EXHIBIT 4.1
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DEUTSCHE ALT-A SECURITIES, INC.
Depositor
and
[ ]
Master Servicer and Securities Administrator
and
[ ]
Trustee
------------------------
FORM OF
POOLING AND SERVICING AGREEMENT
Dated as of [ ], [ ]
------------------------
Mortgage Pass-Through Certificates
Series [ ]
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<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS...............................................
Section 1.1
Definitions...............................................
Section 1.2
Allocation of Certain Interest Shortfall..................
ARTICLE II
CONVEYANCE OF TRUST FUND; ORIGINAL ISSUANCE OF
CERTIFICATES..............................................
Section 2.1
Conveyance of Trust Fund..................................
Section 2.2
Acceptance by Trustee.....................................
Section 2.3
Repurchase or Substitution of Loans.......................
Section 2.4
Authentication and Delivery of Certificates; Designation
of Certificates as REMIC Regular Interests and
Residual Interests........................................
Section 2.5
Representations and Warranties of the Master Servicer.....
Section 2.6
Conveyance of Subsequent Loans............................
Section 2.7
Establishment of the Trust................................
Section 2.8
Purposes and Powers of the Trust..........................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE LOANS; ACCOUNTS.......
Section 3.1
Master Servicer...........................................
Section 3.2
REMIC-Related Covenants...................................
Section 3.3
Monitoring of Servicers...................................
Section 3.4
Fidelity Bond.............................................
Section 3.5
Power to Act; Procedures..................................
Section 3.6
Due-on-Sale Clauses; Assumption Agreements................
Section 3.7
Release of Mortgage Files.................................
Section 3.8
Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee...........................
Section 3.9
Standard Hazard Insurance and Flood Insurance Policies....
Section 3.10
Presentment of Claims and Collection of Proceeds..........
Section 3.11
Maintenance of the Primary Mortgage Insurance Policies....
Section 3.12
Trustee to Retain Possession of Certain Insurance Policies
and Documents.............................................
Section 3.13
Realization Upon Defaulted Loans..........................
Section 3.14
Compensation for the Master Servicer......................
Section 3.15
REO Property..............................................
Section 3.16
Annual Statement as to Compliance.........................
Section 3.17
Assessments of Compliance and Attestation Reports.........
Section 3.18
Reserved..................................................
Section 3.19
Reserved..................................................
Section 3.20
Obligation of the Master Servicer in Respect of
Compensating Interest.....................................
Section 3.21
Reserved..................................................
Section 3.22
Protected Accounts........................................
Section 3.23
Distribution Account......................................
Section 3.24
Permitted Withdrawals and Transfers from the Distribution
Account...................................................
Section 3.25
Class [ ]
Reserve Fund..............................
Section 3.26
Pre-Funding Account.......................................
Section 3.27
Capitalized Interest Account..............................
Section 3.28
Prepayment Penalty Verification...........................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS....................................
Section 4.1
Distributions to Certificateholders.......................
Section 4.2
Allocation Realized Losses................................
Section 4.3
Reduction of Certificate Principal Balances on the
Certificates..............................................
Section 4.4
Compliance with Withholding Requirements..................
Section 4.5
Distributions on the REMIC I Regular Interests............
Section 4.6
monthly statements to Certificateholders..................
Section 4.7
Advances..................................................
ARTICLE V
THE CERTIFICATES..........................................
Section 5.1
The Certificates..........................................
Section 5.2
Registration of Transfer and Exchange of Certificates.....
Section 5.3
Mutilated, Destroyed, Lost or Stolen Certificates.........
Section 5.4
Persons Deemed Owners.....................................
Section 5.5
Certain Available Information.............................
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER AND THE CREDIT RISK
MANAGER...................................................
Section 6.1
Liability of the Depositor and the Master Servicer........
Section 6.2
Merger or Consolidation of the Depositor or the Master
Servicer..................................................
Section 6.3
Limitation on Liability of the Depositor, the Master
Servicer, the Servicers, the Securities
Administrator and Others..................................
Section 6.4
Limitation on Resignation of the Master Servicer..........
Section 6.5
Assignment of Master Servicing............................
Section 6.6
Rights of the Depositor in Respect of the Master Servicer.
Section 6.7
Duties of the Credit Risk Manager.........................
