
to the right of each Servicer to retain its Servicing Fee and other amounts as
provided in the applicable Servicing Agreement. The Master Servicer shall, and
(to the extent provided in the applicable Servicing Agreement) shall cause each
Servicer to, provide access to information and documentation regarding the Loans
to the Trustee, its agents and accountants at any time upon reasonable request
and during normal business hours, and to Certificateholders that are savings and
loan associations, banks or insurance companies, the OTS, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the OTS or other regulatory authority,
such access to be afforded without charge but only upon reasonable request in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee, the Certificateholders and the Certificate Insurer and shall be and
remain the sole and exclusive property of the Trustee; provided, however, that
the Master Servicer and each Servicer shall be entitled to setoff against, and
deduct from, any such funds any amounts that are properly due and payable to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
Section 3.9 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE POLICIES.
(a) For each Loan, the Master Servicer shall enforce any obligation of
the Servicers under the related Servicing Agreements to maintain or cause to be
maintained standard fire and casualty insurance and, where applicable, flood
insurance, all in accordance with the provisions of the related Servicing
Agreements. It is understood and agreed that such insurance shall be with
insurers meeting the eligibility requirements set forth in the applicable
Servicing Agreement and that no earthquake or other additional insurance is to
be required of any Mortgagor or to be maintained on property acquired in respect
of a defaulted loan, other than pursuant to such applicable laws and regulations
as shall at any time be in force and as shall require such additional insurance.
(b) Pursuant to Section 3.23, 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
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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.
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of the
Trustee, the Certificateholders and the Certificate Insurer all claims under any
insurance policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Distribution Account upon receipt, except that any amounts realized that are to
be applied to the repair or restoration of the related Mortgaged Property as a
condition precedent to the presentation of claims on the related Loan to the
insurer under any applicable insurance policy need not be so deposited (or
remitted).
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any primary mortgage
insurance policy 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.
(b) The Master Servicer agrees to cause each Servicer (to the extent
required under the related Servicing Agreement) to present, on behalf of the
Trustee, the Certificateholders and the Certificate Insurer, claims to the
insurer under any primary mortgage insurance policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
primary mortgage insurance policies respecting defaulted Loans. Pursuant to
Section 3.22 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 Sections 3.22 or 3.24,
as applicable.
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Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE POLICIES
AND DOCUMENTS.
The Trustee or the applicable Custodian, shall retain possession and
custody of the originals (to the extent available) of any primary mortgage
insurance policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect of
the Certificates have been distributed in full and the Master Servicer otherwise
has fulfilled its obligations under this Agreement, the Trustee or the Custodian
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement and the Custodial
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the Trustee or the Custodian, upon the execution or receipt thereof the
originals of any primary mortgage insurance policies, any certificates of
renewal, and such other documents or instruments that constitute Loan Documents
that come into the possession of the Master Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED LOANS. The Master Servicer
shall cause each Servicer (to the extent required under the related Servicing
Agreement) to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, all in accordance with the applicable
Servicing Agreement.
Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
(a) In addition to the Master Servicer's right to receive its Master
Servicing Fee, all income and gain realized from any investment of funds in the
Distribution Account shall be for the benefit of the Master Servicer as
compensation. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including any
Prepayment Charges) shall be retained by the applicable Servicer and shall not
be deposited in the Protected Account. The Master Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
(b) The amount of the aggregate compensation payable as set forth in
Section 3.14(a) (the "Master Servicing Compensation") to the Master Servicer in
respect of any Distribution Date shall be reduced in accordance with Section
3.20.
Section 3.15 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO Property
in respect of any related Loan, the deed or certificate of sale shall be issued
to the Trustee, or to its nominee, on behalf of the Certificateholders and the
Certificate Insurer. 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
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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 "prohibited
transactions" 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 "net income from foreclosure property" or cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances and other unreimbursed advances as well as any
unpaid Servicing Fees from Liquidation Proceeds received in connection with the
final disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Servicing Fees may be reimbursed or paid, as the
case may be, prior to final disposition, out of any net rental income or other
net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the
Distribution Account on the next succeeding Remittance Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Trustee, the Certificate
Insurer and the Rating Agencies on or before March 15 of each year, commencing
on March 15, 2005, an Officer's Certificate signed by a Servicing Officer,
certifying that with respect to the period ending December 31 of the prior year:
(i) such Servicing Officer has reviewed the activities of such Master Servicer
during the preceding calendar year or portion thereof and its performance under
this Agreement, (ii) to the best of such Servicing Officer's knowledge, based on
such review, such Master Servicer has performed and fulfilled its duties,
responsibilities and obligations under this Agreement in all material respects
throughout such year, or, if there has
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been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof, (iii) nothing has come to the attention of such
Servicing Officer to lead such Servicing Officer to believe that any Servicer
has failed to perform any of its duties, responsibilities and obligations under
its Servicing Agreement in all material respects throughout such year, or, if
there has been a material default in the performance or fulfillment of any such
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at the
Master Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT. If the
Master Servicer has, during the course of any fiscal year, directly serviced any
of the Loans, then the Master Servicer at its expense shall cause a nationally
recognized firm of independent certified public accountants to furnish a
statement to the Trustee, the Certificate Insurer, the Rating Agencies and the
Seller on or before March 15 of each year, commencing on March 15, 2005 to the
effect that, with respect to the most recently ended fiscal year, such firm has
examined certain records and documents relating to the Master Servicer's
performance of its servicing obligations under this Agreement and pooling and
servicing and trust agreements in material respects similar to this Agreement
and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
Xxxxxxx Mac or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master Servicer's activities have been conducted
in compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac
requires it to report. Copies of such statements shall be provided to any
Certificateholder upon request by the Master Servicer, or by the Trustee at the
expense of the Master Servicer if the Master Servicer shall fail to provide such
copies (unless (i) the Master Servicer shall have failed to provide the Trustee
with such statement or (ii) the Trustee shall be unaware of the Master
Servicer's failure to provide such statement). If such report discloses
exceptions that are material, the Master Servicer shall advise the Trustee
whether such exceptions have been or are susceptible of cure, and shall take
prompt action to do so.
Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.
(a) Within 15 days after each Distribution Date, the Master Servicer
shall, in accordance with industry standards, file with the Commission via the
Electronic Data Gathering and Retrieval System ("XXXXX"), a Form 8-K (or any
comparable form containing the same or comparable information or other
information mutually agreed upon) with a copy of the statement to be furnished
by the Securities Administrator to the Certificateholders for such Distribution
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Date as an exhibit thereto. Prior to January 30, 2005, the Master Servicer
shall, in accordance with industry standards, file a Form 15 Suspension Notice
with respect to the Trust Fund, if applicable. Prior to March 30, 2005 and
annually thereafter (if required), the Master Servicer shall file a Form 10-K,
in substance conforming to industry standards, with respect to the Trust Fund.
Such Form 10-K shall include, to the extent available, as exhibits (i) each
applicable Servicer's annual statement of compliance described under the related
Servicing Agreement, (ii) each applicable Servicer's accountant's report
described under the related Servicing Agreement, (iii) the Master Servicer's
accountant's report described in Section 3.17, if applicable, in each case to
the extent timely delivered, if applicable, to the Master Servicer, and (iv) a
written certification signed by an officer of the Master Servicer that complies
with the Xxxxxxxx-Xxxxx Act of 2002 as in effect on the date of this Agreement
and the February 3, 2003, Statement by the Staff of the Division of Corporation
Finance of the Commission Regarding Compliance by Asset-Backed Issuers with
Exchange Act Rules 13a-14 and 15d-14 as in effect as of the date of this
Agreement. The Depositor hereby grants to the Master Servicer a limited power of
attorney to execute and file each Form 8-K and Form 10-K on behalf of the
Depositor. Such power of attorney shall continue until either the earlier of (i)
receipt by the Master Servicer from the Depositor of written termination of such
power of attorney and (ii) the termination of the Trust Fund. The Depositor and
the Trustee each agree to promptly furnish to the Master Servicer, from time to
time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Loans as the Master
Servicer reasonably deems appropriate to prepare and file all necessary reports
with the Commission. The Master Servicer shall cooperate with the Depositor in
connection with any additional filings with respect to the Trust Fund as the
Depositor deems necessary under the Exchange Act. Copies of all reports filed by
the Master Servicer under the Exchange Act shall be sent to the Depositor.
(b) The Master Servicer shall indemnify and hold harmless the
Depositor, the Trustee and their respective officers, directors and Affiliates
from and against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of the Master Servicer's
obligations under this Section 3.18 or the Master Servicer's negligence, bad
faith or willful misconduct in connection therewith. Fees and expenses incurred
by the Master Servicer in connection with this Section 3.18 shall not be
reimbursable from the Trust Fund.
Section 3.19 UCC. The Depositor shall file any financing statements or
amendments thereto required by any change in the Uniform Commercial Code. The
Depositor agrees to file continuation statements for any such Uniform Commercial
Code financing statements which the Seller or the Depositor filed in connection
with the Trust Fund.
Section 3.20 OBLIGATION OF THE MASTER SERVICER IN RESPECT OF
COMPENSATING INTEREST. The Master Servicer shall deposit in the Distribution
Account not later than each Distribution Account Deposit Date an amount equal to
the lesser of (i) the aggregate amounts required to be paid by the Servicers
under the Servicing Agreements with respect to Compensating Interest on the
related Loans for the related Distribution Date, and not so paid by the related
Servicers and (ii) the Master Servicing Compensation for such Distribution Date
without reimbursement therefor.
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Section 3.21 RESERVED.
Section 3.22 PROTECTED ACCOUNTS.
(a) The Master Servicer shall enforce the obligation of each Servicer
to establish and maintain a Protected Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Loan by
Loan basis, into which accounts shall be deposited within 48 hours (or as of
such other time specified in the related Servicing Agreement) of receipt all
collections of principal and interest on any Loan and with respect to any REO
Property received by a Servicer, including Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, Subsequent Recoveries and advances made from the
Servicer's own funds (less servicing compensation as permitted by the applicable
Servicing Agreement in the case of any Servicer) and all other amounts to be
deposited in the Protected Account. Each Servicer is hereby authorized to make
withdrawals from and deposits to the related Protected Account for purposes
required or permitted by the related Servicing Agreement. To the extent provided
in the related Servicing Agreement, the Protected Account shall be held in a
depository institution and segregated on the books of such institution in the
name of the Trustee for the benefit of Certificateholders and the Certificate
Insurer.
(b) To the extent provided in the related Servicing Agreement, amounts
on deposit in a Protected Account may be invested in Eligible Investments in the
name of the Trustee for the benefit of Certificateholders and the Certificate
Insurer and, except as provided in the preceding paragraph, not commingled with
any other funds, such Eligible Investments to mature, or to be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Distribution Account, and shall be
held until required for such deposit. The income earned from Eligible
Investments made pursuant to this Section 3.22 shall be paid to the related
Servicer under the applicable Servicing Agreement, and the amounts 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 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.
(c) To the extent provided in the related Servicing Agreement and
subject to this Article III, on or before each Servicer Remittance Date, the
related Servicer shall withdraw or shall cause to be withdrawn from the
Protected Accounts and shall immediately deposit or cause to be deposited in the
Distribution Account amounts representing the following collections and payments
(other than with respect to principal of or interest on the Loans due on or
before the Cut-Off Date):
(i) Monthly Payments on the Loans received or any related portion
thereof advanced by the Servicers pursuant to the Servicing Agreements
which were due on or before the related Due Date, net of the amount thereof
comprising the Servicing Fees;
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(ii) 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
(iii) Any amount to be used as an Advance.
(d) Withdrawals may be made from an Account only to make remittances as
provided in Section 3.22(c), 3.23 and 3.24 or as otherwise provided in the
Servicing Agreements; to reimburse the Master Servicer or a Servicer for
Advances which have been recovered by subsequent collection from the related
Mortgagor; to remove amounts deposited in error; to remove fees, charges or
other such amounts deposited on a temporary basis; or to clear and terminate the
account at the termination of this Agreement in accordance with Section 9.1. As
provided in Sections 3.22(c) and 3.23(b) or as otherwise provided in the
Servicing Agreements certain amounts otherwise due to the Servicers may be
retained by them and need not be deposited in the Distribution Account.
Section 3.23 DISTRIBUTION ACCOUNT.
(a) The Securities Administrator shall establish and maintain, for the
benefit of the Certificateholders and the Certificate Insurer, the Distribution
Account as a segregated trust account or accounts. The Master Servicer shall
deposit in the Distribution Account as identified by the Master Servicer and as
received by the Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any Advance and any amounts in respect of Prepayment Interest
Shortfalls or Curtailment Shortfalls;
(iii) Any Insurance Proceeds, Liquidation Proceeds or Subsequent
Recoveries received by or on behalf of the Master Servicer;
(iv) The Purchase Price with respect to any Loans purchased by the
Seller pursuant to Section 2.3 and all proceeds of any Loans or property
acquired with respect thereto purchased by the Terminator pursuant to
Section 9.1;
(v) Any amounts required to be deposited by the Master Servicer or any
Servicer with respect to losses on investments of deposits in an Account;
and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Distribution Account pursuant to this
Agreement.
(b) All amounts deposited to the Distribution Account shall be held by
the Securities Administrator in trust for the benefit of the Certificateholders
and the Certificate Insurer 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
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or assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges, need not be credited by
the Master Servicer or the related Servicer to the Distribution Account. In the
event that the Master Servicer shall deposit or cause to be deposited to the
Distribution Account any amount not required to be credited thereto, the
Securities Administrator, upon receipt of a written request therefor signed by a
Servicing Officer of the Master Servicer, shall promptly transfer such amount to
the Master Servicer, any provision herein to the contrary notwithstanding.
(c) The Distribution Account shall constitute a trust account of the
Trust Fund segregated on the books of the Securities Administrator and held by
the Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Securities Administrator (whether made directly,
or indirectly through a liquidator or receiver of the Securities Administrator).
The amount at any time credited to the Distribution Account shall be invested in
the name of the Master Servicer, in such Eligible Investments selected by the
Master Servicer or deposited in demand deposits with such depository
institutions as selected by the Master Servicer, provided that time deposits of
such depository institutions would be an Eligible Investment. All Eligible
Investments shall mature or be subject to redemption or withdrawal on or before,
and shall be held until, the Distribution Date following the date of the
investment of such funds (the "Investment Withdrawal Distribution Date") if the
obligor for such Eligible Investment is the Securities Administrator or, if such
obligor is any other Person, the Business Day preceding such 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 Certificateholders shall be entitled to the priorities
afforded to such a trust account (in addition to a claim against the estate of
the Securities Administrator) as provided by 12 U.S.C. ss. 92a(e), and
applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
Section 3.24 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT.
(a) The Securities Administrator shall, from time to time on demand of
the Master Servicer make or cause to be made such withdrawals or transfers from
the Distribution Account as the Master Servicer has designated for such transfer
or withdrawal pursuant to the Servicing Agreements for the following purposes,
not in any order of priority:
(i) to reimburse the Master Servicer or any Servicer for any Advance
of its own funds, the right of the Master Servicer or a Servicer to
reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular Loan (including, for this purpose, the Purchase
Price therefor, Insurance Proceeds and Liquidation
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Proceeds) which represent late payments or recoveries of the principal of
or interest on such Loan respecting which such Advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Loan for amounts
expended by the Master Servicer or such Servicer in good faith in
connection with the restoration of the related Mortgaged Property which was
damaged by an Uninsured Cause or in connection with the liquidation of such
Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Loan for insured expenses incurred with
respect to such Loan and to reimburse the Master Servicer or such Servicer
from Liquidation Proceeds from a particular Loan for Liquidation Expenses
incurred with respect to such Loan;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Loan, the amount which it or such Servicer would have
been entitled to receive under subclause (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;
(v) to pay the Master Servicer or any Servicer from the Purchase Price
for any Loan, the amount which it or such Servicer would have been entitled
to receive under subclause (vii) of this Subsection (a) as servicing
compensation;
(vi) to reimburse the Master Servicer or any Servicer for any
Nonrecoverable Advance, after a Realized Loss has been allocated with
respect to the related Loan if the Advance or Servicing Advance has not
been reimbursed pursuant to clause (i);
(vii) to pay the Master Servicing Fee to the Master Servicer, the
Servicing Fee to the Servicers (to the extent such Servicing Fee was not
retained by the Servicer pursuant to the related Servicing Agreement), the
Credit Risk Management Fee to the Credit Risk Manager for such Distribution
Date and the amount of any income or gain realized from investments of
funds on deposit in the Distribution Account pursuant to Section 3.14
hereof and to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to Sections 3.3,
6.3; 8.5 and 10.01.
(viii) to reimburse or pay any Servicer any such amounts as are due
thereto under the applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(ix) to reimburse the Trustee, the Custodian and the Securities
Administrator for expenses, costs and liabilities, if any, incurred by or
reimbursable to such parties pursuant to this Agreement;
(x) to remove amounts deposited in error; and
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(xi) to clear and terminate the Distribution Account pursuant to
Section 9.1.
(b) The Master Servicer shall keep and maintain separate accounting, on
a Loan by Loan basis, for the purpose of accounting for any reimbursement from
the Distribution Account pursuant to subclauses (i) through (v), inclusive, or
with respect to any such amounts which would have been covered by such
subclauses had the amounts not been retained by the Master Servicer without
being deposited in the Distribution Account under Section 3.23(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Distribution Amount to the Holders of the Certificates
and to the Certificate Insurer in accordance with Section 4.1.
Section 3.25 RESERVE FUND.
(a) No later than the Closing Date, the Securities Administrator shall
establish and maintain a separate, segregated trust account titled, "Reserve
Fund, Xxxxx Fargo Bank, N.A., in trust for the registered holders of Deutsche
Mortgage Securities, Inc. Mortgage Loan Trust, Series 2004-5, Mortgage
Pass-Through Certificates." Any payments received by the Securities
Administrator under the Cap Contract will be deposited into the Reserve Fund for
the benefit of the Class A-1 Certificates.
(b) On each Distribution Date as to which there is a Net WAC Rate
Carryover Amount payable to the Class A Certificates or the Class M
Certificates, the Securities Administrator will deposit into the Reserve Fund
the amounts described in Section 4.1(a)(iii)(E), rather than distributing such
amounts to the Class CE Certificateholders. On each such Distribution Date, the
Securities Administrator shall hold all such amounts for the benefit of the
Holders of the Class A Certificates, other than the Class A-IO Certificates, and
the Class M Certificates, and will distribute such amounts to the Holders of the
Class A Certificates, other than the Class A-IO Certificates, and the Class M
Certificates in the amounts and priorities set forth in the last paragraph of
Section 4.1(a)(iii).
(c) For federal and state income tax purposes, the Class CE
Certificateholders will be deemed to be the owners of the Reserve Fund and all
amounts deposited into the Reserve Fund shall be treated as amounts distributed
by REMIC III to the Holders of the Class CE Certificates. Upon the termination
of the Trust Fund, or the payment in full of the Class A Certificates and the
Class M Certificates, all amounts remaining on deposit in the Reserve Fund will
be released by the Trust Fund and distributed to the Class CE Certificateholders
or their designees. The Reserve Fund will be part of the Trust Fund but not part
of any REMIC and any payments to the Holders of the Class A Certificates or the
Class M Certificates of Net WAC Rate Carryover Amounts will not be payments with
respect to a "regular interest" in a REMIC within the meaning of Code Section
860(G)(a)(1).