Section 6.8
Limitation Upon Liability of the Credit Risk Manager......
Section 6.9
Removal of the Credit Risk Manager........................
Section 6.10
Transfer of Servicing by [ ] of
Certain Loans
Serviced by [
]......................................
ARTICLE VII
DEFAULT...................................................
Section 7.1
Master Servicer Events of Default.........................
Section 7.2
Trustee to Act; Appointment of Successor..................
Section 7.3
Notification to Certificateholders........................
Section 7.4
Waiver of Master Servicer Events of Default...............
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR...
Section 8.1
Duties of Trustee and Securities Administrator............
Section 8.2
Certain Matters Affecting Trustee and Securities
Administrator.............................................
Section 8.3
Trustee and Securities Administrator not Liable for
Certificates or Loans.....................................
Section 8.4
Trustee, Master Servicer and Securities Administrator May
Own Certificates..........................................
Section 8.5
Fees and Expenses of Trustee and Securities Administrator.
Section 8.6
Eligibility Requirements for Trustee and Securities
Administrator.............................................
Section 8.7
Resignation and Removal of Trustee and Securities
Administrator.............................................
Section 8.8
Successor Trustee or Securities Administrator.............
Section 8.9
Merger or Consolidation of Trustee or Securities
Administrator.............................................
Section 8.10
Appointment of Co-Trustee or Separate Trustee.............
Section 8.11
Appointment of Office or Agency...........................
Section 8.12
Representations and Warranties of the Trustee.............
Section 8.13
Reports Filed with Securities and Exchange Commission.....
Section 8.14
Intention of Parties and Interpretation...................
ARTICLE IX
TERMINATION...............................................
Section 9.1
Termination Upon Purchase or Liquidation of the Loans.....
Section 9.2
Additional Termination Requirements.......................
ARTICLE X
REMIC PROVISIONS..........................................
Section 10.1
REMIC Administration......................................
Section 10.2
Prohibited Transactions and Activities....................
Section 10.3
Indemnification...........................................
ARTICLE XI
MISCELLANEOUS PROVISIONS..................................
Section 11.1
Amendment.................................................
Section 11.2
Recordation of Agreement; Counterparts....................
Section 11.3
Limitation on Rights of Certificateholders................
Section 11.4
Governing Law.............................................
Section 11.5
Notices...................................................
Section 11.6
Severability of Provisions................................
Section 11.7
Notice to Rating Agencies.................................
Section 11.8
Article and Section References............................
Section 11.9
Grant of Security Interest................................
EXHIBITS
Exhibit A-1
-
Form of Class [ ]
Certificates
Exhibit A-2
- Form of Class [
]
Certificates
Exhibit A-3
-
Form of Class [ ]
Certificates
Exhibit A-4
-
Form of Class [ ]
Certificates
Exhibit A-5
-
Form of Class [ ]
Certificates
Exhibit A-6
- Form of Class [
]
Certificates
Exhibit A-7
-
Form of Class [ ]
Certificates
Exhibit A-8
-
Form of Class [ ]
Certificates
Exhibit A-9
-
Form of Class [ ]
Certificates
Exhibit A-10
- Form of Class [
]
Certificates
Exhibit A-11
-
Form of Class [ ]
Certificates
Exhibit A-12
-
Form of Class [ ]
Certificates
Exhibit B-1
-
Form of Rule 144A Investment Letter
Exhibit B-2
- Form of Investment Letter
(Non-Rule 144A)
Exhibit B-3
-
Form of Regulation S Transfer Certificate
Exhibit B-4
-
Form of Clearing System Certificate
Exhibit C
-
Form of Transfer Affidavit
Exhibit D
-
Form of Addition
Notice
Exhibit E
-
Form of Subsequent Transfer Instrument
Exhibit F
-
Servicing Criteria to Be Addressed in Assessment
of Compliance
Schedule One
-
Loan Schedule
Schedule Two
-
Prepayment Charge Schedule
Schedule Three -
Identified Subsequent Loans
<PAGE>
This Pooling and Servicing Agreement, dated and effective as of [
],
20[ ] (this "Agreement"), is executed by and among Deutsche Alt-A
Securities,
Inc., as depositor (the "Depositor"), [ ], as master servicer (the
"Master
Servicer") and securities administrator (the "Securities
Administrator"), and [
], [ ], 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. The Trust Fund will consist of a segregated pool of assets
comprised of
the Loans, the Subsequent Loans and certain other assets. On the
Closing Date,
the Depositor will acquire the Certificates from the Trust Fund as
consideration
for its transfer to the Trust Fund of the Loans and certain other
assets and
will be the owner of the Certificates. The Depositor has duly
authorized the
execution and delivery of this Agreement to provide for the
conveyance to the
Trustee of the Loans and the issuance to the Depositor of the
Certificates
representing in the aggregate the entire beneficial ownership of
the Trust Fund.
All covenants and agreements made by the Depositor, the Master
Servicer, the
Securities Administrator and the Trustee herein with respect to the
Loans and
the other property constituting the Trust Fund are for the benefit
of the
Holders from time to time of the Certificates. The Depositor, the
Master
Servicer, the Securities Administrator and the Trustee are entering
into this
Agreement, and the Trustee is accepting the trust created hereby,
for good and
valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged.
The Certificates issued hereunder, other than the [ ] Certificates
and
Class [ ] Certificates, have been offered for sale pursuant to a
Prospectus,
dated [ ], 20[ ], and a Prospectus Supplement, dated [ ], 20[ ] of
the Depositor
(together, the "Prospectus"). The [ ] Certificates have been
offered for sale
pursuant to a Private Placement Memorandum, dated [ ], 20[ ]. 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.
<PAGE>
REMIC I
As provided herein, the Trustee will make an election to treat
the
segregated pool of assets described in the definition of REMIC I
(as defined
herein), and subject to this Agreement, as a real estate mortgage
investment
conduit (a "REMIC") for federal income tax purposes and such
segregated pool of
assets will be designated as "REMIC I". The REMIC I Regular
Interests will be
the "regular interests" in REMIC I and Component [ ] of the Class [
]
Certificates will represent the sole Class of "residual interests"
in REMIC I
for purposes of the REMIC Provisions (as defined herein) under the
federal
income tax law. The following table irrevocably sets forth the
designation, the
Uncertificated REMIC I Pass-Through Rate, the initial
Uncertificated Principal
Balance, and for purposes of satisfying Treasury regulation
Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each
of the REMIC I
Regular Interests. None of the REMIC I Regular Interests will be
certificated.
<TABLE>
<CAPTION>
UNCERTIFICATED
INITIAL
REMIC I
REMIC I
UNCERTIFICATED
LATEST POSSIBLE
REGULAR INTEREST
DESIGNATION
PASS-THROUGH RATE
PRINCIPAL BALANCE
MATURITY DATE(1)
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(1) [For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the
latest
possible maturity date for the Loans has been designated as the
"latest
possible maturity date" for each REMIC I Regular Interest.]
(2)
[Calculated in accordance with the definition of "Uncertificated
REMIC
I Pass-Through Rate" herein.]
<PAGE>
As provided herein, the Trustee will make an election to treat
the
segregated pool of assets consisting of the REMIC I Regular
Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC II". Component [ ] of the Class [ ]
Certificates 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 Pass-Through Rate and initial
aggregate
Certificate Principal Balance for each Class of Certificates which,
together
with Component [ ], constitute the entire beneficial interests in
REMIC II.
Determined 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 Distribution Date in the month following
the maturity
date for the Loan with the latest maturity date:
<TABLE>
<CAPTION>
INITIAL AGGREGATE
CERTIFICATE
PRINCIPAL BALANCE OR
LATEST POSSIBLE
CLASS
DESIGNATION
NOTIONAL AMOUNT
PASS-THROUGH RATE
MATURITY DATE(1)
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(1) [The
Distribution Date in the month after the maturity date for the
latest maturing Loan. For purposes of Section 1.860G-1(a)(4)(iii)
of
the Treasury regulations, the Distribution Date in the month
following
the maturity date for the loan with the latest maturity date has
been
designated as the "latest possible maturity date" for each Class
of
Certificates.]