(d) By accepting a Class CE Certificate, each Class CE
Certificateholder hereby agrees that the Securities Administrator will deposit
into the Reserve Fund the amounts described above on each Distribution Date
rather than distributing such amounts to the Class CE Certificateholders. By
accepting a Class CE Certificate, each Class CE Certificateholder further
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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.
(e) The Securities Administrator shall direct any depository
institution maintaining the Reserve Fund to invest the funds in such account in
one or more Permitted 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 Reserve Fund. In no event shall the
Securities Administrator be liable for any investments made pursuant to this
clause (e).
(f) For federal tax return and information reporting, the right of the
Class A-1 Certificateholders to receive payments from the Reserve Fund in
respect of any Net WAC Rate Carryover Amount shall be assigned a value of
$3,250,000.00. For federal tax return and information reporting, the right of
the Class A Certificateholders (other than the Class A-1 Certificateholders and
Class A-IO Certificateholders) and the Class M Certificateholders to receive
payments from the Reserve Fund in respect of any Net WAC Rate Carryover Amount
shall be assigned a value of zero.
Section 3.26 PREPAYMENT PENALTY VERIFICATION.
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 "Verification Agent")
will perform such verification duties and will use its best efforts to issue its
findings in a report (the "Verification Report") 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
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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 Servicer's 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.
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 (if any) 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.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS
Section 4.1 DISTRIBUTIONS TO CERTIFICATEHOLDERS.
(a) On each Distribution Date, the Securities Administrator, to the
extent on deposit therein and based solely upon the Remittance Report for such
Distribution Date, shall withdraw from the Distribution Account the Available
Distribution Amount for such Distribution Date and distribute to each
Certificateholder and to the Certificate Insurer, as applicable, by wire
transfer in immediately available funds for the account of the Certificateholder
and the Certificate Insurer, as applicable, 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) or the Certificate Insurer, as applicable, as specified by each
such Certificateholder or the Certificate Insurer, as applicable, and at the
address of such Holder appearing in the Certificate Register, with respect to
such Certificateholder, and to the Certificate Insurer Account, with respect to
the Certificate Insurer, from the amount so withdrawn and to the extent of such
Available Distribution Amount, such Certificateholder's Percentage Interest of
the following amounts and in the following order and priority:
(i) On each Distribution Date, the Securities Administrator shall
distribute the Interest Remittance Amount for such Distribution Date in the
following order of priority:
(A) first, to the Certificate Insurer, the Certificate Insurer
Premium;
(B) second, to the holders of each Class of Senior Certificates,
the related Senior Interest Distribution Amount for such Distribution
Date and such Class to the extent of the Interest Remittance Amount
for such Distribution Date remaining after payment of the Certificate
Insurer Premium to the Certificate Insurer on a pro rata basis based
on the entitlement of each such Class;
(C) third, to the Certificate Insurer, any unpaid Reimbursement
Amounts related to interest draws on the Policy;
(D) fourth, to the holders of the Class M-1 Certificates, the
Interest Distribution Amount allocable to the Class M-1 Certificates
to the extent of the Interest Remittance Amount for such Distribution
Date remaining after payment of the Certificate Insurer Premium and
any Reimbursement Amounts to the Certificate Insurer and the
distribution of the Senior Interest Distribution Amount to the Senior
Certificates;
(E) fifth, to the holders of the Class M-2 Certificates, the
Interest Distribution Amount allocable to the Class M-2 Certificates
to the
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extent of the Interest Remittance Amount for such Distribution Date
remaining after payment of the Certificate Insurer Premium and any
Reimbursement Amounts to the Certificate Insurer, distribution of the
Senior Interest Distribution Amount to the Senior Certificates and
distribution of the Interest Distribution Amount to the Class M-1
Certificates;
(F) sixth, to the holders of the Class M-3 Certificates, the
Interest Distribution Amount allocable to the Class M-3 Certificates
to the extent of the Interest Remittance Amount for such Distribution
Date remaining after payment of the Certificate Insurer Premium and
any Reimbursement Amounts to the Certificate Insurer, distribution of
the Senior Interest Distribution Amount to the Senior Certificates,
and distribution of the Interest Distribution Amount to the Class M-1
Certificates and Class M-2 Certificates;
(ii) On each Distribution Date, the Securities Administrator shall
distribute the Principal Distribution Amount to the holders of the
Certificates, other than the Class A-IO, Class CE, Class P and Class R
Certificates, in the following order of priority:
(A) The Senior Principal Distribution Amount will be distributed
as follows:
(1) first, sequentially, to the Class A-5A Certificates and
Class A-5B Certificates, in that order, an amount up to the Class
A-5 Lockout Distribution Amount for that Distribution Date, until
the Certificate Principal Balance of each such Class has been
reduced to zero; and
(2) second, any remaining Senior Principal Distribution
Amount after the distributions described above, sequentially:
(a) to the Class A-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to
zero;
(b) to the Class A-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to
zero;
(c) to the Class A-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to
zero;
(d) to the Class A-4A Certificates and Class A-4B
Certificates, concurrently, 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;
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(e) to the Class A-5A Certificates, until the
Certificate Principal Balance thereof has been reduced to
zero; and
(f) to the Class A-5B Certificates, until the
Certificate Principal Balance thereof has been reduced to
zero.
(B) The Certificate Insurer will be entitled to receive on each
Distribution Date, to the extent of the portion of the Principal
Distribution Amount remaining after the Senior Principal Distribution
Amount has been distributed, any Reimbursement Amounts not repaid from
the Interest Remittance Amount pursuant to Section 4.1(a)(i)(C) above.
(C) Holders of the Class M-1 Certificates will be entitled to
receive on each Distribution Date, to the extent of the portion of the
Principal Distribution Amount remaining after the sum of the Senior
Principal Distribution Amount and any Reimbursement Amount has been
distributed, the Class M-1 Principal Distribution Amount in reduction
of the Certificate Principal Balance thereof, until the Certificate
Principal Balance of the Class M-1 Certificates has been reduced to
zero.
(D) Holders of the Class M-2 Certificates will be entitled to
receive on each Distribution Date, to the extent of the portion of the
Principal Distribution Amount remaining after the sum of the Senior
Principal Distribution Amount, any Reimbursement Amount and the Class
M-1 Principal Distribution Amount has been distributed, the Class M-2
Principal Distribution Amount in reduction of the Certificate
Principal Balance thereof, until the Certificate Principal Balance of
the Class M-2 Certificates has been reduced to zero.
(E) Holders of the Class M-3 Certificates will be entitled to
receive on each Distribution Date, to the extent of the portion of the
Principal Distribution Amount remaining after the sum of the Senior
Principal Distribution Amount, any Reimbursement Amount, the Class M-1
Principal Distribution Amount and the Class M-2 Principal Distribution
Amount has been distributed, the Class M-3 Principal Distribution
Amount in reduction of the Certificate Principal Balance thereof,
until the Certificate Principal Balance of the Class M-3 Certificates
has been reduced to zero.
(iii) On each Distribution Date, the Securities Administrator shall
distribute any Net Monthly Excess Cashflow for such Distribution Date in
the following order of priority:
(A) to the holders of the Class A Certificates (other than the
Class A-IO Certificates) and Class M Certificates, an amount equal to
the
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Extra Principal Distribution Amount for such Distribution Date in
accordance with clause (iv) below;
(B) to the Holders of the Class M-1 Certificates, an amount equal
to the Interest Carry Forward Amount allocable to such Class of
Certificates for such Distribution Date;
(C) to the Holders of the Class M-2 Certificates, an amount equal
to the Interest Carry Forward Amount allocable to such Class of
Certificates for such Distribution Date;
(D) to the Holders of the Class M-3 Certificates, an amount equal
to the Interest Carry Forward Amount allocable to such Class of
Certificates for such Distribution Date;
(E) to the Reserve Fund, an amount equal to (a) with respect to
the Class A Certificates, (other than the Class A-1 Certificates and
the Class A-IO Certificates) and the Class M Certificates, the sum of
the related Net WAC Rate Carryover Amounts, if any, and (b) with
respect to the Class A-1 Certificates, the amount by which the sum of
the Net WAC Rate Carryover Amounts with respect to the Class A-1
Certificates exceeds the sum of any amounts received by the Securities
Administrator with respect to the Cap Contract since the prior
Distribution Date;
(F) to the Holders of the Class M-1, Class M-2 and Class M-3
Certificates, in that order, the Allocated Realized Loss Amount
allocable to each such Class for such Distribution Date;
(G) to the Holders of the Class CE Certificates, the Interest
Distribution Amount and any Overcollateralization Reduction Amount for
such Distribution Date; and
(H) to the Holders of the Class R Certificates, in respect of
Component R-3, any remaining amounts; provided that if such
Distribution Date is the Distribution Date immediately following the
expiration of the latest Prepayment Charge term as identified on the
Loan Schedule or any Distribution Date thereafter, then any such
remaining amounts will be distributed first, to the Holders of the
Class P Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; and second, to the Holders of the Class R
Certificates.
On each Distribution Date, the Securities Administrator, after making
the required distributions of interest and principal to the Certificates as
described in Section 4.1(a)(i) and (ii) above, and after the distribution of the
Net Monthly Excess Cashflow as described in Section 4.1(a)(iii), the Securities
Administrator will withdraw from the Reserve Fund the amounts on
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deposit therein and distribute such amounts to the Class A Certificates (other
than the Class A-IO Certificates) and the Class M Certificates in respect of any
Net WAC Rate Carryover Amounts due to each such Class in the following manner
and order of priority: FIRST, concurrently to the Class A Certificates, other
than the Class A-IO Certificates, on a pro rata basis, the related Net WAC Rate
Carryover Amount remaining unpaid for such Distribution Date for each such
Class; SECOND, to the Class M-1 Certificates, the related Net WAC Rate Carryover
Amount remaining unpaid for such Distribution Date for such Class; THIRD, to the
Class M-2 Certificates, the related Net WAC Rate Carryover Amount remaining
unpaid for such Distribution Date for such Class; and FOURTH, to the Class M-3
Certificates, the related Net WAC Rate Carryover Amount remaining unpaid for
such Distribution Date for such Class.
(iv) (A) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Extra Principal
Distribution Amount shall be distributed in the following order of
priority:
(1) first, sequentially, to the Holders of the Class A-5A
Certificates and Class A-5B Certificates, in that order, up to
the Class A-5 Lockout Distribution Amount, and then sequentially
to the Holders of the Class A-1, Class X-0, Xxxxx X-0, Class A-4,
Class A-5A and Class A-5B Certificates, in that order, until the
Certificate Principal Balance of each such Class has been reduced
to zero; provided that any distribution of the Extra Principal
Distribution Amount to the Class A-4 Certificates pursuant to
this clause (1) shall be made to the Class A-4A Certificates and
Class A-4B Certificates concurrently, on a pro rata basis, based
on the Certificate Principal Balance of each such Class;
(2) second, to the Holders of the Class M-1 Certificates,
until the Certificate Principal Balance of such Class has been
reduced to zero;
(3) third, to the Holders of the Class M-2 Certificates,
until the Certificate Principal Balance of such Class has been
reduced to zero; and
(4) fourth, to the Holders of the Class M-3 Certificates,
until the Certificate Principal Balance of such Class has been
reduced to zero.
(B) On each Distribution Date (a) on or after the Stepdown Date
and (b) on which a Trigger Event is not in effect, the Extra Principal
Distribution Amount shall be distributed in the following order of
priority:
(1) first, the lesser of (x) the Extra Principal
Distribution Amount and (y) the Class A-5 Lockout Distribution
Amount, shall be distributed sequentially to the Class A-5A
Certificates and Class X-0X
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Xxxxxxxxxxxx, in that order, until the Certificate Principal
Balance of each such Class has been reduced to zero;
(2) second, the lesser of (x) the Extra Principal
Distribution Amount and (y) the Senior Principal Distribution
Amount, shall be distributed sequentially to the Holders of the
Class A-1, Class X-0, Xxxxx X-0, Class A-4, Class A-5A and Class
A-5B Certificates, in that order, until the Certificate Principal
Balance of each such Class has been reduced to zero; provided
that any distribution to the Class A-4 Certificates pursuant to
this clause shall be made to the Class A-4A Certificates and
Class A-4B Certificates concurrently, on a pro rata basis, based
on the Certificate Principal Balance of each such class;
(3) third, the lesser of (x) the excess of (i) the Extra
Principal Distribution Amount over (ii) the amount distributed to
the Holders of the Class A Certificates pursuant to clauses (1)
and (2) above, and (y) the Class M-1 Principal Distribution
Amount, shall be distributed to the Holders of the Class M-1
Certificates, until the Certificate Principal Balance thereof has
been reduced to zero;
(4) fourth, the lesser of (x) the excess of (i) the Extra
Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class A Certificates pursuant
to clauses (1) and (2) above and to the Holders of the Class M-1
Certificates pursuant to clause (3) above, and (y) the Class M-2
Principal Distribution Amount, shall be distributed to the
Holders of the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(5) fifth, the lesser of (x) the excess of (i) the Extra
Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class A Certificates pursuant
to clauses (1) and (2) above, to the Holders of the Class M-1
Certificates pursuant to clause (3) above and to the Holders of
the Class M-2 Certificates pursuant to clause (4) above, and (y)
the Class M-3 Principal Distribution Amount, shall be distributed
to the Holders of the Class M-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero.
(b) On each Distribution Date, the Securities Administrator shall
withdraw any amounts then on deposit in the Distribution Account that represent
Prepayment Charges and shall distribute such amounts to the Class P
Certificateholders.
(c) The final distribution of principal of each Certificate (and the
final distribution with respect to the Class R Certificate upon termination of
the Trust Fund) shall be payable in the manner provided in Section 4.1 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 the next succeeding paragraph or Section 9.1.
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Whenever, on the basis of Curtailments, Payoffs and Monthly Payments on
the Loans and Insurance Proceeds and Liquidation Proceeds received and expected
to be received during the applicable Prepayment Period, the Securities
Administrator believes that the entire remaining unpaid Certificate Principal
Balance of any Class of Certificates shall become distributable on the next
Distribution Date, the Securities Administrator shall, as early as practicable
prior to 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,
the Certificate Insurer and to each Rating Agency a notice to the effect that:
(i) it is expected that funds sufficient to make such final
distribution shall be available in the Distribution Account on such
Distribution Date, and
(ii) if such funds are available, (A) such final distribution shall be
payable on such Distribution Date, but only upon presentation and surrender
of such Certificate at the office or agency of the Securities Administrator
maintained for such purpose (the address of which shall be set forth in
such notice), and (B) no interest shall accrue on such Certificate after
such Distribution Date.
(d) Each Holder of an Insured Certificate, by its acceptance of such
Insured Certificate, hereby agrees that, in the event any distribution is made
to any Holder of such Insured Certificate from amounts paid under the Policy,
(i) the Certificate Insurer shall be subrogated in the manner herein provided to
the rights of the Holder of such Insured Certificate to receive, from amounts on
deposit in the Distribution Account, the distributions allocable to principal
and interest that would have been distributable to such Holder if no
distribution had been made under the Policy; and (ii) in addition to the rights
of the Holders of the Insured Certificates that the Certificate Insurer may
exercise in accordance with the provisions of Section 12.1, the Certificate
Insurer may exercise any option, vote, right, or power with respect to each
Insured Certificate for which amounts paid under the Policy (plus interest at
the Late Payment Rate thereon from the date such payment was made) are
outstanding.
Section 4.2 ALLOCATION OF REALIZED LOSSES.
Prior to each Distribution Date, the Master Servicer, based solely on
the information provided by the related Servicer, shall determine the amount of
Realized Losses, if any, with respect to each Loan.
Realized Losses on the Loans for any Distribution Date will first,
cause a reduction in Net Monthly Excess Cash Flow for that Distribution Date and
second, cause a reduction in the Certificate Principal Balance of the Class CE
Certificates for that Distribution Date, until the Certificate Principal Balance
thereof has been reduced to zero. To the extent that Realized Losses on a
Distribution Date cause the aggregate Certificate Principal Balance of the Class
A Certificates (other than the Class A-IO Certificates), Class M and Class P
Certificates, after taking into account all distributions on such Distribution
Date to exceed the aggregate Principal Balance of the Loans as of the last day
of the related Due Period, such excess will be allocated first, to the Class M-3
Certificates; second, to the Class M-2 Certificates; and third, to the Class M-1
Certificates in each case to reduce the Certificate Principal Balance thereof
until it has been
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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 Class M Certificates on any Distribution Date.
Any allocation of Realized Losses to a Class M Certificate on any
Distribution Date shall be made by reducing the Certificate Principal Balance
thereof by the amount so allocated as of such Distribution Date after all
distributions on such Distribution Date have been made. Any allocation of
Realized Losses to a Class CE Certificates shall be made by reducing the amount
otherwise payable in respect thereof pursuant to Section 4.1(a)(iii)(G). No
allocations of Realized Losses shall be made to the Senior Certificates or the
Class P Certificates. Notwithstanding anything to the contrary in this
Agreement, in no event will the Certificate Principal Balance of any Class M
Certificate be reduced more than once in respect of any particular amount both
(i) allocable to the Class M Certificate in respect of Realized Losses and (ii)
payable as principal to the Holder of the Certificate from Net Monthly Excess
Cashflow.
As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date. All Realized Losses and all other losses allocated to a Class of
Certificates hereunder will be allocated among the Certificates of such Class in
proportion to the Percentage Interests evidenced thereby.
Any Subsequent Recoveries collected by the Servicers will be
distributed as part of the Available Distribution Amount in accordance with the
priorities described under Section 4.1. In addition, the Certificate Principal
Balance of each Class of Mezzanine Certificates that has been reduced by the
allocation of a Realized Loss to such Certificate will be increased, in order of
seniority, by the amount of such Subsequent Recoveries, but only to the extent
that such Certificate has not been reimbursed for the amount of such Realized
Loss (or a portion thereof) allocated to such Certificate from Net Monthly
Excess Cashflow. 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.
All reductions in the Certificate Principal Balance of a Certificate
effected by distributions of principal or allocations of Realized Losses with
respect to Loans made on any Distribution Date shall be binding upon all Holders
of such Certificate and of any Certificate issued upon the registration of
transfer or exchange therefor or in lieu thereof, whether or not such
distribution is noted on such Certificate.
The principal portion of all Realized Losses on the Loans shall be
allocated on each Distribution Date first, to REMIC I Regular Interest LTI-1 and
REMIC I Regular Interest LTI-P, until the Uncertificated Principal Balances have
been reduced to zero and then to REMIC I Regular Interest LTI-IO-1, REMIC I
Regular Interest LTI-IO-2, REMIC I Regular Interest LTI-IO-3 and REMIC I Regular
Interest LTI-IO-4, until the Uncertificated Principal Balances have been reduced
to zero.