(2)
[Calculated in accordance with the definition of "Pass-Through
Rate"
herein. The Pass-Through Rate for the first Interest Accrual Period
for
the Class [ ], Class [ ], Class [ ], Class [ ], Class [ ], Class [
],
Class [ ], Class [ ], Class [ ], Class [ ] and Class [ ]
Certificates
for the first Interest Accrual Period is [ ]%, [ ]%, [ ]%, [ ]%, [
]%,
[ ]%, [ ]%, [ ]%, [ ]%, [ ]% and [ ]%, respectively.]
(3) [The Class
[ ] Certificates will accrue interest at the Pass-Through
Rate (calculated in accordance with the definition of
"Pass-Through
Rate" herein) on the Notional Amount of the Class [ ]
Certificates
calculated in accordance with the definition of "Notional
Amount"
herein. The Class [ ] Certificates will not be entitled to
distributions in respect of principal. ]
(4) [The Class
[ ] Certificates will accrue interest at the Pass-Through
Rate (calculated in accordance with the definition of
"Pass-Through
Rate" herein) on the Notional Amount of the Class [ ]
Certificates
calculated in accordance with the definition of "Notional
Amount"
herein. The Class [ ] Certificates will not be entitled to
distributions in respect of principal.]
(6) [The Class [ ]
Certificates will accrue interest at the Pass-Through
Rate (calculated in accordance with the definition of
"Pass-Through
Rate" herein) on the Notional Amount of the Class [ ]
Certificates
calculated in accordance with the definition of "Notional
Amount"
herein. The Class [ ] Certificates will not be entitled to
distributions in respect of principal. ]
(7) [The Class
[ ] Certificates will accrue interest at a per annum rate
equal to [ ]%.]
(8)
[Calculated in accordance with the definition of "Pass-Through
Rate"
herein. The subordinate pass-through rate for the first
Interest
Accrual Period is [ ]%.]
<PAGE>
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,
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, the Pre-Funding Account, the
Capitalized Interest Account and any Protected Account as the
context may
require.
ADDITION NOTICE: With respect to the transfer of Subsequent Loans
to
the Trust Fund pursuant to Section 2.6, a notice of the Depositor's
designation
of the Subsequent Loans to be sold to the Trust Fund and the
aggregate principal
balance of such Subsequent Loans as of the Subsequent Cut-off Date.
The Addition
Notice shall be given not later than [ ] Business Days prior to the
related
Subsequent Transfer Date and shall be substantially in the form
attached hereto
as Exhibit D.
ADJUSTABLE RATE CERTIFICATES: The Class [ ], Class [ ], Class [ ]
and
Class [ ] Certificates.
ADVANCE: Either (i) a Monthly Advance made by a Servicer as such
term
is defined in and pursuant to the related Servicing Agreement or
(ii) an advance
made by the Master Servicer or the Trustee pursuant to Section
4.7.
ADVERSE REMIC EVENT: As defined in Section 10.1(f).
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 a Servicer or the Depositor
to determine
whether any Person is an Affiliate of such party.
AGGREGATE SENIOR PERCENTAGE: With respect to any Distribution Date,
the
percentage equivalent of a fraction, the numerator of which is the
aggregate
Certificate Principal Balance of the Senior Certificates (other
than the Class [
], Class [ ], Class [ ], Class [ ] and Class [ ] Certificates)
immediately prior
to that Distribution Date, and the denominator of which is the sum
of the
Scheduled Principal Balances of the Loans as of the first day of
the related Due
Period (exclusive of the Group I Discount Fraction of the Scheduled
Principal
Balance of each Group I Discount Loan and the Group I Discount
Fraction of the
Scheduled Principal Balance of each Group I Discount Loan).
AGGREGATE SUBORDINATE AMOUNT: With respect to any date of
determination, an amount equal to the excess of the aggregate
Scheduled
Principal Balance of the Loans (exclusive of the Group I Discount
Fraction of
the Scheduled Principal Balance of each Group I Discount Loan and
the Group II
Discount Fraction of the Scheduled Principal Balance of each Group
II Discount
Loan) over the aggregate Certificate Principal Balance of the
Senior
Certificates (other than the Class [ ], Class [ ], Class [ ], Class
[ ] and
Class [ ] Certificates) then outstanding.
AGGREGATE SUBORDINATE PERCENTAGE: With respect to any
Distribution
Date, [ ]% minus the Aggregate Senior Percentage for that
Distribution Date.
AGREEMENT: This Pooling and Servicing Agreement and all amendments
and
supplements hereto.
[ ] MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan
Purchase
Agreement dated as of [ ], 20[ ] between the Depositor and [ ].
[ ] HOME SERVICING AGREEMENT: Shall mean the Master Mortgage
Loan
Purchase and Interim Servicing Agreement, dated as of [ ], 20[ ],
among [ ], [ ]
and [ ], as amended (as modified pursuant to the related Assignment
Agreement).
ANNIVERSARY: Each anniversary of the Cut-Off Date.
ANNUAL STATEMENT OF COMPLIANCE: As defined in Section 3.16.
APPRAISED VALUE: The amount set forth in an appraisal made by or
for
the mortgage originator in connection with its origination of each
Loan.
ASSESSMENT OF COMPLIANCE: As defined in Section 3.17.
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 [ ], 20[ ], among [ ], the
Depositor and [ ],
pursuant to which the [ ] Servicing Agreement was assigned to the
Depositor,
(ii) the Assignment, Assumption and Recognition Agreement, dated as
of [ ], 20[
], among [ ], the Depositor and [ ], pursuant to which the [ ]
Servicing
Agreement was assigned to the Depositor, (iii) the Assignment,
Assumption and
Recognition Agreement, dated as of [ ], 200[], among [ ], the
Depositor and [ ],
pursuant to which the [ ] Servicing Agreement was assigned to the
Depositor,
(iv) the Assignment, Assumption and Recognition Agreement, dated as
of [ ], 20[
], among [ ], the Depositor and [ ], pursuant to which the [ ]
Servicing
Agreement was assigned to the Depositor, (v) the Assignment,
Assumption and
Recognition Agreement, dated as of [ ], 200[], among DBSP, the
Depositor and [
], pursuant to which the [ ] Servicing Agreement was assigned to
the Depositor
and (vi) the Assignment, Assumption and Recognition Agreement (the
"[ ]
Assignment Agreement"), dated as of [ ], 20[ ], between the
Depositor and [ ],
pursuant to which the [ ] Servicing Agreement was assigned to the
Depositor.
ATTESTATION REPORT: As defined in Section 3.17.
AUTHORIZED DENOMINATION: With respect to the Certificates (other
than
the Class [ ] Certificates and Residual Certificates), a minimum
initial
Certificate Principal Balance or Notional Amount of $[ ] each and
integral
multiples of $[ ] in excess thereof as set forth on the face
thereof. With
respect to the Class [ ] Certificates, a minimum initial
Certificate Principal
Balance of $[ ] and integral multiples in excess thereof as set
forth on the
face thereof. With respect to the Class [ ] Certificates, one
Certificate with a
Percentage Interest equal to [ ]% as set forth on the face
thereof.
AVAILABLE DISTRIBUTION AMOUNT: Any of the Group I Available
Distribution Amount or Group II Available Distribution Amount.
BANKRUPTCY COVERAGE: As of the Cut-Off Date, $[ ]. Bankruptcy
Coverage
will be reduced, from time to time, by the amount of Bankruptcy
Losses allocated
to the Certificates.
BANKRUPTCY LOSS: Any Debt Service Reduction or Deficient
Valuation.
BASIS RISK CARRYOVER AMOUNT: With respect to the Class [ ]
Certificates, an amount equal to the sum of (i) the excess of (x)
the amount of
interest the Class [ ] Certificates would have been entitled to
receive on such
Distribution Date had the Pass-Through Rate applicable to the Class
[ ]
Certificates for such Distribution Date been equal to One-Month
LIBOR plus [ ]%
per annum over (y) the amount of interest paid on such Distribution
Date at a
rate equal to [ ]% per annum and (ii) the Basis Risk Carryover
Amount for the
previous Distribution Date not previously distributed, together
with interest
thereon at a rate equal to the Pass-Through Rate applicable to the
Class [ ]
Certificates for the most recently ended Interest Accrual Period
determined
without taking into account the fixed rate set forth in clause (y)
above.
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 Senior Certificates (other than the
Class
[ ] Certificates), Class [ ], Class [ ] and Class [ ]
Certificates.