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All Realized Losses on the REMIC I Regular Interests shall be allocated
on each Distribution Date to the following REMIC II Regular Interests in the
specified percentages, as follows: first, to Uncertificated Accrued Interest
payable to the REMIC II Regular Interest LTII-AA and REMIC II Regular Interest
LTII-ZZ up to an aggregate amount equal to the REMIC II Interest Loss Allocation
Amount, 98% and 2%, respectively; second, to the Uncertificated Principal
Balances of the REMIC II Regular Interest LTII-AA and REMIC II Regular Interest
LTII-ZZ up to an aggregate amount equal to the REMIC II Principal Loss
Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC II Regular Interest LTII-AA, REMIC II Regular
Interest LTII-M3 and REMIC II Regular Interest LTII-ZZ, 98% 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M3 has been reduced to zero; fourth, to the Uncertificated
Principal Balances of REMIC II Regular Interest LTII-AA, REMIC II Regular
Interest LTII-M2 and REMIC II Regular Interest LTII-ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M2 has been reduced to zero; and fifth, to the Uncertificated
Principal Balances of REMIC II Regular Interest LTII-AA, REMIC II Regular
Interest LTII-M1 and REMIC II Regular Interest LTII-ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M1 has been reduced to zero.
Section 4.3 STATEMENTS TO CERTIFICATEHOLDERS.
On each Distribution Date, the Securities Administrator shall provide
or make available to each Certificateholder, the Certificate Insurer and the
Credit Risk Manager, a statement (each, a "Remittance Report") as to the
distributions made on such Distribution Date setting forth:
(i) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to principal and
the amount of the distribution made on such Distribution Date to the
Holders of the Class P Certificates allocable to Prepayment Charges;
(ii) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to interest;
(iii) the aggregate Servicing Fee received by each Servicer and Master
Servicing Fee received by the Master Servicer during the related Due
Period;
(iv) the number and aggregate Principal Balance of the Loans
delinquent one, two and three months or more;
(v) the (A) number and aggregate Principal Balance of Loans with
respect to which foreclosure proceedings have been initiated, and (B) the
number and aggregate Principal Balance of Mortgaged Properties acquired
through foreclosure, deed in lieu of foreclosure or other exercise of
rights respecting the Trustee's security interest in the Loans;
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(vi) the aggregate Principal Balance of the Loans as of the close of
business on the last day of the related Prepayment Period;
(vii) the aggregate amount of Principal Prepayments made during the
related Prepayment Period and the aggregate amount of any Prepayment
Charges received in respect thereof;
(viii) the amount of Realized Losses with respect to the Loans
allocable to the Certificates on the related Distribution Date and the
cumulative amount of Realized Losses incurred and allocated to the
Certificates since the Cut-Off Date;
(ix) 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;
(x) the amount of funds advanced by each Servicer and the Master
Servicer for such Distribution Date;
(xi) the total amount of Payoffs and Curtailments received during the
related Prepayment Period;
(xii) With respect to any Loan that became an REO Property during the
preceding calendar month, the loan number of such Loan, the unpaid
principal balance and the Scheduled Principal Balance of such Loan;
(xiii) to the extent provided by the Servicer, the book value of any
REO Property as of the close of business on the last Business Day of the
calendar month preceding the Distribution Date;
(xiv) the aggregate amount of extraordinary Trust Fund expenses
withdrawn from the Distribution Account for such Distribution Date;
(xv) the 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;
(xvi) the aggregate amount of any Prepayment Interest Shortfalls for
such Distribution Date, to the extent not covered by payments by the Master
Servicer pursuant to Section 3.20;
(xvii) the aggregate amount of Relief Act Interest Shortfalls for such
Distribution Date;
(xviii) the Required Overcollateralization Amount and the Credit
Enhancement Percentage for such Distribution Date;
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(xix) the Overcollateralization Increase Amount, if any, for such
Distribution Date; (xx) the Overcollateralization Reduction Amount, if any,
for such Distribution Date;
(xxi) the Net WAC Rate Carryover Amount, if any, for such Distribution
Date;
(xxii) the Net WAC Rate Carryover Amount, if any, outstanding after
reimbursements therefor on such Distribution Date and any amounts received
under the Cap Contract;
(xxiii) the respective Pass-Through Rates applicable to the Class A
Certificates, the Class M Certificates and the Class CE Certificates for
such Distribution Date;
(xxiv) the amount of any deposit to the Reserve Fund contemplated by
Section 3.25;
(xxv) the balance of the Reserve Fund prior to the deposit or
withdrawal of any amounts on such Distribution Date;
(xxvi) the amount of any withdrawal from the Reserve Fund pursuant to
the last paragraph of Section 4.1(a)(iii);
(xxvii) the balance of the Reserve Fund after all deposits and
withdrawals on such Distribution Date; and
(xxviii) the amount of any Guaranteed Distribution paid on such
Distribution Date, the amount of any Reimbursement Amount paid to the
Certificate Insurer on such Distribution Date pursuant to Section
4.1(a)(i)(C) and 4.1(a)(ii)(B) and the amount of any Reimbursement Amount
remaining after giving effect to any such payments to the Certificate
Insurer.
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, the
Certificate Insurer and the Rating Agencies via the Securities Administrator's
internet website. The Securities Administrator's internet website shall
initially be located at http:\\xxx.xxxxxxx.xxx and assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at 0-000-000-0000. Parties that are unable to use the above
distribution option are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Securities Administrator shall have the right to change the way such statements
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
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In the case of information furnished pursuant to subclauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount per single
Certificate of the relevant Class.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall furnish to the Certificate Insurer and to
each Person who at any time during the calendar year was a Holder of a Regular
Interest Certificate a statement containing the information set forth in
subclauses (i) and (ii) above, aggregated for such calendar year or applicable
portion thereof during which such person was a Certificateholder. Such
obligation of the Securities Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Securities Administrator pursuant to any requirements of the
Code as from time to time are in force.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall furnish to the Certificate Insurer and to
each Person who at any time during the calendar year was a Holder of a Residual
Certificate a statement setting forth the amount, if any, actually distributed
with respect to the Residual Certificates, as appropriate, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder.
The Securities Administrator shall, upon request, furnish to the
Certificate Insurer and 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 Certificate
Insurer and the Certificateholder, or otherwise with respect to the purposes of
this Agreement, all such reports or information to be provided at the expense of
the Certificate Insurer or the Certificateholder, as applicable, in accordance
with such reasonable and explicit instructions and directions as the
Certificateholder may provide.
On each Distribution Date the Securities Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each
Class of Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Securities Administrator and Bloomberg.
Section 4.4 ADVANCES.
If the Monthly Payment on a Loan or a portion thereof is delinquent as
of its Due Date, other than as a result of interest shortfalls due to bankruptcy
proceedings or application of the Relief Act, and the related Servicer fails to
make an advance of the delinquent amount pursuant to the related Servicing
Agreement, the Master Servicer shall deposit in the Distribution Account, from
its own funds or from amounts on deposit in the Distribution Account that are
held for future distribution, not later than the Distribution Account Deposit
Date immediately preceding the related Distribution Date an amount equal to such
delinquency, net of the Servicing Fee and Master Servicing Fee for such Loan
except to the extent the Master Servicer determines any such Advance to be
nonrecoverable from Liquidation Proceeds, Insurance Proceeds or future payments
on the Loan for which such Advance was made. Any amounts held for future
distribution and so used shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the
Distribution Account on or before any future Distribution Account Deposit Date
to the extent that the Available Distribution
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Amount for the related Distribution Date (determined without regard to Advances
to be made on the Distribution Account Deposit Date) shall be less than the
total amount that would be distributed to the Classes of Certificateholders
pursuant to Section 4.1 on such Distribution Date if such amounts held for
future distributions had not been so used to make Advances. Subject to the
foregoing, the Master Servicer shall continue to make such Advances through the
date that the related Servicer is required to do so under its Servicing
Agreement. In the event the Master Servicer elects not to make an Advance
because the Master Servicer deems such Advance nonrecoverable pursuant to this
Section 4.4, on the Distribution Account Deposit Date, the Master Servicer shall
present an Officer's Certificate to the Trustee and the Certificate Insurer (i)
stating that the Master Servicer elects not to make an Advance in a stated
amount and (ii) detailing the reason it deems the advance to be nonrecoverable.
Section 4.5 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement, the Trustee and
the Securities Administrator shall comply with all federal withholding
requirements respecting payments to Certificateholders of interest or original
issue discount that the Trustee and the Securities Administrator reasonably
believe are applicable under the Code. The consent of Certificateholders shall
not be required for such withholding. In the event the Securities Administrator
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall indicate the amount withheld to
such Certificateholders.
Section 4.6 REMIC DISTRIBUTIONS.
(a) On each Distribution Date, the following amounts, in the following
order of priority and in accordance with the Remittance Report to the extent of
funds available therefor, shall be distributed by REMIC I to REMIC II on account
of the REMIC I Regular Interests or withdrawn from the Distribution Account and
distributed to the Holders of the Class R Certificates, as the case may be:
(i) first, to the Holders of REMIC I Regular Interest LTI-IO-1, REMIC
I Regular Interest LTI-IO-2, REMIC I Regular Interest LTI-IO-3 and REMIC I
Regular Interest LTI-IO-4, in an amount equal to (A) the Uncertificated
Accrued Interest for such Distribution Date, plus (B) any amounts in
respect thereof remaining unpaid from previous Distribution Dates and
second, to the Holders of REMIC I Regular Interest LTI-1 and REMIC I
Regular Interest LTI-P, in an amount equal to (A) the Uncertificated
Accrued Interest for such Distribution Date, plus (B) any amounts in
respect thereof remaining unpaid from previous Distribution Dates;
(ii) to the Holders of the REMIC I Regular Interest LTI-P, on the
Distribution Date immediately following the expiration of the latest
Prepayment Charge term as identified on the Loan Schedule or any
Distribution Date thereafter until $100 has been distributed pursuant to
this clause;
(iii) on each Distribution Date, the remainder of the Available
Distribution Amount for such Distribution Date after the distributions made
pursuant to clause (i)
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and clause (ii) above, first, to the Holders of REMIC I Regular Interest
LTI-1 until the Uncertificated Principal Balance of such REMIC I Regular
Interest is reduced to zero, and second, to the Holders of REMIC I Regular
Interest LTI-IO-1, REMIC I Regular Interest LTI-IO-2, REMIC I Regular
Interest LTI-IO-3 and REMIC I Regular Interest LTI-IO-4, until the
Uncertificated Principal Balance of each such REMIC I Regular Interest is
reduced to zero; and
(iv) to the Holders of the Class R Certificates (in respect of
Component R-1), any amounts remaining after the distributions pursuant to
clauses (i) through (iii) above.
On each Distribution Date, all amounts representing Prepayment Charges
in respect of the Loans received during the related Prepayment Period will be
distributed by REMIC I to the Holders of REMIC I Regular Interest LTI-P. The
payment of the foregoing amounts to the Holders of REMIC I Regular Interest
LTI-P shall not reduce the Uncertificated Principal Balance thereof.
(b) On each Distribution Date, the following amounts, in the following
order of priority and in accordance with the Remittance Report to the extent of
funds available therefor, shall be distributed by REMIC II to REMIC III on
account of the REMIC II Regular Interests or withdrawn from the Distribution
Account and distributed to the Holders of the Class R Certificates, as the case
may be:
(i) first, to the Holders of REMIC II Regular Interest LTII-IO-A and
REMIC Regular Interest LTII-IO-B, in an amount equal to (A) the
Uncertificated Accrued Interest for such REMIC II Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from previous Distribution Dates and then to Holders of REMIC II Regular
Interest LTII-AA, REMIC II Regular Interest LTII-A1, REMIC II Regular
Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular
Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular
Interest LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II Regular
Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular
Interest LTII-M3, REMIC II Regular Interest LTII-ZZ and REMIC II Regular
Interest LTII-P, pro rata, in an amount equal to (A) the Uncertificated
Accrued Interest for each such REMIC II Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from previous Distribution Dates. Amounts payable as Uncertificated Accrued
Interest in respect of REMIC II Regular Interest LTII-ZZ shall be reduced
and deferred when the REMIC II Overcollateralization Amount is less than
the REMIC II Overcollateralization Target Amount, by the lesser of (x) the
amount of such difference and (y) the REMIC II Regular Interest LTII-ZZ
Maximum Interest Deferral Amount and such amount will be payable to the
Holders of REMIC II Regular Interest LTII-A1, REMIC II Regular Interest
LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest
LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular Interest
LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II Regular Interest
LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest
LTII-M3 in the same proportion as the Overcollateralization Increase Amount
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is allocated to the Corresponding Certificates, provided, however, that the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-ZZ is
increased by such amount;
(ii) second, to the Holders of REMIC II Regular Interests, in an
amount equal to the remainder of the Available Distribution Amount for such
Distribution Date after the distributions made pursuant to clause (i)
above, allocated as follows:
(A) 98.00% of such remainder (other than amounts payable under clause
(C) below), to the Holders of REMIC II Regular Interest LTII-AA and REMIC II
Regular Interest LTII-P, until the Uncertificated Principal Balance of such
REMIC II Regular Interest is reduced to zero, provided, however, that the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-P shall not
be reduced until the Distribution Date in September 2009 or any Distribution
Date thereafter, at which point such amount shall be distributed to REMIC II
Regular Interest LTII-P, until $100 has been distributed pursuant to this
clause;
(B) 2.00% of such remainder (other than amounts payable under clause
(C) below) first, to the Holders of REMIC II Regular Interest LTII-A1, REMIC II
Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular
Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular Interest
LTII-A5A, REMIC II Regular Interest LTII-A5B, REMIC II Regular Interest LTII-M1,
REMIC II Regular Interest LTII-M2 and REMIC II Regular Interest LTII-M3, 1.00%
of and in the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Principal Balances of such
REMIC II Regular Interests are reduced to zero; to the Holders of REMIC II
Regular Interest LTII-ZZ, until the Uncertificated Principal Balance of such
REMIC II Regular Interest is reduced to zero; then
(C) any remaining amount to the Holders of the Class R Certificates (in
respect of Component R-2); and
(iii) third, to REMIC II Regular Interest LTII-P, 100% of the amount
paid in respect of REMIC I Regular Interest LTI-P;
provided, however, that (i) 98.00% and (ii) 2.00% of any principal
payments that are attributable to an Overcollateralization Reduction Amount
shall be allocated to Holders of (i) REMIC II Regular Interest LTII-AA and REMIC
II Regular Interest LTII-P, in that order and (ii) REMIC II Regular Interest
LTII-ZZ, respectively; provided that REMIC II Regular Interest LTII-P shall not
be reduced until the Distribution Date in September 2009, at which point such
amount shall be distributed to REMIC II Regular Interest LTII-P, until $100 has
been distributed pursuant to this clause.
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ARTICLE V
THE CERTIFICATES
Section 5.1 THE CERTIFICATES.
(a) Each of the Certificates shall be substantially in the forms
annexed hereto as exhibits, and shall, on original issue, be executed and
authenticated by the Securities Administrator and delivered by the Trustee to or
upon the receipt of a written order to authenticate from the Depositor
concurrently with the sale and assignment to the Trustee of the Trust Fund. The
Certificates shall be issuable in Authorized Denominations.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trust Fund by a Responsible Officer of the Securities
Administrator. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, authorized to
sign on behalf of the Securities Administrator shall bind the Trust Fund,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such Certificate. No Certificate shall be
entitled to any benefit under this Agreement or be valid for any purpose, unless
such Certificate shall have been manually authenticated by the Securities
Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Subject to Section 5.3, the Class A Certificates and Class M Certificates shall
be Book-Entry Certificates. On the Closing Date, the Class CE, Class P and Class
R Certificates shall not be Book-Entry Certificates but shall be issued in fully
registered certificate form.
(b) Neither the Trustee nor the Securities Administrator shall have any
liability to the Trust Fund and shall be indemnified by the Trust Fund for, any
cost, liability or expense incurred by them arising from a registration of a
Certificate or transfer, pledge sale or other disposition of a Certificate in
reliance upon a certification, Officer's Certificate, affidavit, ruling or
Opinion of Counsel described in this Article V.
Section 5.2 CERTIFICATES ISSUABLE IN CLASSES; DISTRIBUTIONS OF
PRINCIPAL AND INTEREST; AUTHORIZED DENOMINATIONS. The aggregate principal amount
of Certificates that may be authenticated and delivered under this Agreement is
limited to the aggregate Principal Balance of the Loans as of the Cut-Off Date,
as specified in the Preliminary Statement to this Agreement, except for
Certificates authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Certificates pursuant to Section 5.3. Such
aggregate principal amount shall be allocated among one or more Classes having
designations, types of interests, initial per annum Pass-Through Rates, initial
Certificate Principal Balances and Last Scheduled Distribution Dates as
specified in the Preliminary Statement to this Agreement. The aggregate
Percentage Interest of each Class of Certificates of which the Certificate
Principal Balance equals zero as of the Cut-Off Date that may be authenticated
and delivered under this Agreement is limited to 100%. Certificates shall be
issued in Authorized Denominations.
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Section 5.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES. (a)
The Securities Administrator shall cause to be kept at its Corporate Trust
Office a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office of the Securities Administrator maintained for such
purpose pursuant to the foregoing paragraph for certificate transfer and
surrender purposes, and, in the case of the Class CE Certificates, the Class P
Certificates or the Class R Certificates, upon satisfaction of the conditions
set forth in Sections 5.3(d), (e) and (f) below, as applicable, the Securities
Administrator on behalf of the Trust shall execute, authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be exchanged
for other Certificates in Authorized Denominations and the same aggregate
Percentage Interests, upon surrender of the Certificates to be exchanged at any
such office or agency. Whenever any Certificates are so surrendered for
exchange, the Securities Administrator shall execute, authenticate and deliver
the Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trustee or the Securities
Administrator) be duly endorsed by, or be accompanied by a written instrument of
transfer satisfactory to the Trustee and the Securities Administrator duly
executed by, the Holder thereof or his attorney duly authorized in writing.
(b) Except as provided herein, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of such Certificates may not be transferred by the
Trustee or the Securities Administrator except to another Depository; (ii) the
Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Certificates; (iii)
ownership and transfers of registration of such Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee and the Securities
Administrator shall for all purposes deal with the Depository as representative
of the Certificate Owners of the Certificates for purposes of exercising the
rights of Holders under this Agreement, and requests and directions for and
votes of such representative shall not be deemed to be inconsistent if they are
made with respect to different Certificate Owners; (vi) the Trustee and the
Securities Administrator may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct participants of the Depository shall have no rights under this Agreement
under or with respect to any of the Certificates held on their behalf by the
Depository, and the Depository may be treated by the Trustee, the Securities
Administrator and either the Trustee's or the Securities Administrator's agents,
employees, officers and directors as the absolute owner of the Certificates for
all purposes whatsoever.
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All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
that it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The parties hereto are
hereby authorized to execute a Letter of Representations with the Depository or
take such other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms of
any such Letter of Representation and this Agreement, the terms of this
Agreement shall control.
(c) If (i)(x) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
discharge properly its responsibilities as Depository and (y) the Securities
Administrator or the Depositor is unable to locate a qualified successor, (ii)
the Depositor, at its sole option, with the consent of the Securities
Administrator, elects to terminate the book-entry system through the Depository
or (iii) after the occurrence of a Master Servicer Event of Default, the
Certificate Owners of the Book-Entry Certificates representing Percentage
Interests of such Classes aggregating not less than 66% advise the Securities
Administrator and Depository through the Depository Participants in writing that
the continuation of a book-entry system through the Depository is no longer in
the best interests of the Certificate Owners, the Securities Administrator shall
notify all Holders of Book-Entry Certificates of the occurrence of any such
event and of the availability of definitive, fully registered Certificates
("DEFINITIVE CERTIFICATES") to Certificate Owners requesting the same. Upon
surrender to the Securities Administrator of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Securities Administrator shall, at the Depositor's expense, in
the case of (i) and (ii) above, or the Master Servicer's expense, in the case of
(iii) above, execute on behalf of the Trust and authenticate the Definitive
Certificates. None of the Depositor, the Master Servicer, the Trustee or the
Securities Administrator shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, the Trustee,
the Securities Administrator, the Master Servicer and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No Transfer of a Class CE Certificate, Class P Certificate or Class
R Certificate shall be made unless such Transfer is made pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "1933 ACT") and any applicable state securities laws or is exempt from the
registration requirements under the 1933 Act and such state securities laws. In
the event of any such transfer in reliance upon an exemption from the 1933 Act
and such state securities laws, in order to assure compliance with the 1933 Act
and such state securities laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective Transferee shall each certify
to the Trustee and the Securities Administrator in writing the facts surrounding
the Transfer in substantially the forms set forth in EXHIBIT D (the "TRANSFEROR
CERTIFICATE") and (x) deliver a letter in substantially the form of either
EXHIBIT E (the "INVESTMENT LETTER") or EXHIBIT F (the "RULE 144A LETTER") or (y)
there shall be delivered to the Trustee, the Depositor and the Securities
Administrator an Opinion of Counsel acceptable to and in form reasonably
satisfactory to the Trustee, the Depositor and the Securities
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Administrator that such Transfer may be made pursuant to an exemption from the
Securities Act, which Opinion of Counsel shall not be an expense of the
Depositor, the Seller, the Master Servicer, the Securities Administrator or the
Trustee. Each Holder of a Class CE Certificate, Class P Certificate or Class R
Certificate desiring to effect such Transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, the Seller, the Securities Administrator
and the Master Servicer against any liability that may result if the Transfer is
not so exempt or is not made in accordance with such federal and state laws.
(e) No transfer of a Class CE Certificate, Class P Certificate or Class
R Certificate or any interest therein shall be made to any Plan subject to ERISA
or Section 4975 of the Code (each, a "PLAN"), any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring such Certificates
with "Plan Assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("PLAN ASSETS"), as certified
by each such Transferee in the form of EXHIBIT G, unless the Securities
Administrator is provided with an Opinion of Counsel for the benefit of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator and
the Master Servicer and on which they may rely which establishes to the
satisfaction of each of them that the purchase of such Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Master Servicer, the Trustee, the Securities
Administrator, any Servicer or the Trust Fund to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Master Servicer, the Trustee, the
Securities Administrator or the Trust Fund. Neither a certification nor an
Opinion of Counsel will be required in connection with the initial transfer of
any such Certificate by the Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall have deemed to have
represented that such affiliate is not a Plan or a Person investing Plan Assets)
and the Trustee and the Securities Administrator shall be entitled to
conclusively rely upon a representation (which, upon the request of the Trustee
or the Securities Administrator, shall be a written representation) from the
Depositor of the status of such transferee as an affiliate of the Depositor.
Each Transferee of a Class M Certificate will be deemed to have
represented by virtue of its purchase or holding of such Certificate (or
interest therein) that either (a) such Transferee is not a Plan or purchasing
such Certificate with Plan Assets, (b) it has acquired and is holding such
Certificate in reliance on Prohibited Transaction Exemption ("PTE") 94-84 or FAN
97-03, as amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58,
65 Fed. Reg. 67765 (November 13, 2000) and PTE 2002-41 67 Fed. Reg. 54487
(August 22, 2002) (the "EXEMPTION"), and that it understands that there are
certain conditions to the availability of the Exemption including that such
Certificate must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by a Rating Agency or (c) the following conditions are
satisfied: (i) such Transferee is an insurance company, (ii) the source of funds
used to purchase or hold such Certificate (or interest therein) is an "insurance
company general account" (as defined in U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (iii) the conditions set forth
in Sections I and III of PTCE 95-60 have been satisfied.
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If any Class M, Class CE, Class P or Class R Certificate or any
interest therein is acquired or held in violation of the provisions of this
Section 5.3(e), the next preceding permitted beneficial owner will be treated as
the beneficial owner of that Certificate retroactive to the date of transfer to
the purported beneficial owner. Any purported beneficial owner whose acquisition
or holding of any such Certificate or interest therein was effected in violation
of the provisions of the two preceding paragraphs shall indemnify and hold
harmless the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the Trust from and against any and all liabilities, claims,
costs or expenses incurred by those parties as a result of that acquisition or
holding.
(f) Each Transferee of a Class R Certificate shall be deemed by the
acceptance or acquisition of the related Ownership Interest to have agreed to be
bound by the following provisions and to have irrevocably appointed the
Depositor or its designee as its attorney-in-fact to negotiate the terms of any
mandatory sale under clause (v) below and to execute all instruments of transfer
and to do all other things necessary in connection with any such sale, and the
rights of each Transferee of a Class R Certificate are expressly subject to the
following provisions:
(i) Each such Transferee shall be a Permitted Transferee and shall
promptly notify the Securities Administrator of any change or impending
change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class R
Certificate unless such Ownership Interest is a PRO RATA undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Class R Certificate, the Securities Administrator shall as a
condition to registration of the transfer, require delivery to it, in form
and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of EXHIBIT C hereto from the
proposed Transferee to the effect that such Transferee is a Permitted
Transferee and that it is not acquiring its Ownership Interest in the
Class R Certificate that is the subject of the proposed transfer as a
nominee, trustee or agent for any Person who is not a Permitted
Transferee; and
(B) a covenant of the proposed Transferee to the effect that the
proposed Transferee agrees to be bound by and to abide by the transfer
restrictions applicable to the Class R Certificates.
(iv) Any attempted or purported transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section shall
be absolutely null and void and shall vest no rights in the purported
Transferee. If any purported Transferee shall, in violation of the
provisions of this Section, become a Holder of a Class R Certificate, then
the prior Holder of such Class R Certificate that is a Permitted Transferee
shall, upon discovery that the registration of transfer of such Class R
Certificate was not in fact permitted by this Section, be restored to all
rights as Holder
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thereof retroactive to the date of registration of transfer of such Class R
Certificate. The Securities Administrator shall be under no liability to
any Person for any registration of transfer of a Class R Certificate that
is in fact not permitted by this Section or for making any distributions
due on such Class R Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement
so long as the Securities Administrator received the documents specified in
clause (iii). The Securities Administrator shall be entitled to recover
from any Holder of a Class R Certificate that was in fact not a Permitted
Transferee at the time such distributions were made all distributions made
on such Class R Certificate. Any such distributions so recovered by the
Securities Administrator shall be distributed and delivered by the
Securities Administrator to the prior Holder of such Class R Certificate
that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Securities Administrator shall have
the right but not the obligation, without notice to the Holder of such
Class R Certificate or any other Person having an Ownership Interest
therein, to notify the Depositor to arrange for the sale of such Class R
Certificate. The proceeds of such sale, net of commissions (which may
include commissions payable to the Depositor or its affiliates in
connection with such sale), expenses and taxes due, if any, will be
remitted by the Securities Administrator to the previous Holder of such
Class R Certificate that is a Permitted Transferee, except that in the
event that the Securities Administrator determines that the Holder of such
Class R Certificate may be liable for any amount due under this Section or
any other provisions of this Agreement, the Securities Administrator may
withhold a corresponding amount from such remittance as security for such
claim. The terms and conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Securities Administrator and it
shall not be liable to any Person having an Ownership Interest in a Class R
Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Securities Administrator upon
receipt of reasonable compensation will provide to the Internal Revenue
Service, and to the persons specified in Sections 860E(e)(3) and (6) of the
Code, information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of Class R interests to Disqualified
Organizations.
The foregoing provisions of this Section shall cease to apply to
transfers occurring on or after the date on which there shall have been
delivered to the Securities Administrator, in form and substance satisfactory to
the Securities Administrator, (i) written notification from each Rating Agency
that the removal of the restrictions on transfer set forth in this Section will
not cause such Rating Agency to downgrade its rating of the Certificates and
(ii) an Opinion of Counsel to the effect that such removal will not cause any
REMIC created hereunder to fail to qualify as a REMIC. The Holder of the Class R
Certificate issued hereunder, while not a Disqualified Organization, is the Tax
Matters Person.
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(g) No service charge shall be made for any registration of transfer or
exchange of Certificates of any Class, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be canceled by the Securities Administrator and disposed of pursuant to
its standard procedures.
Section 5.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Trustee or the
Securities Administrator, or (ii) the Trustee or the Securities Administrator
receives evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Securities
Administrator such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the 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 like Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.4, the Trustee or the Securities Administrator
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. Any replacement Certificate issued pursuant to
this Section 5.4 shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost or
stolen Certificate shall be found at any time.
Section 5.5 PERSONS DEEMED OWNERS.
The Depositor, the Securities Administrator, the Master Servicer, the
Trustee, the Certificate Insurer 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 Section 4.1
and for all other purposes whatsoever, and none of the Depositor, the Securities
Administrator, the Master Servicer, the Trustee, the Certificate Insurer or any
agent of the Depositor, the Securities Administrator, the Master Servicer, the
Trustee or the Certificate Insurer shall be affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, MASTER SERVICER AND THE CREDIT RISK MANAGER
Section 6.1 LIABILITY OF THE DEPOSITOR AND THE MASTER SERVICER.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor and
Master Servicer and undertaken hereunder by the Depositor and the Master
Servicer herein.
Section 6.2 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE MASTER
SERVICER.
Subject to the following paragraph, the Depositor shall keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation. Subject to the following paragraph, the
Master Servicer shall keep in full effect its existence, rights and franchises
as a corporation under the laws of the jurisdiction of its formation. The
Depositor and the Master Servicer each shall obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Loans and to
perform its respective duties under this Agreement.
The Depositor or the Master Servicer may be merged or consolidated with
or into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, that the Rating Agencies' ratings of the Certificates
in effect immediately prior to such merger or consolidation will not be
qualified, reduced or withdrawn as a result thereof (as evidenced by a letter to
such effect from the Rating Agencies).
Section 6.3 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE MASTER
SERVICER, THE SERVICERS, THE SECURITIES ADMINISTRATOR AND OTHERS.
None of the Depositor, the Master Servicer, the Securities
Administrator, the Servicers or any of the directors, officers, employees or
agents of the Depositor, the Master Servicer, the Securities Administrator or
the Servicers shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement or the Servicing Agreements, or
for errors in judgment; provided, however, that this provision shall not protect
the Depositor, the Master Servicer, the Securities Administrator or any such
person against any breach of warranties, representations or covenants made
herein or in the Servicing Agreements, or against any specific liability imposed
on the Master Servicer, the Securities Administrator or the Servicers pursuant
hereto or pursuant to the Servicing Agreements, or against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by
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reason of reckless disregard of obligations and duties hereunder or under the
Servicing Agreements. The Depositor, the Master Servicer, the Securities
Administrator, the Servicers and any director, officer, employee or agent of the
Depositor, the Master Servicer, the Securities Administrator or the Servicers
may rely in good faith on any document of any kind which, PRIMA FACIE, is
properly executed and submitted by any Person respecting any matters arising
hereunder or under the Servicing Agreements. The Depositor, the Master Servicer,
the Servicers, the Securities Administrator, the Custodian and any director,
officer, employee or agent of the Depositor, the Master Servicer, the Servicers,
the Custodian or the Securities Administrator shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement, the Certificates or
any Servicing Agreement, or any loss, liability or expense incurred by any of
such Persons other than by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of its duties hereunder or by
reason of reckless disregard of its obligations and duties hereunder. None of
the Depositor, the Master Servicer, the Securities Administrator, the Custodian
or any Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement, the Custodial Agreement or the applicable Servicing Agreement
and, in its opinion, does not involve it in any expense or liability; provided,
however, that each of the Depositor, the Master Servicer, the Custodian and the
Securities Administrator may in its discretion undertake any such action which
it may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom (except any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer, the Custodian, the Servicers and the Securities
Administrator shall be entitled to be reimbursed therefor from the Distribution
Account as and to the extent provided in Article III, any such right of
reimbursement being prior to the rights of the Certificateholders and the
Certificate Insurer to receive any amount in the Distribution Account.
Section 6.4 LIMITATION ON RESIGNATION OF THE MASTER SERVICER.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect obtained at the expense of the
Master Servicer and delivered to the Trustee, the Certificate Insurer and the
Rating Agencies. No resignation of the Master Servicer shall become effective
until the Trustee or a successor Master Servicer shall have assumed the Master
Servicer's responsibilities, duties, liabilities (other than those liabilities
arising prior to the appointment of such successor) and obligations under this
Agreement.
Section 6.5 ASSIGNMENT OF MASTER SERVICING.
The Master Servicer may sell and assign its rights and delegate its
duties and obligations in its entirety as Master Servicer under this Agreement;
provided, however, that: (i) the purchaser
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or transferee accepting such assignment and delegation (a) shall be a Person
which shall be qualified to service mortgage loans for Xxxxxx Xxx or Xxxxxxx
Mac; (b) shall have a net worth of not less than $15,000,000 (unless otherwise
approved by each Rating Agency pursuant to clause (ii) below); (c) shall be
reasonably satisfactory to the Trustee (as evidenced in a writing signed by the
Trustee); and (d) shall execute and deliver to the Trustee an agreement, in form
and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective date
of such agreement; (ii) each Rating Agency shall be given prior written notice
of the identity of the proposed successor to the Master Servicer and each Rating
Agency's rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to the
Trustee an officer's certificate and an Opinion of Independent counsel, each
stating that all conditions precedent to such action under this Agreement have
been completed and such action is permitted by and complies with the terms of
this Agreement. No such assignment or delegation shall affect any liability of
the Master Servicer arising prior to the effective date thereof.
Section 6.6 RIGHTS OF THE DEPOSITOR IN RESPECT OF THE MASTER SERVICER.
The Master Servicer shall afford the Depositor and the Trustee, upon
reasonable notice, during normal business hours, access to all records
maintained by the Master Servicer in respect of the Master Servicer's rights and
obligations hereunder and access to officers of the Master Servicer responsible
for such obligations. Upon request, the Master Servicer shall furnish to the
Depositor and the Trustee the most recent financial statements of its parent and
such other information relating to the Master Servicer's capacity to perform its
obligations under this Agreement as it possesses. To the extent such information
is not otherwise available to the public, the Depositor and the Trustee shall
not disseminate any information obtained pursuant to the preceding two sentences
without the Master Servicer's written consent, except as required pursuant to
this Agreement or to the extent that it is appropriate to do so (i) in working
with legal counsel, auditors, taxing authorities or other governmental agencies
or (ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over the
Depositor, the Trustee or the Trust 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.
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Section 6.7 DUTIES OF THE CREDIT RISK MANAGER.
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 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 , the
Certificate Insurer 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.
Section 6.8 LIMITATION UPON LIABILITY OF THE CREDIT RISK MANAGER.
Neither the Credit Risk Manager, nor any of its directors, officers,
employees, or agents shall be under any liability to the Trustee, the
Certificateholders, the Certificate Insurer 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.
Section 6.9 REMOVAL OF THE CREDIT RISK MANAGER.
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 Manager's 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.
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ARTICLE VII
DEFAULT
Section 7.1 MASTER SERVICER EVENTS OF DEFAULT.
(a) "Master Servicer Event of Default," wherever used herein, means any
one of the following events:
(i) [Reserved];
(ii) any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Master Servicer contained in this Agreement, or the breach
by the Master Servicer of any representation and warranty contained in
Section 2.5, which continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Depositor or
the Trustee or to the Master Servicer, the Depositor and the Trustee by the
Holders of Certificates evidencing, in aggregate, not less than 25% of the
Voting Rights; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceeding, or for the winding-up or liquidation of its affairs,
shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
90 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to it or of or relating to all or substantially all of its
property; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) any failure of the Master Servicer to make any Advance on any
Distribution Account Deposit Date required to be made from its own funds
pursuant to Section 4.4 which continues unremedied until 3:00 p.m. New York
time on the Business Day immediately following the Distribution Account
Deposit Date.
If a Master Servicer Event of Default described in clauses (ii) through
(v) of this Section shall occur, then, and in each and every such case, so long
as such Master Servicer Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written
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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 Business Days subsequent to such
notice) to provide the Trustee with all documents and records requested by it to
enable it to assume the Master Servicer's (and, if applicable, the Securities
Administrator's) functions under this Agreement, and to cooperate with the
Trustee in effecting the termination of the Master Servicer's (and, if
applicable, the Securities Administrator's) responsibilities and rights under
this Agreement (provided, however, that the Master Servicer shall continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the date of such termination, whether in respect of Advances or
otherwise, and shall continue to be entitled to the benefits of Section 6.3,
notwithstanding any such termination, with respect to events occurring prior to
such termination). For purposes of this Section 7.1, the Trustee shall not be
deemed to have knowledge of a Master Servicer Event of Default unless a
Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless written notice of
any event which is in fact such a Master Servicer Event of Default is received
by the Trustee and such notice references the Certificates, the Trust or this
Agreement. The Trustee shall promptly notify the Rating Agencies of the
occurrence of a Master Servicer Event of Default of which it has knowledge as
provided above.
Section 7.2 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time the Master Servicer receives a notice of
termination, the Trustee shall be the successor in all respects to the Master
Servicer (and, if applicable, the Securities
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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 Servicer's obligations to make Advances no later than each Distribution
Date pursuant to Section 4.4; provided, however, that if the Trustee is
prohibited by law or regulation from obligating itself to make advances
regarding delinquent mortgage loans, then the Trustee shall not be obligated to
make Advances pursuant to Section 4.4; and provided further, that any failure to
perform such duties or responsibilities caused by the Master Servicer's failure
to provide information required by Section 7.1 shall not be considered a default
by the Trustee as successor to the Master Servicer hereunder. As compensation
therefor, the Trustee shall be entitled to the Master Servicing Fee and all
funds relating to the Loans, investment earnings on the Distribution Account and
all other 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.
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 Servicer's
(and, if applicable, the Securities Administrator's) responsibilities, duties
and liabilities hereunder. In connection with such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on Loans as it and such successor shall agree;
PROVIDED, HOWEVER, that no such compensation shall be in excess of that
permitted the Master Servicer (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.
Section 7.3 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination of the Master Servicer pursuant to Section 7.1
above or any appointment of a successor to the Master Servicer pursuant to
Section 7.2 above,
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the Trustee shall give prompt written notice thereof to the Certificate Insurer
and the Certificateholders at their respective addresses appearing in the
Certificate Register.
(b) Not later than the later of 60 days after the occurrence of any
event, which constitutes or which, with notice or lapse of time or both, would
constitute a Master Servicer Event of Default or five days after a Responsible
Officer of the Trustee becomes aware of the occurrence of such an event, the
Trustee shall transmit by mail to the Certificate Insurer and all Holders of
Certificates notice of each such occurrence, unless such default or Master
Servicer Event of Default shall have been cured or waived.
Section 7.4 WAIVER OF MASTER SERVICER EVENTS OF DEFAULT.