BUSINESS DAY: Any day other than a Saturday, a Sunday, or a day
on
which banking institutions in Maryland, Minnesota or New York or
the city in
which the Corporate Trust Office of the Trustee is located, are
authorized or
obligated by law or executive order to be closed.
CAP CONTRACT: Shall mean the Cap Contract between the Trustee and
The
Bank of New York, together with any successor thereto, for the
benefit of the
Holders of the Class [ ] Certificates.
CAPITALIZED INTEREST ACCOUNT: The account established and
maintained
pursuant to Section 3.27.
CAPITALIZED INTEREST REQUIREMENT: On the Closing Date, $[ ], and on
any
date thereafter, [ ] interest accrued on the amount in the
Pre-Funding Account
at the weighted average of the Net Mortgage Rates of the Loans.
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
A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11 and A-12
hereto.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate or
Global
Certificate, the Person who is the beneficial owner of such
Certificate as
reflected on the books of the Depository or on the books of a
Depository
Participant or on the books of an Indirect Depository
Participant.
CERTIFICATE PRINCIPAL BALANCE: The Certificate Principal Balance
with
respect to any Senior Certificate (other than the Class [ ], Class
[ ] and Class
[ ] Certificates, which have no Certificate Principal Balance) and
any
Subordinate Certificate outstanding at any time, represents the
then maximum
amount that the holder of such Certificate is entitled to receive
as
distributions allocable to principal from the cash flow on the
Loans in the
related Loan Group and the other assets in the Trust Fund. The
Certificate
Principal Balance of a Senior Certificate (other than the Class [
], Class [ ]
and Class [ ] Certificates, which have no Certificate Principal
Balance) and any
Subordinate Certificate, as of any date of determination is equal
to the initial
Certificate Principal Balance of such Certificate reduced by the
aggregate of
(i) all amounts allocable to principal previously distributed with
respect to
that Certificate and (ii) any reductions in the Certificate
Principal Balance of
such Certificate deemed to have occurred in connection with
allocations of
Realized Losses, if any. The initial Certificate Principal Balance
of each Class
of Certificates is set forth in the Preliminary Statement hereto.
When used in
reference to a Class, the term Certificate Principal Balance means
the aggregate
of the Certificate Principal Balances of all Certificates of such
Class, and
when used in reference to a group of Certificates (such as the
Group I Senior
Certificates and Subordinate Certificates) shall mean the aggregate
Certificate
Principal Balances of all Classes of Certificates included in such
group.
CERTIFICATE REGISTER: The register maintained pursuant to Section
5.2.
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, [ ] or
the Master Servicer in determining whether a Certificate is held by
an Affiliate
thereof. All references herein to "Holders" or "Certificateholders"
shall
reflect the rights of Certificate Owners as they may indirectly
exercise such
rights through the Depository and participating members thereof,
except as
otherwise specified herein; provided, however, that the Trustee or
the
Securities Administrator shall be required to recognize as a
"Holder" or
"Certificateholder" only the Person in whose name a Certificate is
registered in
the Certificate Register.
CLASS: All Certificates having the same priority and rights to
payments
from the related Available Distribution Amount, designated as a
separate Class,
as set forth in the forms of Certificates attached hereto as
Exhibits A-1, A-2,
A-3, A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11 and A-12, as
applicable.
CLASS [ ] CERTIFICATES: The Class [ ], Class [ ], Class [ ], Class
[ ]
and Class [ ] Certificates.
CLASS [ ] CERTIFICATES: The Class [ ] Certificates and Class [
]
Certificates.
CLASS [ ] RESERVE FUND: The separate trust account created and
maintained by the Securities Administrator pursuant to Section 3.25
of this
Agreement for the benefit of the Class [ ] Certificates.
CLASS [ ]/CLASS [ ] PRIORITY AMOUNT: For any Distribution Date
shall
equal the lesser of (a) the Principal Distribution Amount for the
Group I Loans
and (b) the product of (i) the sum of the Principal Distribution
Amount and the
Principal Prepayment Amount for the Group I Mortgage loans
(exclusive of the
Group I Discount Fractional Principal Amount), (ii) the Class [
]/Class [ ]
Priority Percentage and (iii) the Shift Percentage.