The Holders evidencing, in aggregate, not less than 66 2/3% of the
aggregate Percentage Interests of all Classes of Certificates affected by any
default or Master Servicer Event of Default hereunder may waive such default or
Master Servicer Event of Default; PROVIDED, HOWEVER, that a default or Master
Servicer Event of Default under clause (vi) of Section 7.1 may be waived only by
all of the Holders of the Regular Interest Certificates. Upon any such waiver of
a default or Master Servicer Event of Default, such default or Master Servicer
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Master Servicer Event of Default or impair any right consequent
thereon except to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 8.1 DUTIES OF TRUSTEE AND SECURITIES ADMINISTRATOR.
The Trustee, prior to the occurrence of a Master Servicer Event of
Default and after the curing or waiver of all Master Servicer Events of Default
which may have occurred, and the Securities Administrator each undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement as duties of the Trustee and the Securities Administrator,
respectively. During the continuance of a Master Servicer Event of Default, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee enumerated in
this Agreement shall not be construed as a duty.
Each of the Trustee and the Securities Administrator, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to it, which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement. If any such instrument is found not to conform on its face to the
requirements of this Agreement, the Trustee or the Securities Administrator, as
the case may be, shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, the Securities Administrator shall provide notice to the Trustee
thereof and the Trustee shall provide notice to the Certificateholders and the
Certificate Insurer.
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:
(i) Prior to the occurrence of a Master Servicer Event of Default, and
after the curing or waiver of all such Master Servicer Events of Default
which may have occurred with respect to the Trustee and at all times with
respect to the Securities Administrator, the duties and obligations of the
Trustee 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;
(ii) Neither the Trustee nor the Securities Administrator shall be
liable for an error of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee or an officer or officers of the
Securities Administrator,
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respectively, unless it shall be proved that the Trustee or the Securities
Administrator, respectively, was negligent in ascertaining the pertinent
facts; and
(iii) Neither the Trustee nor the Securities Administrator shall be
liable with respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the direction of the Holders of
Certificates evidencing, in aggregate, not less than 25% (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.
Section 8.2 CERTAIN MATTERS AFFECTING TRUSTEE AND SECURITIES
ADMINISTRATOR.
(a) Except as otherwise provided in Section 8.1:
(i) The Trustee and the Securities Administrator may request and rely
upon and shall be protected in acting or refraining from acting upon any
resolution, Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) The Trustee and the Securities Administrator may consult with
counsel of its selection and any advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or the
Securities Administrator, as the case may be, reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of a
Master Servicer Event of Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs;
(iv) Neither the Trustee nor the Securities Administrator shall be
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
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(v) Prior to the occurrence of a Master Servicer Event of Default
hereunder and after the curing or waiver of all Master Servicer Events of
Default which may have occurred with respect to the Trustee and at all
times with respect to the Securities Administrator, neither the Trustee nor
the Securities Administrator shall be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
the Holders of Certificates evidencing, in aggregate, not less than 25% of
the Trust Fund; PROVIDED, HOWEVER, that if the payment within a reasonable
time to the Trustee or the Securities Administrator of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, not reasonably assured to the Trustee or the
Securities Administrator by such Certificateholders, the Trustee or the
Securities Administrator, as applicable, may require reasonable indemnity
satisfactory to it against such expense, or liability from such
Certificateholders as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(vii) The Securities Administrator shall not be liable for any loss
resulting from the investment of funds held in the Distribution Account at
the direction of the Master Servicer pursuant to Section 3.23(c);
(viii) Neither the Trustee nor the Securities Administrator shall be
liable for any action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(ix) The Trustee shall not be deemed to have notice of any default or
Master Servicer Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Certificates
and this Agreement; and
(x) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, each agent, custodian and
other Person employed to act hereunder.
(b) 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
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contained herein or in the Cap Contract, the Trustee shall not be required to
make any payments to the counterparty under the Cap Contract.
(c) 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.
Section 8.3 TRUSTEE AND SECURITIES ADMINISTRATOR NOT LIABLE FOR
CERTIFICATES OR LOANS.
The recitals contained herein and in the Certificates (other than the
signature of the Securities Administrator, the authentication of the Securities
Administrator on the Certificates, the acknowledgments of the Trustee contained
in Article II and the representations and warranties of the Trustee in Section
8.12) shall be taken as the statements of the Depositor and neither the Trustee
nor the Securities Administrator assumes any responsibility for their
correctness. Neither the Trustee nor the Securities Administrator makes any
representations or warranties as to, and has no liability with respect to, the
validity or sufficiency of this Agreement (other than as specifically set forth
in Section 8.12) or of the Certificates (other than the signature of the
Securities Administrator and authentication of the Securities Administrator on
the Certificates), the Policy, or of any Loan or related document. The Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor or the Master Servicer in respect
of the Loans or deposited in or withdrawn from the Distribution Account.
Section 8.4 TRUSTEE, MASTER SERVICER AND SECURITIES ADMINISTRATOR MAY
OWN CERTIFICATES.
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
the Trustee, the Master Servicer or the Securities Administrator.
Section 8.5 FEES AND EXPENSES OF TRUSTEE AND SECURITIES ADMINISTRATOR.
The fees of the Trustee and the Securities Administrator hereunder and
of Xxxxx Fargo under the Custodial Agreement shall be paid in accordance with a
side letter agreement with the Master Servicer and at the sole expense of the
Master Servicer. In addition, the Trustee, the Securities Administrator, the
Custodian and any director, officer, employee or agent of the Trustee, the
Securities Administrator and the Custodian shall be indemnified by the Trust and
held harmless against any loss, liability or expense (including reasonable
attorney's fees and expenses) incurred by the Trustee or the Securities
Administrator in connection with any default administration to be performed by
the Trustee or the Securities Administrator pursuant to this Agreement or other
agreements related hereto and any claim or legal action or any pending or
threatened claim or legal action arising out of or in connection with the
acceptance or administration of its respective obligations and duties under this
Agreement or the Cap Contract,
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including other agreements related hereto, other than any loss, liability or
expense (i) for which the Trustee is indemnified by the Master Servicer, (ii)
that constitutes a specific liability of the Trustee or the Securities
Administrator pursuant to Section 10.1(g) or (iii) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
by the Trustee, or Securities Administrator, respectively, 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 attorney's fees and expenses) incurred by the Trustee by reason of
the Master Servicer's willful misfeasance, bad faith or gross negligence in the
performance of its duties under this Agreement or by reason of the Master
Servicer's reckless disregard of its obligations and duties under this
Agreement. Such indemnity shall survive the termination or discharge of this
Agreement and the resignation or removal of the Trustee. Any payment hereunder
made by the Master Servicer to the Trustee shall be from the Master Servicer's
own funds, without reimbursement from REMIC I therefor.
Section 8.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND SECURITIES
ADMINISTRATOR.
The Trustee and the Securities Administrator shall at all times be a
corporation or an association (other than the Depositor, the Seller, the Master
Servicer or any Affiliate of the foregoing) organized and doing business under
the laws of any state or the United States of America, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 (or a member of a bank holding company whose capital and
surplus is at least $50,000,000) and subject to supervision or examination by
federal or state authority. If such corporation or association publishes reports
of conditions at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of conditions so published. In case at any time the Trustee or the
Securities Administrator, as applicable, shall cease to be eligible in
accordance with the provisions of this Section, the Trustee or the Securities
Administrator, as applicable, shall resign immediately in the manner and with
the effect specified in Section 8.7.
Section 8.7 RESIGNATION AND REMOVAL OF TRUSTEE AND SECURITIES
ADMINISTRATOR.
The Trustee and the Securities Administrator may at any time resign
(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), to the Certificateholders and to the
Certificate Insurer. 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 Certificate Insurer, the Securities Administrator and the Master Servicer by
the Depositor. If no successor trustee or successor securities administrator
shall have been so appointed and have accepted appointment within 30
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days after the giving of such notice of resignation, the resigning Trustee or
Securities Administrator, as the case may be, may, at the expense of the Trust
Fund, petition any court of competent jurisdiction for the appointment of a
successor trustee, successor securities administrator, Trustee or Securities
Administrator, as applicable.
If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 8.6 and shall fail
to resign after written request 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.
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 Certificate Insurer, the Trustee (in
the case of the removal of the Securities Administrator), the Securities
Administrator (in the case of the removal of the Trustee) and the Master
Servicer by the Depositor. All costs and expenses incurred by the Trustee in
connection with its removal without cause hereunder shall be reimbursed to it by
the Trust Fund.
Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor trustee or successor securities
administrator pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or successor
securities administrator, as applicable, as provided in Section 8.8.
Notwithstanding anything to the contrary contained herein, the Master
Servicer and the Securities Administrator shall at all times be the same Person.
Section 8.8 SUCCESSOR TRUSTEE OR SECURITIES ADMINISTRATOR.
Any successor trustee or successor securities administrator appointed
as provided in Section 8.7 shall execute, acknowledge and deliver to the
Depositor and its predecessor trustee or predecessor securities administrator an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee or predecessor securities administrator
shall become effective and such successor trustee or successor securities
administrator without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee or securities
administrator herein. The predecessor trustee or
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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.
No successor trustee or successor securities administrator shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor trustee or successor securities administrator shall be eligible
under the provisions of Section 8.6 and the appointment of such successor
trustee or successor securities administrator shall not result in a downgrading
of any Class of Certificates by any Rating Agency, as evidenced by a letter from
each Rating Agency.
Upon acceptance of appointment by a successor trustee or successor
securities administrator as provided in this Section, the Depositor shall mail
notice of the succession of such trustee hereunder to the Certificate Insurer
and to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee or successor securities
administrator, the successor trustee or successor securities administrator shall
cause such notice to be mailed at the expense of the Depositor.
Section 8.9 MERGER OR CONSOLIDATION OF TRUSTEE OR SECURITIES
ADMINISTRATOR.
Any corporation or association into which the Trustee or the Securities
Administrator may be merged or converted or with which it may be consolidated or
any corporation or association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator shall be a
party, or any corporation or association succeeding to the business of the
Trustee or the Securities Administrator shall be the successor of the Trustee or
the Securities Administrator hereunder, provided such corporation or association
shall be eligible under the provisions of Section 8.6, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of 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
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notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.8 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to a defaulting Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to 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.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trust conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee, or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or co-trustee.
Section 8.11 APPOINTMENT OF OFFICE OR AGENCY.
The Securities Administrator shall appoint an office or agency in the
City of Minneapolis located at 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.
Section 8.12 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
The Trustee hereby represents and warrants to the Master Servicer, the
Securities Administrator, the Depositor and the Certificate Insurer as
applicable, as of the Closing Date, that:
(i) It is a banking corporation duly organized, validly existing and
in good standing under the laws of the State of New York.
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(ii) The execution and delivery of this Agreement by it, and the
performance and compliance with the terms of this Agreement by it, will not
violate its articles of incorporation or bylaws or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) It has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
its good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of it to perform its obligations under this
Agreement or its financial condition.
(vi) No litigation is pending or, to the best of its knowledge,
threatened against it, which would prohibit it from entering into this
Agreement or, in its good faith reasonable judgment, is likely to
materially and adversely affect either the ability of it to perform its
obligations under this Agreement or its financial condition.
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ARTICLE IX
TERMINATION
Section 9.1 TERMINATION UPON PURCHASE OR LIQUIDATION OF ALL LOANS.
(a) Subject to Section 9.2, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Securities Administrator and the Trustee (other than the obligations of the
Master Servicer to the Securities Administrator pursuant to Section 8.5 and of
the Master Servicer to pay Compensating Interest to the Securities Administrator
and the Securities Administrator to make payments in respect of 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 Terminator (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 expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The purchase by the Terminator of all Loans and each REO Property
remaining in REMIC I shall be at a price (the "Termination Price") equal to the
sum of (i) the aggregate Purchase Price of all the Loans included in REMIC I,
plus the fair market value of each REO Property, if any, included in REMIC I,
such valuation to be conducted by an appraiser mutually agreed upon by the
Terminator and the Securities Administrator in their reasonable discretion plus
(ii) any amounts due the Servicers and the Master Servicer in respect of unpaid
Servicing Fees, Master Servicing Fees and outstanding Advances and Servicing
Advances plus (iii) any amounts due to the Certificate Insurer in respect of
unpaid Certificate Insurer Premiums and unpaid Reimbursement Amounts.
(b) The Master Servicer shall have the right (the party exercising such
right, the "Terminator"), to purchase all of the Loans and each REO Property
remaining in 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
Terminator may elect to purchase all of the Loans and each REO Property
remaining in REMIC I pursuant to clause (i) above only if (A) the aggregate
Scheduled Principal Balance of the Loans and each REO Property remaining in the
Trust Fund at the time of such election is reduced to less than 10% of the
aggregate Scheduled Principal Balance of the Loans as of the Cut-Off Date and
(B) in the event termination would cause a draw on the Policy, the Certificate
Insurer provides written consent to such termination to the Terminator, the
Trustee and the Securities Administrator.
(c) Notice of the liquidation of the Certificates shall be given
promptly by the Securities Administrator by letter to the Certificateholders
mailed (a) in the event such notice is given in connection with the purchase of
the Loans and each REO Property by the Terminator, not earlier than the 15th day
and not later than the 25th day of the month next preceding the
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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 Terminator, the Terminator
shall deliver to the Securities Administrator for deposit in the Distribution
Account not later than the last Business Day of the month next preceding the
month of the final distribution on the Certificates an amount in immediately
available funds equal to the above-described Termination Price. The Securities
Administrator shall remit (a) to the Master Servicer from such funds deposited
in the Distribution Account (i) any amounts which the Master Servicer notifies
it in writing that the Master Servicer would be permitted to withdraw and retain
from the Distribution Account pursuant to Section 3.24 and (ii) any other
amounts otherwise payable by the Securities Administrator to the Master Servicer
from amounts on deposit in the Distribution Account pursuant to the terms of
this Agreement and notified by the Master Servicer in writing and (b) to the
Servicers, any amounts reimbursable to the Servicers pursuant to the Servicing
Agreements, in each case prior to making any final distributions pursuant to
Section 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 Terminator the Mortgage Files for the
remaining Loans, and the Trustee shall execute all assignments, endorsements and
other instruments necessary to effectuate such transfer in each case without
recourse, representation or warranty.
(d) Upon presentation of the Certificates by the Certificateholders on
the final Distribution Date, the Securities Administrator shall distribute to
each Certificateholder so presenting and surrendering its Certificates the
amount otherwise distributable on such Distribution Date in accordance with
Section 4.1 in respect of the Certificates so presented and surrendered. Any
funds not distributed to any Holder or Holders of Certificates being retired on
such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held in trust
and credited to the account of the appropriate non-tendering Holder or Holders.
If any Certificates as to which notice has been given pursuant to this Section
9.1 shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Securities Administrator shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall, directly or through an agent, mail a final notice to the
remaining non-tendering Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the funds in trust and of
contacting such Certificateholders shall be paid out of the assets remaining in
the trust funds. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Securities Administrator
shall
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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 Certificateholder's failure
to surrender its Certificate(s) for final payment thereof in accordance with
this Section 9.1. Any such amounts held in trust by the Securities Administrator
shall be held in an Eligible Account and the Securities Administrator may direct
any depository institution maintaining such account to invest the funds in one
or more Eligible Investments. All income and gain realized from the investment
of funds deposited in such accounts held in trust by the Securities
Administrator shall be for the benefit of the Securities Administrator;
PROVIDED, HOWEVER, that the Securities Administrator shall deposit in such
account the amount of any loss of principal incurred in respect of any such
Eligible Investment made with funds in such accounts immediately upon the
realization of such loss.
Immediately following the deposit of funds in trust hereunder in
respect of the Certificates, the Trust Fund shall terminate.
Section 9.2 ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event that the Terminator purchases all the Loans and each
REO Property or the final payment on or other liquidation of the last Loan or
REO Property remaining in REMIC I pursuant to Section 9.1, the Trust Fund shall
be terminated in accordance with the following additional requirements:
(i) The Securities Administrator shall specify the first day in the
90-day liquidation period in a statement attached to each REMIC's final Tax
Return pursuant to Treasury regulation Section 1.860F-1 and shall satisfy
all requirements of a qualified liquidation under Section 860F of the Code
and any regulations thereunder, as evidenced by an Opinion of Counsel
obtained by and at the expense of the Terminator;
(ii) During such 90-day liquidation period and, at or prior to the
time of making of the final payment on the Certificates, the Securities
Administrator shall sell all of the assets of REMIC I to the Terminator for
cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Securities Administrator shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand in the Trust Fund (other than cash retained
to meet claims), and the Trust Fund shall terminate at that time.
(b) At the expense of the requesting Terminator (or, if the Trust Fund
is being terminated as a result of the occurrence of the event described in
clause (ii) of the first paragraph of Section 9.1, at the expense of the Trust
Fund), the Terminator shall prepare or cause to be prepared the documentation
required in connection with the adoption of a plan of liquidation of each REMIC
pursuant to this Section 9.2.
(c) 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.
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ARTICLE X
REMIC PROVISIONS
Section 10.1 REMIC ADMINISTRATION.
(a) The Trustee shall elect to treat each 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 Regular Interests in REMIC I and Component R-1 shall be
designated as the Residual Interest in REMIC I. The REMIC II Regular Interest
shall be designated as the Regular Interests in REMIC II and Component R-2 shall
be designated as the Residual Interest in REMIC II. The Certificates (other than
the Class R Certificates) shall be designated as the Regular Interests in REMIC
III and Component R-3 shall be designated as the Residual Interest in REMIC III.
The Trustee shall not permit the creation of any "interests" in each Trust REMIC
(within the meaning of Section 860G of the Code) other than the REMIC I Regular
Interests, REMIC II Regular Interests and the interests represented by the
Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC created hereunder within the meaning of Section 860G(a)(9) of the Code.
(c) The Securities Administrator shall be reimbursed for any and all
expenses relating to any tax audit of the Trust Fund (including, but not limited
to, any professional fees or any administrative or judicial proceedings with
respect to 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 REMIC's 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.
(d) 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.
(e) 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
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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 Assumption as
required) and (iii) to the Internal Revenue Service the name, title, address and
telephone number of the person who shall serve as the representative of 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.
(f) To the extent in the control of the Trustee or the Securities
Administrator, each such Person (i) shall take such action and shall cause 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 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 "Adverse REMIC Event")
unless such action or inaction is permitted under this Agreement or the Trustee
and the Securities Administrator have received an Opinion of Counsel, addressed
to them (at the expense of the party seeking to take such action but in no event
at the expense of the Trustee or the Securities Administrator) to the effect
that the contemplated action will not, with respect to 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.
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(g) In the event that any tax is imposed on "prohibited transactions"
of any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
the "net income from foreclosure property" 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.
(h) 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.
(i) 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.
(j) 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 "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) The Securities Administrator shall apply for an employer
identification number with the Internal Revenue Service via a Form SS-4 or other
comparable method for 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.
Section 10.2 PROHIBITED TRANSACTIONS AND ACTIVITIES.
None of the Depositor, the Securities Administrator, the Master
Servicer or the Trustee shall sell, dispose of or substitute for any of the
Loans (except in connection with (i) the foreclosure of a Loan, including but
not limited to, the acquisition or sale of a Mortgaged Property acquired by deed
in lieu of foreclosure, (ii) the bankruptcy of 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
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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 "prohibited transactions" or "contributions" pursuant to the
REMIC Provisions.
Section 10.3 INDEMNIFICATION.
(a) The Trustee agrees to be liable for any taxes and costs incurred by
the Trust Fund, the Depositor, the Securities Administrator or the Master
Servicer including, without limitation, any reasonable attorneys fees imposed on
or incurred by the Trust Fund, the Depositor, the Securities Administrator or
the Master Servicer as a result of the Trustee's failure to perform its
covenants set forth in this Article X in accordance with the standard of care of
the Trustee set forth in this Agreement.
(b) The Master Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Depositor or the Trustee, as a result of the Master Servicer's failure to
perform its covenants set forth in Article III in accordance with the standard
of care of the Master Servicer set forth in this Agreement.
(c) The Securities Administrator agrees to be liable for any taxes and
costs incurred by the Trust Fund, the Depositor or the Trustee including,
without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Trustee as a result of the Securities
Administrator's failure to perform its covenants set forth in this Article X in
accordance with the standard of care of the Securities Administrator set forth
in this Agreement.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 AMENDMENT. This Agreement may be amended from time to
time, by the Depositor, the Master Servicer, the Securities Administrator and
the Trustee, without the consent of any of the Certificateholders, (a) to cure
any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Agreement, (b) to
modify, eliminate or add to any provisions to such extent as shall be necessary
to maintain the qualification of the Trust Fund as three REMICs at all times
that any Class A, Class M , Class CE or Class P Certificates are outstanding,
provided, that such action shall not, as evidenced by an Opinion of Counsel
addressed to the Trustee and delivered to the Trustee, adversely affect in any
material respect the interests of any Certificateholder. No amendment shall be
deemed to adversely affect in any material respect the interests of any
Certificateholder who shall have consented thereto, and no Opinion of Counsel
shall be required to address the effect of any such amendment on any such
consenting Certificateholder.
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Securities Administrator and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights for the purpose of adding any provisions to 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 (i) reduce in any manner the amount of, or delay the timing
of, payments received on Loans which are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner, other than as described in (i), without the
consent of the Holders of Certificates of such Class evidencing at least 66-2/3%
of the Voting Rights allocated to such Class, or (iii) modify the consents
required by the immediately preceding clauses (i) and (ii) without the consent
of the Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the name of
the Depositor or the Servicer or any Affiliate thereof shall be entitled to
Voting Rights with respect to matters affecting such Certificates. 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 5.06 hereof shall not require the
consent of any Certificateholder and without the need for any Opinion of Counsel
or Rating Agency confirmation.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel addressed to it to the effect that such amendment
will not cause either REMIC I, REMIC II or REMIC III of the Trust Fund to fail
to qualify as a REMIC at any time that REMIC I Regular Interests, REMIC II
Regular Interests or Regular Interest Certificates are outstanding.
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As soon as practicable after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Certificateholder and Rating Agency.
It shall not be necessary for the consent of the Certificateholders
under this Section 11.1 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel addressed to it
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement.
Section 11.2 RECORDATION OF AGREEMENT; COUNTERPARTS. To the extent
permitted by applicable law, this Agreement (or an abstract hereof, if
acceptable by the applicable recording office) is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Depositor at the expense of
the Certificateholders, but only after the Depositor has delivered to the
Trustee an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of the Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Except as otherwise expressly provided herein no Certificateholder,
solely by virtue of its status as Certificateholder, shall have any right to
vote or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association, nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
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holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless all of the
Holders of Certificates evidencing, in aggregate, not less than 25% of the Trust
Fund shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for
60 days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.4 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES OTHER THAN 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.5 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified or registered mail, return receipt requested
(a) in the case of the Depositor, to 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Deutsche Mortgage Securities, Inc., Mortgage Loan Trust, Series
2004-5, telecopy number: (000) 000-0000, or such other address or telecopy
number as may hereafter be furnished to the Master Servicer and the Trustee in
writing by the Depositor, (b) in the case of the Master Servicer and the
Securities Administrator, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 and for
overnight delivery to 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Deutsche Mortgage Securities, Inc., 2004-5 (telecopy number: (410)
715-2380), or such other address or telecopy number as may hereafter be
furnished to the Trustee and the Depositor in writing by the Master Servicer or
the Securities Administrator, 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, the Depositor and the Certificate Insurer in
writing by the Trustee and (d) in the case of the Certificate Insurer, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Research and Risk Management. 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.
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Section 11.6 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.7 NOTICE TO RATING AGENCIES.
The Trustee shall use its best efforts promptly to provide notice to
the Rating Agencies with respect to each of the following of which it has actual
knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Master Servicer Event of Default that has not
been cured or waived;
3. The resignation or termination of the Master Servicer or the Trustee;
4. The repurchase or substitution of Loans pursuant to or as contemplated
by Section 2.3;
5. The final payment to the Holders of any Class of Certificates;
6. Any change in the location of the Distribution Account; and
7. Any event that would result in the inability of the Trustee to make
advances regarding delinquent Loans pursuant to Section 7.2.
The Master Servicer shall make available to each Rating Agency copies
of the following:
1. Each annual statement as to compliance described in Section 3.16; and
2. Each annual independent public accountants' servicing report described
in Section 3.17.
Any such notice pursuant to this Section 11.7 shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
first class mail, postage prepaid, or by express delivery service to Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and to Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the Rating Agencies may
designate in writing to the parties hereto.
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Section 11.8 ARTICLE AND SECTION REFERENCES.
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
Section 11.9 GRANT OF SECURITY INTEREST.
It is the express intent of the parties hereto that the conveyance of
the Loans by the Depositor to the Trustee, on behalf of the Trust 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 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 Certificateholders, of a security interest in
all of the Depositor's right, title and interest in and to the Loans and all
amounts payable to the holders of the Loans in accordance with the terms thereof
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, including without
limitation all amounts, other than investment earnings, from time to time held
or invested in the Distribution Account, whether in the form of cash,
instruments, securities or other property; (3) the obligations secured by such
security agreement shall be deemed to be all of the Depositor's obligations
under this Agreement, including the obligation to provide to the
Certificateholders the benefits of this Agreement relating to the Loans and the
Trust Fund; and (4) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee, on behalf of the Trust
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.
ARTICLE XII
CERTAIN MATTERS REGARDING THE CERTIFICATE INSURER
Section 12.1 EXERCISE OF RIGHTS OF HOLDER OF THE INSURED CERTIFICATES.
Each of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee, and, by accepting its Insured Certificate, each
Holder of an Insured Certificate, agrees that unless
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a Certificate Insurer Default has occurred and is continuing, the Certificate
Insurer shall have the right to exercise all rights of the Holders of the
Insured Certificates under this Agreement (except as provided in clause (i) of
the second paragraph of Section 11.1) without any further consent of the Holders
of the Insured Certificates, including, without limitation: (i) the right to
direct foreclosures upon Loans upon failure of the Servicer to do so; (ii) the
right to require the Seller to repurchase or substitute for Loans pursuant to
Section 2.3; (iii) the right to give notices of breach or to terminate the
rights and obligations of the Master Servicer pursuant to Section 7.1; (iv) the
right to direct the actions of the Trustee during the continuance of a Master
Servicer Event of Default pursuant to Section 7.1; (v) the right to consent to
or direct any waivers of Master Servicer Events of Default pursuant to Section
7.4; (vi) the right to direct the Trustee to investigate certain matters
pursuant to Section 8.2(a)(v); and (vii) the right to remove the Trustee and the
Securities Administrator pursuant to Section 8.7 hereof.
In addition, each Holder of an Insured Certificate agrees that, unless
a Certificate Insurer Default has occurred and is continuing, the rights
specifically set forth above may be exercised by the Holder of an Insured
Certificate only with the prior written consent of the Certificate Insurer.
Section 12.2 TRUSTEE AND SECURITIES ADMINISTRATOR TO ACT SOLELY WITH
CONSENT OF CERTIFICATE INSURER.
Unless a Certificate Insurer Default has occurred and is continuing,
neither the Trustee nor the Securities Administrator shall: (i) agree to any
amendment pursuant to Section 11.1 which requires the consent of the
Certificateholders; or (ii) undertake any litigation pursuant to Section
8.2(a)(iii) at the request or direction of the Certificateholders, without the
prior written consent of the Certificate Insurer which consent shall not be
unreasonably withheld or delay; provided, however, nothing contained herein
shall prohibit or prevent the Trustee and the Securities Administrator from
defending itself or the Trust Fund or taking any action related thereto.
Section 12.3 TRUST FUND AND ACCOUNTS HELD FOR BENEFIT OF CERTIFICATE
INSURER.
The Trustee shall hold the Trust Fund and the Mortgage Files for the
benefit of the Certificateholders and the Certificate Insurer and all references
in this Agreement (including, without limitation, in Sections 2.1 and 2.2) and
in the Certificates to the benefit of Holders of the Certificates shall be
deemed to include the Certificate Insurer.
The Master Servicer hereby acknowledges and agrees that it shall master
service and administer the related Loans and any REO Properties, and the
Securities Administrator hereby acknowledges and agrees that it shall maintain
the Distribution Account, for the benefit of the Certificateholders and for the
benefit of the Certificate Insurer, and all references in this Agreement
(including, without limitation, in Section 3.1) to the benefit of or actions on
behalf of the Certificateholders shall be deemed to include the Certificate
Insurer. Unless a Certificate Insurer Default has occurred and is continuing,
neither the Master Servicer nor the Depositor shall undertake any litigation
pursuant to Section 6.3 (other than litigation to enforce their respective
rights hereunder or defend themselves against claims made against them) without
the
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prior consent of the Certificate Insurer (which consent shall not be
unreasonably withheld or delayed).
Section 12.4 CLAIMS UPON THE POLICY; POLICY PAYMENTS ACCOUNT.
(a) If, at or before 2:00 p.m., New York time, on the second Business
Day prior to a Distribution Date, the Securities Administrator determines that a
Guaranteed Distributions Shortfall for such Distribution Date is greater than
zero, then the Securities Administrator shall give notice to the Certificate
Insurer by telephone or telecopy of the amount of such Guaranteed Distributions
Shortfall. Such notice of such Guaranteed Distributions Shortfall shall be
confirmed in writing in the form set forth as Exhibit A to the Endorsement to
the Policy, to the Certificate Insurer at or before 2:00 p.m. New York time on
the second Business Day prior to such Distribution Date. Following Receipt (as
defined in the Policy) by the Certificate Insurer of such notice in such form,
the Certificate Insurer will pay any amount payable under the Policy on the
later to occur of (i) 12:00 noon New York time on the second Business Day
following such receipt and (ii) 12:00 noon New York time on the Distribution
Date to which such Guaranteed Distributions Shortfall relates, as provided in
the Endorsement to the Policy.
(b) The Trustee hereby appoints the Securities Administrator as its
agent in connection with the receipt and distribution of all amounts required to
be paid by the Certificate Insurer under the Policy and the providing of any
notices required to be provided thereunder. The Securities Administrator shall
establish a segregated non-interest bearing trust account for the benefit of
Holders of the Insured Certificates and the Certificate Insurer referred to
herein as the "Policy Payments Account" over which the Securities Administrator
shall have exclusive control and sole right of withdrawal. The Securities
Administrator shall deposit any amount paid under the Policy in the Policy
Payments Account and distribute such amount only for purposes of payment to
Holders of Insured Certificates of the Guaranteed Distributions Shortfall or any
amount in respect of a Preference Claim (as defined in the Policy) for which a
claim under the Policy was made, and such amount may not be applied to satisfy
any costs, expenses or liabilities of the Master Servicer, the Securities
Administrator, the Trustee or the Trust Fund. Amounts paid under the Policy
shall be transferred to the Distribution Account in accordance with the next
succeeding paragraph and disbursed by the Securities Administrator to Holders of
Insured Certificates in accordance with Section 4.1(c) (or, in the case of an
amount in respect of a Preference Claim, to the related Holders of Insured
Certificates as contemplated in Section 12.4(d)). It shall not be necessary for
such payments to be made by checks or wire transfers separate from the checks or
wire transfers used to pay the other distributions to be made to such Holders
pursuant to Section 4.1. However, the amount of any payment of principal of or
interest on the Insured Certificates to be paid from funds transferred from the
Policy Payments Account shall be noted as provided in paragraph (c) below in the
Certificate Register and in the statement to be furnished to Holders of the
Insured Certificates pursuant to Section 4.3. Funds held in the Policy Payments
Account shall not be invested.
(c) On any Distribution Date with respect to which a claim has been
made under the Policy, the amount of any funds received by the Securities
Administrator as a result of any claim under the Policy, to the extent required
to pay the Guaranteed Distributions Shortfall
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on such Distribution Date, shall be withdrawn from the Policy Payments Account
and deposited in the Distribution Account and applied by the Securities
Administrator, directly to the payment in full of the Guaranteed Distributions
Shortfall due on the Insured Certificates. Funds received by the Securities
Administrator as a result of any claim under the Policy shall be deposited by
the Securities Administrator in the Policy Payments Account and used solely for
payment to the Holders of the Insured Certificates and may not be applied to
satisfy any costs, expenses or liabilities of the Master Servicer, the
Securities Administrator, the Trustee or the Trust Fund. Any funds remaining in
the Policy Payments Account on the first Business Day following a Distribution
Date shall be remitted to the Certificate Insurer, pursuant (and subject to
receipt of) to the instructions of the Certificate Insurer, by the end of such
Business Day.
(d) The Securities Administrator shall keep a complete and accurate
record of the amount of interest and principal paid in respect of any Insured
Certificate from moneys received under the Policy. The Certificate Insurer shall
have the right to inspect such records at reasonable times during normal
business hours upon two Business Days' prior notice to the Securities
Administrator.
(e) The Securities Administrator shall promptly notify the Certificate
Insurer of any proceeding or the institution of any action, of which a
Responsible Officer of the Securities Administrator has actual knowledge,
seeking the avoidance as a preferential transfer under applicable bankruptcy,
insolvency, receivership or similar law (a "Preference Claim") of any Guaranteed
Distribution (as defined in the Policy) made with respect to the Insured
Certificates. Each Holder of an Insured Certificate, by its purchase of such
Certificate, the Master Servicer, the Securities Administrator and the Trustee
hereby agree that the Certificate Insurer (so long as no Certificate Insurer
Default has occurred and is continuing) may at any time during the continuation
of any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to such Preference Claim and (ii) the posting of
any surety, or performance bond pending any such appeal. In addition and without
limitation of the foregoing, the Certificate Insurer shall be subrogated to the
rights, if any, of the Master Servicer, Securities Administrator, the Trustee
and each Holder of an Insured Certificate in the conduct of any such Preference
Claim, including, without limitation, all rights of any party to an adversary
proceeding action with respect to any court order issued in connection with any
such Preference Claim.
Section 12.5 EFFECT OF PAYMENTS BY CERTIFICATE INSURER; SUBROGATION.
Anything herein to the contrary notwithstanding, any payment with
respect to principal of or interest on any Insured Certificate which is made
with moneys received pursuant to the terms of the Policy shall not be considered
payment of such Insured Certificate from the Trust Fund and shall not result in
the payment of or the provision for the payment of the principal of or interest
on such Insured Certificate within the meaning of Section 4.1. The Depositor,
the Master Servicer, Securities Administrator and the Trustee each acknowledge,
and each Holder of an Insured Certificate by its acceptance of a such
Certificate agrees, that without the need for any further action on the part of
the Certificate Insurer, the Depositor, the Master Servicer, Securities
Administrator or the Trustee (i) to the extent the Certificate Insurer makes
payments, directly or indirectly, on account of principal of or interest on any
Insured Certificate to the Holder of such
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Certificate, the Certificate Insurer will be fully subrogated to the rights of
such Holder to receive such principal and interest from the Trust Fund and (ii)
the Certificate Insurer shall be paid such principal and interest but only from
the sources and in the manner provided herein for the payment of such principal
and interest.
The Trustee, the Securities Administrator and the Master Servicer shall
cooperate in all respects with any reasonable request by the Certificate Insurer
for action to preserve or enforce the Certificate Insurer's rights or interests
under this Agreement without limiting the rights or affecting the interests of
the Holders as otherwise set forth herein; provided, however, that neither the
Trustee nor the Securities Administrator shall be under any obligation to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, direction or order of the Certificate Insurer pursuant to the
provisions of this Agreement, unless the Certificate Insurer shall have offered
to the Trustee or the Securities Administrator, as applicable, reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.
Section 12.6 NOTICES TO CERTIFICATE INSURER.
All notices, statements, reports, certificates or opinions required by
this Agreement to be sent to the Certificateholders shall also be sent to the
Certificate Insurer.
Section 12.7 THIRD PARTY BENEFICIARY.
The Certificate Insurer shall be deemed a third-party beneficiary of
this Agreement to the same extent as if it were a party hereto, and shall have
the right to enforce the provisions of this Agreement.
Section 12.8 TRUSTEE TO HOLD THE POLICY.
The Trustee shall hold the Policy in trust as agent for the Holders of
the Insured Certificates for the purpose of making claims thereon and
distributing the proceeds thereof. Upon the later of (i) the date upon which the
Certificate Principal Balance of the Insured Certificates has been reduced to
zero and all Guaranteed Distributions (as defined in the Policy) have been made
and (ii) the date the Term of This Policy (as defined in the Policy) ends, the
Trustee shall surrender the Policy to the Certificate Insurer for cancellation.
Neither the Policy nor the amounts paid on the Policy will constitute part of
the Trust Fund or assets of any Trust REMIC created by this Agreement. Each
Holder of an Insured Certificate, by accepting its Insured Certificate, appoints
the Trustee as attorney-in-fact for the purpose of making claims on the Policy.
Section 12.9 TERMINATION OF CERTAIN OF CERTIFICATE INSURER'S RIGHTS.
Notwithstanding anything to the contrary anywhere in this Agreement,
all rights of the Certificate Insurer, except in the case of any right to
indemnification hereunder, shall permanently cease to be operable upon the
latest to occur of (A) the date upon which the Certificate Principal Balance of
each Insured Certificate has been reduced to zero and all Guaranteed
Distributions (as defined in the Policy) have been made, (B) the date the Term
of
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This Policy (as defined in the Policy) ends and (C) the payment in full to the
Certificate Insurer of all amounts paid under the Policy plus interest at the
Late Payment Rate thereon from the date such payment was made, and any other
amounts owing to the Certificate Insurer under the Insurance Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized, all as of the day and year
first above written.
DEUTSCHE MORTGAGE SECURITIES, INC.,
as Depositor
By:
--------------------------------------------
Name:
Its:
By:
--------------------------------------------
Name:
Its:
XXXXX FARGO BANK,
N.A.,
as Master Servicer and Securities Administrator
By:
-------------------------------------------
Name:
Its:
HSBC BANK USA, NATIONAL ASSOCIATION
not in its individual capacity but solely
as Trustee
By:
------------------------------------------
Name:
Its:
With Respect to Sections 6.7, 6.8 and 6.9:
THE MURRAYHILL COMPANY
By:____________________________________
Name:
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of August 2004, 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of August 2004, 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the __ day of August 2004, before me, a notary public in and for
said State, personally appeared ___________________________ known to me to be a
____________________ of Xxxxx Fargo Bank, N.A., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of August 2004, before me, a notary public in and for
said State, personally appeared _______________ known to me to be a
_______________ of HSBC Bank USA, National Association, one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS A-[1][2][3][4A][4B][5A][5B] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND CERTAIN 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 MAY BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING
THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF
THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Certificate No.1 Pass-Through Rate: %
Class A-[1][2][3][4A][4B][5A][5B] Senior Percentage Interest: _____
Date of Pooling and Servicing Agreement Aggregate Initial Certificate
and Cut-Off Date: Principal Balance of this
August 1, 2004 Certificate as of the
Cut-Off Date:
$
First Distribution Date: Initial Certificate Principal
September 27, 2004 Balance of this Certificate as
of the Cut-Off Date:
$________
Master Servicer: CUSIP: ___________
Xxxxx Fargo Bank, N.A.