CLASS [ ]/CLASS [ ] PRIORITY PERCENTAGE: For any Distribution
Date
shall be the percentage equivalent of a fraction, the numerator of
which is the
sum of the Certificate Principal Balances of the Class [ ]
Certificates and
Class [ ] Certificates, and the denominator of which is the
aggregate Scheduled
Principal Balance of the Group I Loans (exclusive of the applicable
Group I
Discount Fraction of the Scheduled Principal Balance of each Group
I Discount
Loan).
CLASS [ ]/CLASS [ ] PRIORITY AMOUNT: For any Distribution Date
shall
equal the lesser of (a) the Principal Distribution Amount for the
Group II Loans
and (b) the product of (i) the sum of the Principal Distribution
Amount and the
Principal Prepayment Amount for the Group II Loans (exclusive of
the Group II
Discount Fractional Principal Amount), (ii) the Class [ ]/Class [ ]
Priority
Percentage and (iii) the Shift Percentage.
CLASS [
]/CLASS [ ] PRIORITY PERCENTAGE: For any Distribution Date
shall be the percentage equivalent of a fraction, the numerator of
which is the
sum of the Certificate Principal Balances of the Class [ ]
Certificates and
Class [ ] Certificates, and the denominator of which is the
aggregate Scheduled
Principal Balance of the Group II Loans (exclusive of the
applicable Group II
Discount Fraction of the Scheduled Principal Balance of each Group
II Discount
Loan). 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.
CLEARING AGENCY PARTICIPANT: A broker, dealer, bank, other
financial
institution or other Person for whom the Clearing Agency effects
book-entry
transfers and pledges of securities deposited with the Clearing
Agency.
CLEARSTREAM: Clearstream, Luxembourg, societe anonyme (formerly
known
as Cedelbank), a corporation organized under the laws of the Duchy
of
Luxembourg.
CLOSING DATE: [ ], 20[ ].
CODE: The Internal Revenue Code of 1986, as amended.
COLLATERAL DEFICIENCY AMOUNT: With respect to a Loan Group and
any
Distribution Date prior to the Credit Support Depletion Date, the
amount by
which (i) the aggregate Certificate Principal Balance of the
related Senior
Certificates (other than the Class [ ], Class [ ] and Class [ ]
Certificates),
after giving effect to payments of principal (other than the
related Collateral
Deficiency Amount) on that Distribution Date exceeds (ii) the
Scheduled
Principal Balance of the Loans in the related Loan Group as of the
last day of
the related Due Period.
COMPENSATING INTEREST: For any Distribution Date (a) with respect
to
the Loans serviced by [ ], [ ], [ ] and [ ] pursuant to the [ ]
Servicing
Agreement, the lesser of (i) the aggregate Prepayment Interest
Shortfalls and
Curtailment Shortfalls for such Loans made during the related
Prepayment Period
and (ii) the aggregate Servicing Fee payable to such Servicer for
the related
Due Period, (b) with respect to the Loans serviced by [ ], the
lesser of (i) the
aggregate Prepayment Interest Shortfalls for such Loans made during
the related
Prepayment Period with respect to prepayments in full or in part
and (ii) the
aggregate Servicing Fee payable to [ ] for the related Due Period
and (c) with
respect to the Loans serviced by [ ] pursuant to the [ ] Servicing
Agreement,
the lesser of (i) the aggregate Prepayment Interest Shortfalls for
such Loans
made during the portion of the related Prepayment Period occurring
between the [
] day of the month preceding the month in which such Distribution
Date occurs
and ending on the last day of the calendar month preceding the
month in which
such Distribution Date occurs and (ii) the aggregate Servicing Fee
payable to [
] for the related Due Period.
COMPONENT [ ]: The uncertificated residual interest in REMIC I.
COMPONENT [ ]: The uncertificated residual interest in REMIC
II.
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, [ ] 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, [ ], Attention: [ ]
and (B) for all
other purposes, [ ], Attention: [ ], 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 each REMIC I Regular
Interest listed below, the corresponding Class of Regular
Certificates listed
below:
REMIC I Regular Interest
Class
------------------------
-----
[
]
[ ]
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 [ ] 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: [ ] per annum.
CREDIT RISK MANAGER: [ ] formerly known as [ ], a [ ] corporation,
and
its successors and assigns.