Assumed Final Distribution Date:
July, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-5
evidencing a fractional undivided interest in the distributions
allocable to the Class A-[1][2][3][4A][4B][5A][5B] Certificates with
respect to a Trust Fund consisting primarily of a pool of conventional
one- to four-family fixed interest rate mortgage loans sold by DEUTSCHE
MORTGAGE SECURITIES, INC.
This Certificate is payable solely from the assets of the Trust Fund as
described in the Agreement (as defined below), and does not represent an
obligation of or interest in Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans (as defined below) are guaranteed or insured by any
governmental entity or by Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator or any of their affiliates
or any other person. None of Deutsche Mortgage Securities, Inc., the Master
Servicer or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Mortgage Securities, Inc. ("DMSI"). The Mortgage Loans were sold by DB
Structured Products, Inc. to DMSI. Xxxxx Fargo Bank, N.A. will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-Off
Date specified above (the "Agreement"), among DMSI, as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as Master Servicer and securities
administrator (the "Securities Administrator") and HSBC Bank USA, National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
[Class A-1 Certificates] Interest on this Certificate will accrue (a)
as to the Distribution Date in September 2004, during the period commencing on
the Closing Date and ending on the day preceding the Distribution Date and (b)
as to any Distribution Date thereafter, 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.
The Pass-Through Rate applicable to the calculation of interest payable with
respect to this Certificate on any Distribution Date (as hereinafter defined)
shall be a per annum rate equal to the lesser of (i) One-Month LIBOR plus ____%
and (ii) the applicable Net WAC Pass-Through Rate for such Distribution Date The
Securities Administrator will distribute on the 25th day of each month, or, if
such 25th day is not a Business Day, the immediately following Business Day
(each, a "Distribution Date"), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the Business Day immediately preceding such
Distribution Date ( the "Record Date"), an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to the Holders of Certificates
of the same Class as this Certificate. Any such distributions will be made by
wire transfer in immediately available funds to the account of such Person or by
any other means of payment acceptable to such Person. The last scheduled
Distribution Date is the Distribution Date in the month specified above as the
Assumed Final Distribution Date.
[Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Certificate Principal Balance hereof at a per annum rate equal to the
Pass-Through Rate set forth above. The Securities Administrator will distribute
on the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the calendar month immediately preceding the month of such Distribution Date
(the "Record Date"), an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The last scheduled Distribution Date is the Distribution Date
in the month specified above as the Assumed Final Distribution Date.]
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose and designated in such notice. The initial Certificate Principal Balance
of this Certificate is set forth above. The Certificate Principal Balance hereof
will be reduced to the extent of distributions allocable to principal hereon and
any losses allocable hereto as described in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder, and that
neither the Depositor, the Trustee, the Master Servicer nor the Securities
Administrator is liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the parties thereto with the consent of the Holders of Certificates
affected thereby evidencing not less than 66-2/3% of the Voting Rights. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Securities
Administrator, the Trustee and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of Depositor, the Master Servicer, the Securities Administrator, the
Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the remittance
of all funds due under the Agreement, coinciding with or following the earlier
to occur of (i) the maturity or other liquidation (or Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition
of all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (ii) the optional repurchase by the party named in the
Agreement of all the Mortgage Loans and other assets of the Trust Fund in
accordance with the terms of the Agreement. Such optional repurchase may be made
only on or after the Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than the percentage of the
aggregate Scheduled Principal Balance specified in the Agreement of the Mortgage
Loans at the Cut-Off Date. The exercise of such right will effect the early
retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: August 30, 2004
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[1][2][3][4A][4B][5A][5B] Certificates
referred to in the within-mentioned Agreement.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:_________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
---------------------------------------
Signature by or on behalf of assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________. This information is provided
by __________________, the assignee named above, or ________________________, as
its agent.
EXHIBIT A-2
FORM OF CLASS A-IO CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Certificate No.1 Pass-Through Rate: %
Class A-IO Percentage Interest: _____
Date of Pooling and Servicing Agreement Aggregate Initial Notional
and Cut-Off Date: Amount of this Certificate
August 1, 2004 as of the Cut-Off Date:
$
First Distribution Date: Initial Notional Amount of this
September 27, 2004 Certificate as of the Cut-Off
Date:
$________
Master Servicer:
Xxxxx Fargo Bank, N.A.
Assumed Final Distribution Date: CUSIP: ___________
July, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-5
evidencing a fractional undivided interest in the distributions
allocable to the Class A-IO Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE MORTGAGE
SECURITIES, INC.
This Certificate is payable solely from the assets of the Trust Fund as
described in the Agreement (as defined below), and does not represent an
obligation of or interest in Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans (as defined below) are guaranteed or insured by any
governmental entity or by Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator or any of their affiliates
or any other person. None of Deutsche Mortgage Securities, Inc., the Master
Servicer or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Mortgage Securities, Inc. ("DMSI"). The Mortgage Loans were sold by DB
Structured Products, Inc. to DMSI. Xxxxx Fargo Bank, N.A. will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-Off
Date specified above (the "Agreement"), among DMSI, as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as Master Servicer and securities
administrator (the "Securities Administrator") and HSBC Bank USA, National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Notional Amount thereof at a per annum rate equal to the Pass-Through Rate set
forth above. The Securities Administrator will distribute on the 25th day of
each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the calendar
month preceding the month of such Distribution Date (the "Record Date"), an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount of interest required to be distributed to the Holders
of Certificates of the same Class as this Certificate. The last scheduled
Distribution Date is the Distribution Date in the month specified above as the
Assumed Final Distribution Date.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose and designated in such notice. The Class A-IO Certificates have no
Certificate Principal Balance. The initial Notional Balance of this Certificate
is set forth above.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder, and that
neither the Depositor, the Securities Administrator, the Master Servicer nor the
Trustee is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the parties thereto with the consent of the Holders of Certificates
affected thereby evidencing not less than 66-2/3% of the Voting Rights and the
consent of the Certificate Insurer. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates or the Certificate Insurer.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Securities
Administrator, the Trustee and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of Depositor, the Master Servicer, the Securities Administrator, the
Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the remittance
of all funds due under the Agreement, coinciding with or following the earlier
to occur of (i) the maturity or other liquidation (or Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition
of all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (ii) the optional repurchase by the party named in the
Agreement of all the Mortgage Loans and other assets of the Trust Fund in
accordance with the terms of the Agreement. Such optional repurchase may be made
only on or after the Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than the percentage of the
aggregate Scheduled Principal Balance specified in the Agreement of the Mortgage
Loans at the Cut-Off Date. The exercise of such right will effect the early
retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: August 30, 2004
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:_______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-IO Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: -----------------------------------------
Signature by or on behalf of assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS M-[1][2][3] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES [AND][,][ THE CLASS M-1 CERTIFICATES, [AND] THE CLASS M-2
CERTIFICATES], AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND CERTAIN LOSSES ALLOCABLE HERETO AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE
REPRESENTATIONS SET FORTH IN SECTION 5.3(E) OF THE AGREEMENT REFERRED TO HEREIN.
Certificate No.1 Pass-Through Rate: %
Class M-[1][2][3] Percentage Interest: _____
Date of Pooling and Servicing Agreement Aggregate Initial Certificate
and Cut-Off Date: Principal Balance of this
August 1, 2004 Certificate as of the
Cut-Off Date:
$
First Distribution Date: Initial Certificate Principal
September 27, 2004 Balance of this Certificate as
of the Cut-Off Date:
$________
Master Servicer: CUSIP: ___________
Xxxxx Fargo Bank, N.A.
Assumed Final Distribution Date:
July, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-5
evidencing a fractional undivided interest in the distributions
allocable to the Class [M]-[1][2][3] Certificates with respect to a
Trust Fund consisting primarily of a pool of conventional one- to
four-family fixed interest rate mortgage loans sold by DEUTSCHE
MORTGAGE SECURITIES, INC.
This Certificate is payable solely from the assets of the Trust Fund as
described in the Agreement (as defined below), and does not represent an
obligation of or interest in Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans (as defined below) are guaranteed or insured by any
governmental entity or by Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator or any of their affiliates
or any other person. None of Deutsche Mortgage Securities, Inc., the Master
Servicer or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
Deutsche Mortgage Securities, Inc. ("DMSI"). The Mortgage Loans were sold by DB
Structured Products, Inc. to DMSI. Xxxxx Fargo Bank, N.A. will act as master
servicer of the Mortgage Loans (the "Master Servicer," which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-Off
Date specified above (the "Agreement"), among DMSI, as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as Master Servicer and securities
administrator (the "Securities Administrator") and HSBC Bank USA, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which the related Distribution Date occurs. The Pass-Through Rate
applicable to the calculation of interest payable with respect to this
Certificate on any Distribution Date (as hereinafter defined) shall be a rate
per annum equal to the lesser of (i) ______% and (ii) the applicable Net WAC
Pass-Through Rate for such Distribution Date. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business
Day, the immediately following Business Day (each, a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the calendar month preceding the month of such Distribution
Date, an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount (of interest and principal, if any) required to
be distributed to the Holders of Certificates of the same Class as this
Certificate. Any such distributions will be made by wire transfer in immediately
available funds to the account of such Person or by any other means of payment
acceptable to such Person. The last scheduled Distribution Date is the
Distribution Date in the month specified above as the Assumed Final Distribution
Date.
Distributions on this Certificate will be made by the Securities
Administrator by wire transfer in immediately available funds to the account of
the Person in whose name the Certificate is registered at the close of business
on the related Record Date or by any other means of payment acceptable to such
Certificateholder. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Securities Administrator of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose and designated in such notice. The initial Certificate
Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions
allocable to principal hereon and any Realized Losses allocable hereto as
described in the Agreement.
Any transferee of this certificate shall be deemed to make the
representations set forth in section 5.3(e) of the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that
neither the Depositor, the Trustee, the Master Servicer nor the Securities
Administrator is liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the parties thereto with the consent of the Holders of Certificates
affected thereby evidencing not less than 66-2/3% of the Voting Rights. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the remittance
of all funds due under the Agreement, coinciding with or following the earlier
to occur of (i) the maturity or other liquidation (or Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition
of all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (ii) the optional repurchase by the party named in the
Agreement of all the Mortgage Loans and other assets of the Trust Fund in
accordance with the terms of the Agreement. Such optional repurchase may be made
only on or after the Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than the percentage of the
aggregate Scheduled Principal Balance specified in the Agreement of the Mortgage
Loans at the Cut-Off Date. The exercise of such right will effect the early
retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: August 30, 2004
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-[1][2][3] Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: -----------------------------------------
Signature by or on behalf of assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS CE CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND THE CLASS M CERTIFICATES, AS DESCRIBED IN THE AGREEMENT (AS
DEFINED HEREIN).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS ON 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 AS THE DENOMINATION OF THIS CERTIFICATE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.3(D) OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.3(E) OF THE
AGREEMENT OR AN OPINION OF COUNSEL UNDER SECTION 5.3(E) OF THE AGREEMENT THAT
THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE DEPOSITOR, THE MASTER
SERVICER, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, ANY SERVICER OR THE TRUST
FUND TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
Certificate No.1 Pass-Through Rate: %
Class CE Percentage Interest: _____
Date of Pooling and Servicing Agreement Aggregate Initial Certificate
and Cut-Off Date: Principal Balance of this
August 1, 2004 Certificate as of the
Cut-Off Date:
$
First Distribution Date: Initial Certificate Principal
September 27, 2004 Balance of this Certificate as
of the Cut-Off Date:
$________
Master Servicer: CUSIP:
Xxxxx Fargo Bank, N.A.
Assumed Final Distribution Date:
July, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-5
evidencing a fractional undivided interest in the distributions
allocable to the Class CE Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE MORTGAGE
SECURITIES, INC.
This Certificate is payable solely from the assets of the Trust Fund as
described in the Agreement (as defined below), and does not represent an
obligation of or interest in Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans (as defined below) are guaranteed or insured by any
governmental entity or by Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator or any of their affiliates
or any other person. None of Deutsche Mortgage Securities, Inc., the Master
Servicer or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that 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 a trust (the
"Trust Fund") generally consisting of conventional first lien, fixed rate
mortgage loans secured by one- to four- family residences, units in planned unit
developments and individual condominium units (collectively, the "Mortgage
Loans") sold by Deutsche Mortgage Securities, Inc. ("DMSI"). The Mortgage Loans
were sold by DB Structured Products, Inc. to DMSI. Xxxxx Fargo Bank, N.A. will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-Off Date specified above (the "Agreement"), among DMSI, as depositor
(the "Depositor"), Xxxxx Fargo Bank, N.A., as Master Servicer and securities
administrator (the "Securities Administrator") and HSBC Bank USA, National
Association as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning
ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
The Securities Administrator will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately following
Business Day (each, a "Distribution Date"), commencing on the First Distribution
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the last Business Day of the calendar month
preceding the month of such Distribution Date (the "Record Date"), an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount (of interest and principal, if any) required to be distributed to
the Holders of Certificates of the same Class as this Certificate. The last
scheduled Distribution Date is the Distribution Date in the month specified
above as the Assumed Final Distribution Date.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose and designated in such notice. The initial Certificate Principal Balance
of this Certificate is set forth above. The Certificate Principal Balance hereof
will be reduced to the extent of distributions allocable to principal hereon and
certain losses allocable hereto as described in the Agreement.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and an effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. In the
event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon Rule
144A under the 1933 Act, written certifications from the Holder of the
Certificate desiring to effect the transfer, and from such Holder's prospective
transferee, substantially in the forms attached to the Agreement as Exhibit D
and either Exhibit E or Exhibit F, as applicable, and (ii) in all other cases,
an Opinion of Counsel reasonably satisfactory to the Trustee, the Depositor and
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 Securities
Administrator, the Master Servicer, any Servicer or the Trust Fund in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Securities Administrator or the
Trustee is obligated to register or qualify the Class of Certificates specified
on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Securities Administrator, the Depositor, the Seller and the Master
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of this Class CE Certificate will be made unless the
Depositor, the Trustee and the Securities Administrator have received either (i)
an opinion of counsel under Section 5.3(e) of the Agreement stating, among other
things, that the transferee's acquisition of a Class CE Certificate is
permissible under applicable law, will not constitute or result in a non-
exempt prohibited transaction under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the
Internal Revenue Code (the "Code") and will not subject the Depositor, the
Trustee, the Securities Administrator, the Master Servicer, any Servicer or the
Trust Fund to any obligation or liability in addition to those undertaken in the
Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating that the transferee is not an employee benefit or other plan
subject to the prohibited transaction provisions of ERISA or Section 4975 of the
Code (a "Plan"), or any other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that
neither the Trustee nor the Securities Administrator is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the parties thereto with the consent of the Holders of Certificates
affected thereby evidencing not less than 66-2/3% of the Voting Rights. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the remittance
of all funds due under the Agreement, coinciding with or following the earlier
to occur of (i) the maturity or other liquidation (or Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition
of all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (ii) the optional repurchase by the party named in the
Agreement of all the Mortgage Loans and other assets of the Trust Fund in
accordance with the terms of the Agreement. Such optional repurchase may be made
only on or after the Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than the percentage of the
aggregate Scheduled Principal Balance specified in the Agreement of the Mortgage
Loans at the Cut-Off Date. The exercise of such right will effect the early
retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: August 30, 2004
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class CE Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
-----------------------------------------
Signature by or on behalf of assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.3 OF THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.3 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.3(E) OF THE
AGREEMENT OR AN OPINION OF COUNSEL UNDER SECTION 5.3(E) OF THE AGREEMENT THAT
THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE DEPOSITOR, THE MASTER
SERVICER, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, ANY SERVICER OR THE TRUST
FUND TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
Certificate No.1 Pass-Through Rate: %
Class P Percentage Interest: _____
Date of Pooling and Servicing Agreement Aggregate Initial Certificate
and Cut-Off Date: Principal Balance of this
August 1, 2004 Certificate as of the
Cut-Off Date:
$100.00
First Distribution Date: Initial Certificate Principal
September 27, 2004 Balance of this Certificate as
of the Cut-Off Date:
$100.00
Master Servicer: CUSIP:
Xxxxx Fargo Bank, N.A.
Assumed Final Distribution Date:
July, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-5
evidencing a fractional undivided interest in the distributions
allocable to the Class P Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE MORTGAGE
SECURITIES, INC.
This Certificate is payable solely from the assets of the Trust Fund as
described in the Agreement (as defined below), and does not represent an
obligation of or interest in Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans (as defined below) are guaranteed or insured by any
governmental entity or by Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator or any of their affiliates
or any other person. None of Deutsche Mortgage Securities, Inc., the Master
Servicer or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that 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 a trust (the
"Trust Fund") generally consisting of conventional first lien, fixed rate
mortgage loans secured by one- to four- family residences, units in planned unit
developments and individual condominium units (collectively, the "Mortgage
Loans") sold by Deutsche Mortgage Securities, Inc. ("DMSI"). The Mortgage Loans
were sold by DB Structured Products, Inc. to DMSI. Xxxxx Fargo Bank, N.A. will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-Off Date specified above (the "Agreement"), among DMSI, as depositor
(the "Depositor"), Xxxxx Fargo Bank, N.A., as Master Servicer and securities
administrator (the "Securities Administrator") and HSBC Bank USA, National
Association as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth
hereafter. To the extent not defined herein, capitalized terms used herein shall
have the meaning ascribed to them in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of its acceptance
hereof assents and by which such Holder is bound.
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 "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the last Business Day of the
calendar month immediately preceding the month in which the related Distribution
Date occurs (the "Record Date"), 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 the Class P Certificates on such Distribution Date
pursuant to the Agreement. Any such distributions will be made by wire transfer
in immediately available funds to the account of such Person or by any other
means of payment acceptable to such Person.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than the distributions to Certificateholders, such purposes
including the reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose and designated in such notice. The initial Certificate Principal Balance
of this Certificate is set forth above.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and an effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. In the
event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon Rule
144A under the 1933 Act, written certifications from the Holder of the
Certificate desiring to effect the transfer, and from such Holder's prospective
transferee, substantially in the forms attached to the Agreement as Exhibit D
and either Exhibit E or Exhibit F, as applicable, and (ii) in all other cases,
an Opinion of Counsel reasonably satisfactory to the Trustee, the Depositor and
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 Securities
Administrator, the Master Servicer, any Servicer or the Trust Fund in their
respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Securities Administrator or the
Trustee is obligated to register or qualify the Class of Certificates specified
on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Securities Administrator, the Depositor, the Seller and the Master
Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Class P Certificate will be made unless the
Depositor, the Trustee and the Securities Administrator have received either (i)
an opinion of counsel under Section 5.3(e) of the Agreement stating, among other
things, that the transferee's acquisition of a Class P Certificate is
permissible under applicable law, will not constitute or result in a non-exempt
prohibited transaction under Section 406 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of the Internal
Revenue Code (the "Code") and will not subject the Depositor, the Trustee, the
Securities Administrator, the Master Servicer, any Servicer or the Trust Fund to
any obligation or liability in addition to those undertaken in the Agreement or
(ii) a representation letter, in the form as described by the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that
neither the Trustee nor the Securities Administrator is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the parties thereto with the consent of the Holders of Certificates
affected thereby evidencing not less than 66-2/3% of the Voting Rights. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Securities Administrator, the
Trustee and any agent of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Securities Administrator, the Trustee or any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the remittance
of all funds due under the Agreement, coinciding with or following the earlier
to occur of (i) the maturity or other liquidation (or Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition
of all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (ii) the optional repurchase by the party named in the
Agreement of all the Mortgage Loans and other assets of the Trust Fund in
accordance with the terms of the Agreement. Such optional repurchase may be made
only on or after the Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than the percentage of the
aggregate Scheduled Principal Balance specified in the Agreement of the Mortgage
Loans at the Cut-Off Date. The exercise of such right will effect the early
retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: August 30, 2004
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Asset-Backed Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: -----------------------------------------
Signature by or on behalf of assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.3 OF THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.3(E) OF THE
AGREEMENT OR AN OPINION OF COUNSEL UNDER SECTION 5.3(E) OF THE AGREEMENT THAT
THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE,
THE DEPOSITOR, THE SECURITIES ADMINISTRATOR, ANY SERVICER OR THE TRUST FUND TO
ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (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 "DISQUALIFIED ORGANIZATION") 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 5.3(D) OF THE AGREEMENT REFERRED TO HEREIN. ANY PERSON
THAT IS A DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL
OWNERSHIP OF THIS CERTIFICATE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.3(C) AND 5.3(E) OF THE AGREEMENT.
Certificate No.1 Pass-Through Rate: 100%
Class R Percentage Interest: _____
Date of Pooling and Servicing Agreement Fiirst Distribution Date:
and Cut-Off Date: September 27, 2004
August 1, 2004
Master Servicer: CUSIP:
Xxxxx Fargo Bank, N.A.
Assumed Final Distribution Date:
July, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-5
evidencing a fractional undivided interest in the distributions
allocable to the Class R Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by DEUTSCHE MORTGAGE
SECURITIES, INC.
This Certificate is payable solely from the assets of the Trust Fund as
described in the Agreement (as defined below), and does not represent an
obligation of or interest in Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator referred to below or any
of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans (as defined below) are guaranteed or insured by any
governmental entity or by Deutsche Mortgage Securities, Inc., the Master
Servicer, the Trustee or the Securities Administrator or any of their affiliates
or any other person. None of Deutsche Mortgage Securities, Inc., the Master
Servicer or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that 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 a trust (the
"Trust Fund") generally consisting of conventional first lien, fixed rate
mortgage loans secured by one- to four- family residences, units in planned unit
developments and individual condominium units (collectively, the "Mortgage
Loans") sold by Deutsche Mortgage Securities, Inc. ("DMSI"). The Mortgage Loans
were sold by DB Structured Products, Inc. to DMSI. Xxxxx Fargo Bank, N.A. will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-Off Date specified above (the "Agreement"), among DMSI, as depositor
(the "Depositor"), Xxxxx Fargo Bank, N.A., as Master Servicer and securities
administrator (the "Securities Administrator") and HSBC Bank USA, National
Association as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Securities Administrator of, among other things, an affidavit to the effect
that it is a United States Person and Permitted Transferee, (iii) any attempted
or purported transfer of any Ownership Interest in this Certificate in violation
of such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have the
right, in its sole discretion and without notice to the Holder of this
Certificate, to sell this Certificate to a purchaser selected by the Depositor,
which purchaser may be the Depositor, or any affiliate of the Depositor, on such
terms and conditions as the Depositor may choose.
The Securities Administrator will distribute on the 25th day of each
month, or, if such 25th day is not a Business Day, the immediately following
Business Day (each, a "Distribution Date"), commencing on the First Distribution
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs (the
"Record Date"), an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amounts required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The last
scheduled Distribution Date is the Distribution Date in the month specified
above as the Assumed Final Distribution Date.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose and designated in such notice.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and an effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. In the
event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon Rule
144A under the 1933 Act, written certifications from the Holder of the
Certificate desiring to effect the transfer, and from such Holder's prospective
transferee, substantially in the forms attached to the Agreement as Exhibit D
and either Exhibit E or Exhibit F, as applicable, and (ii) in all other cases,
an Opinion of Counsel satisfactory to it that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Trustee, the Securities
Administrator or the Master Servicer in their respective capacities as such),
together with copies of the written certification(s) of the Holder of the
Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Depositor,
the Securities Administrator or the Trustee is obligated to register or qualify
the Class of Certificates specified on the face hereof under the 1933 Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Securities Administrator, the
Depositor, the Seller and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Class R Certificate will be made unless the
Depositor, the Trustee and the Securities Administrator have received either (i)
an opinion of counsel under Section 5.3(e) of the Agreement stating, among other
things, that the transferee's acquisition of a Class R Certificate is
permissible under applicable law, will not constitute or result in a non-exempt
prohibited transaction under Section 406 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of the Internal
Revenue Code (the "Code") and will not subject the Depositor, the Trustee, the
Securities Administrator, the Master Servicer, any Servicer or the Trust Fund to
any obligation or liability in addition to those undertaken in the Agreement or
(ii) a representation letter, in the form as described by the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust Fund for payment hereunder and that
neither the Securities Administrator nor the Trustee is liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Securities Administrator.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the parties thereto with the consent of the Holders of Certificates
affected thereby evidencing not less than 66-2/3% of the Voting Rights. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Depositor, the Master Servicer, the Securities
Administrator, the Trustee and any agent of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of Depositor, the Master Servicer, the Securities Administrator, the
Trustee or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby (other than the obligations to make payments to Certificateholders with
respect to the termination of the Agreement) shall terminate upon the remittance
of all funds due under the Agreement, coinciding with or following the earlier
to occur of (i) the maturity or other liquidation (or Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and disposition
of all property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (ii) the optional repurchase by the party named in the
Agreement of all the Mortgage Loans and other assets of the Trust Fund in
accordance with the terms of the Agreement. Such optional repurchase may be made
only on or after the Distribution Date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than the percentage of the
aggregate Scheduled Principal Balance specified in the Agreement of the Mortgage
Loans at the Cut-Off Date. The exercise of such right will effect the early
retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: August 30, 2004
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: -----------------------------------------
Signature by or on behalf of assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to _____________________________________________.
This information is provided by __________________, the assignee named
above, or ________________________, as its agent.
EXHIBIT B
[RESERVED]
EXHIBIT C
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to
Section 860E(e)(4) of the
Internal Revenue Code of
1986, as amended, and for
other purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he/she is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _____] [the United States], on behalf of which
he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Deutsche Mortgage Securities,
Inc. Mortgage Loan Trust, Series 2004-5 Mortgage Pass-Through Certificates,
Class R Certificates (the "Residual Certificates") for the account of a
disqualified organization; (iii) it consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by Deutsche 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.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) a corporation or partnership (including an entity
treated as a corporation or partnership for federal income tax purposes) created
or organized in, or under the laws of, the United States or any state thereof or
the District of Columbia (except, in the case of a partnership, to the extent
provided in regulations), provided that no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are United States Persons, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
______________________.
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By:
--------------------------------
[Name of Officer]
[Title of Officer]
[Address of Investor for
receipt of distributions]
Address of Investor for
receipt of tax information:
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Investor, and acknowledged to me that he/she
executed the same as his/her free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of _________, 20___.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ___ day of ___________________, 20___.
EXHIBIT D
FORM OF TRANSFEROR CERTIFICATE
______________,200___
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities Trust 2004-5
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Mortgage Securities, Inc., 0000-0
Xxxxxxxx Mortgage Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities, Inc.
Alternative Loan Trust, Series 2004-5
Re: Deutsche Mortgage Securities, Inc. Mortgage Loan Trust,
SERIES 2004-5, CLASS [CE][P][R]MORTGAGE PASS-THROUGH
CERTIFICATES
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of Series
2004-5 Mortgage Pass-Through Certificates, Class _____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of August 1, 2004 among Deutsche Mortgage
Securities, Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
master servicer and securities administrator, and HSBC Bank USA, National
Association, as trustee (the "Trustee"). The Seller hereby certifies, represents
and warrants to, a covenants with, the Depositor, the Trustee and the Securities
Administrator that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The
Seller will not act in any manner set forth in the foregoing sentence with
respect to any Certificate. The Seller has not and will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
Very truly yours,
(Seller)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
EXHIBIT E
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
___________,200__
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities Trust 2004-5
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Mortgage Securities, Inc., 0000-0
Xxxxxxxx Mortgage Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities, Inc.
Alternative Loan Trust, Series 2004-5
Re: Deutsche Mortgage Securities, Inc. Mortgage Loan Trust,
SERIES 2004-5, CLASS [CE][P][R] MORTGAGE PASS-THROUGH
CERTIFICATES
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from
______________ (the "Seller") $_________ Initial Certificate Principal Balance
of Series 2004-5 Mortgage Pass-Through Certificates, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of August 1, 2004 among Deutsche
Mortgage Securities, Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank,
N.A., as master servicer and securities administrator, and HSBC Bank USA,
National Association, as trustee (the "Trustee"). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Securities Administrator and the Trustee
that:
1. The Purchaser understands that (a) the Certificates have not been
and will not be registered or qualified under the Securities Act of 1933,
as amended (the "Act") or any state securities law, (b) the Depositor is
not required to so register or qualify the Certificates, (c) the
Certificates may be resold only if registered and qualified pursuant to the
provisions of the Act or any state securities law, or if an exemption from
such registration and qualification is available, (d) the Pooling and
Servicing Agreement contains restrictions regarding the transfer of the
Certificates and (e) the Certificates will bear a legend to the foregoing
effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any
applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such matters related to securities similar
to the Certificates, such that it is capable of evaluating the merits and
risks of investment in the Certificates, (b) able to bear the economic
risks of such an investment and (c) an "accredited investor" within the
meaning of Rule 501 (a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity
to review (a) [a copy of the Private Placement Memorandum, dated ______,
2004, relating to the Certificates (b)] a copy of the Pooling and Servicing
Agreement and [(b)] [(c)] such other information concerning the
Certificates, the Mortgage Loans and the Depositor as has been requested by
the Purchaser from the Depositor or the Seller and is relevant to the
Purchaser's decision to purchase the Certificates. The Purchaser has had
any questions arising from such review answered by the Depositor or the
Seller to the satisfaction of the Purchaser. [If the Purchaser did not
purchase the Certificates from the Seller in connection with the initial
distribution of the Certificates and was provided with a copy of the
Private Placement Memorandum (the "Memorandum") relating to the original
sale (the "Original Sale") of the Certificates by the Depositor, the
Purchaser acknowledges that such Memorandum was provided to it by the
Seller, that the Memorandum was prepared by the Depositor solely for use in
connection with the Original Sale and the Depositor did not participate in
or facilitate in any way the purchase of the Certificates by the Purchaser
from the Seller, and the Purchaser agrees that it will look solely to the
Seller and not to the Depositor with respect to any damage, liability,
claim or expense arising out of, resulting from or in connection with (a)
error or omission, or alleged error or omission, contained in the
Memorandum, or (b) any information, development or event arising after the
date of the Memorandum.]
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicit any offer to buy
or to accept a pledge, disposition of other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approach or negotiate with respect to
any Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) make any general solicitation
by means of general advertising or in any other manner or (e) take any
other action, that (as to any of (a) through (e) above) would constitute a
distribution of any Certificate under the Act, that would render the
disposition of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the Pooling
and Servicing Agreement.
Very truly yours,
(Purchaser)
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
EXHIBIT F
FORM OF RULE 144A INVESTMENT LETTER
[Date]
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities Trust 2004-5
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Mortgage Securities, Inc., 0000-0
Xxxxxxxx Mortgage Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities, Inc.
Alternative Loan Trust, Series 2004-5
Re: Deutsche Mortgage Securities, Inc. Mortgage Loan Trust,
Series 2004-5 Mortgage Pass-Through Certificates, (the
"Certificates"), INCLUDING THE CLASS CE, P AND R CERTIFICATES
(THE "PRIVATELY OFFERED CERTIFICATES")
Dear Ladies and Gentlemen:
In connection with our purchase of Privately Offered Certificates, we
confirm that:
(i) we understand that the Privately Offered Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act") or
any applicable state securities or "Blue Sky" laws, and are being sold
to us in a transaction that is exempt from the registration
requirements of such laws;
(ii) any information we desired concerning the Certificates, including the
Privately Offered Certificates, the trust in which the Certificates
represent the entire beneficial ownership interest (the "Trust") or
any other matter we deemed relevant to our decision to purchase
Privately Offered Certificates has been made available to us;
(iii) we are able to bear the economic risk of investment in Privately
Offered Certificates; we are an institutional "accredited investor" as
defined in Section 501(a) of Regulation D promulgated under the Act
and a sophisticated institutional investor;
(iv) we are acquiring Privately Offered Certificates for our own account,
not as nominee for any other person, and not with a present view to
any distribution or other disposition of the Privately Offered
Certificates;
(v) we agree the Privately Offered Certificates must be held indefinitely
by us (and may not be sold, pledged, hypothecated or in any way
disposed of) unless subsequently registered under the Act and any
applicable state securities or "Blue Sky" laws or an exemption from
the registration requirements of the Act and any applicable state
securities or "Blue Sky" laws is available;
(vi) we agree that in the event that at some future time we wish to dispose
of or exchange any of the Privately Offered Certificates (such
disposition or exchange not being currently foreseen or contemplated),
we will not transfer or exchange any of the Privately Offered
Certificates unless:
(A) (1) the sale is to an Eligible Purchaser (as defined below),
(2) if required by the Pooling and Servicing Agreement (as defined
below) a letter to substantially the same effect as either this letter
or, if the Eligible Purchaser is a Qualified Institutional Buyer as
defined under Rule 144A of the Act, the Rule 144A and Related Matters
Certificate in the form attached to the Pooling and Servicing
Agreement (as defined below) (or such other documentation as may be
acceptable to the Securities Administrator) is executed promptly by
the purchaser and delivered to the addressees hereof and (3) all
offers or solicitations in connection with the sale, whether directly
or through any agent acting on our behalf, are limited only to
Eligible Purchasers and are not made by means of any form of general
solicitation or general advertising whatsoever; and
(B) if the Privately Offered Certificate is not registered under
the Act (as to which we acknowledge you have no obligation), the
Privately Offered Certificate is sold in a transaction that does not
require registration under the Act and any applicable state securities
or "blue sky" laws and, if Xxxxx Fargo Bank, N.A. (the "Securities
Administrator") so requests, a satisfactory Opinion of Counsel is
furnished to such effect, which Opinion of Counsel shall be an expense
of the transferor or the transferee;
(vii) we agree to be bound by all of the terms (including those relating to
restrictions on transfer) of the Pooling and Servicing, pursuant to
which the Trust was formed; we have reviewed carefully and understand
the terms of the Pooling and Servicing Agreement;
(viii) we either: (i) are not acquiring the Privately Offered Certificate
directly or indirectly by, or on behalf of, an employee benefit plan
or other retirement arrangement which is subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and/or section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"), or (ii) are providing an opinion of counsel to the
effect that the proposed transfer and holding of a Privately Offered
Certificate: (I) is permissible under applicable law, (II) will not
result in any non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code and (III) will not subject the
Depositor, the Trustee, the Master Servicer, the
Securities Administrator, any Servicer or the Trust Fund to any
obligation or liability in addition to those undertaken in the
Agreement.
(ix) We understand that each of the Class CE, P and R Certificates bears,
and will continue to bear, a legend to substantiate the following
effect: "THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A
NON-UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED
BELOW). SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.3 OF THE AGREEMENT
REFERRED TO HEREIN. NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT
TO SECTION 5.3(e) OF THE AGREEMENT OR AN OPINION OF COUNSEL UNDER
SECTION 5.3(e) OF THE AGREEMENT THAT THE PURCHASE OF THIS CERTIFICATE
IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE
TRUSTEE, THE DEPOSITOR, THE SECURITIES ADMINISTRATOR, ANY SERVICER OR
THE TRUST FUND TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE
PROVIDES (I) AN AFFIDAVIT TO THE TRUSTEE 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 "DISQUALIFIED ORGANIZATION") 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 5.3(d) OF THE AGREEMENT REFERRED TO HEREIN. ANY
PERSON THAT IS A DISQUALIFIED ORGANIZATION IS PROHIBITED FROM
ACQUIRING BENEFICIAL OWNERSHIP OF THIS CERTIFICATE. THIS CERTIFICATE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.3 OF THE
AGREEMENT."
"ELIGIBLE PURCHASER" means a corporation, partnership or other entity
which we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is either a Qualified Institutional
Buyer as defined under Rule 144A of the Act or an institutional "Accredited
Investor" as defined under Rule 501 of the Act.
Terms not otherwise defined herein shall have the meanings assigned to
them in the Pooling and Servicing Agreement, dated as of August 1, 2004, between
Deutsche Mortgage Securities, Inc., as depositor, Xxxxx Fargo Bank, N.A., as
master servicer and securities administrator, and HSBC Bank USA, National
Association, as Trustee (the "Agreement").
If the Purchaser proposes that its Certificates be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
Name of Nominee (if any):
IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Eligible Purchaser
on the ___ day of ________, 20___.
Very truly yours,
[PURCHASER]
By:
------------------------------------
(Authorized Officer)
[By:
------------------------------------
Attorney-in-fact]
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Purchaser identified above, for whom the undersigned is acting
as nominee.
[NAME OF NOMINEE]
By:
------------------------------------
(Authorized Officer)
[By:
------------------------------------
Attorney-in-fact]
EXHIBIT G
FORM OF BENEFIT PLAN AFFIDAVIT
[Date]
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities Trust 2004-5
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Deutsche Mortgage Securities, Inc., 0000-0
Xxxxxxxx Mortgage Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deutsche Mortgage Securities, Inc.
Mortgage Loan Trust, Series 2004-5
Re: Deutsche Mortgage Securities, Inc. Mortgage Loan Trust,
Series 2004-5 Mortgage Pass-through Certificates, (the "Trust")
CLASS CE, P, AND R CERTIFICATES (THE "PURCHASED CERTIFICATES")
Under penalties of perjury, I, ___________________, declare that, to the best of
my knowledge and belief, the following representations are true, correct and
complete; and
1. That I am the _________ of _________________ (the "Purchaser"),
whose taxpayer identification number is ___________, and on behalf of which I
have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate representing
an interest in the Trust.
3. The Purchaser either (a) is not an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or a
"plan" described in Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") or any entity deemed to hold plan assets of any of the
foregoing by reason of a plan's investment in such entity (a "Plan") or (b) has
provided the opinion of counsel required by Section 5.3(d) of the Agreement.]
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed
on its behalf, by its duly authorized officer this day of _____________, 20 .
[Purchaser]
By:_______________________________
Its:
SCHEDULE ONE
LOAN SCHEDULE
[TO BE PROVIDED BY THE DEPOSITOR UPON REQUEST]
SCHEDULE TWO
PREPAYMENT CHARGE SCHEDULE
1 The Distribution date in the month after the maturity date for the latest
maturing Loan.