CREDIT SUPPORT DEPLETION DATE: The Distribution Date on which
the
aggregate Certificate Principal Balance of the Subordinate
Certificates has been
reduced to [ ], prior to giving effect to principal distributions
thereon and
the allocation of Realized Losses on such Distribution Date.
CROSS PAYMENT TRIGGER DATE: Any Distribution Date on which (i)
the
aggregate Certificate Principal Balance of the Senior Certificates
related to a
Loan Group (other than the Class [ ], Class [ ] and Class [ ]
Certificates) have
been reduced to [ ] and (ii) either (a) the Subordinate Percentage
of a Loan
Group is less than [ ]% times the related Subordinate Percentage as
of the
Closing Date, or (b) the aggregate Principal Balance of the Loans
(including
Loans in bankruptcy, foreclosure and REO) which are [ ] or more
days delinquent
(averaged over the preceding [ ]-month period), as a percentage of
the
Subordinate Amount of a Loan Group, is equal to or greater than [
]% as of such
Distribution Date.
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 Net
Mortgage Rate on
such Loan.
CUSTODIAL AGREEMENT: Either of the [ ] Custodial Agreement or the [
]
Custodial Agreement, or any other custodial agreement entered into
after the
date hereof with respect to any Loan subject to this Agreement.
CUSTODIAN: Either [ ] or [ ] or any other custodian appointed under
any
custodial agreement entered into after the date of this
Agreement.
CUT-OFF DATE: [ ], 20 [ ]; except that with respect to each
Substitute
Loan, the Cut-Off Date shall be the date of substitution.
[ ] Custodial Agreement: The Custodial Agreement dated as of [ ],
20 [
], among the Trustee, [ ] and [ ], as may be amended or
supplemented from time
to time.
[ ] MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan
Purchase
Agreement dated as of [ ], 20 [ ] between the Depositor and [
].
DEBT SERVICE REDUCTION: Any reduction of the amount of the
monthly
payment on a Loan made by a bankruptcy court in connection with a
personal
bankruptcy of a Mortgagor.
DEFICIENT VALUATION: In connection with a personal bankruptcy of
a
Mortgagor on a Loan, the positive difference, if any, resulting
from the
outstanding principal balance on a Loan less a bankruptcy court's
valuation of
the related Mortgaged Property.
DEFINITIVE CERTIFICATES: As defined in Section 5.1.
DELETED LOAN: A Loan replaced or to be replaced by a Substitute
Loan.
DEPOSITOR: Deutsche Alt-A Securities, Inc., a Delaware corporation,
or
its successor-in-interest.
DEPOSITORY: [ ], 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 [ ]. 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 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. With
respect to Article IX hereto, the [ ] day of the month or if such
day is not a
Business Day, the Business Day immediately following such [ ]
day.
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
Residual Certificate and of which a Disqualified Organization,
directly or
indirectly, may be a stockholder, partner or beneficiary.
DISTRIBUTION ACCOUNT: The separate trust account or accounts
created
and maintained by the Securities Administrator pursuant to Section
3.23, for the
benefit of the Certificateholders and designated [ ], in trust for
registered
holders of Deutsche Alt-A Securities, Inc. Mortgage Loan Trust,
Series [ ]."
Funds in the Distribution Account shall be held in trust for
the
Certificateholders for the uses and purposes set forth in this
Agreement. Each
Distribution Account must be an Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: With respect to each
Distribution
Date, the Business Day prior to such Distribution Date.
DISTRIBUTION DATE: The [ ] day (or, if such [ ] day is not a
Business
Day, the Business Day immediately succeeding such [ ] day) of each
month, with
the first such date being [ ], 20 [ ].
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,
the
period commencing on the second day of the month immediately
preceding the month
in which such Distribution Date occurs and ending on the first day
of the month
in which such Distribution Date occurs.
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 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, Freddie Mac, Fannie Mae 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]" and
"[Aaa]" in the case of S&P and Moody's (the initial rating of
the Senior
Certificates (other than the Class [ ] Certificates, which are
rated "[Aa1]" by
Moody's));
(c) demand and time deposits in or certificates of deposit of,
or
bankers' acceptances issued by, any bank or trust company, savings
and loan
association or savings bank, provided, that the short-term deposit
ratings
and/or long-term unsecured debt obligations of such depository
institution or
trust company (or in the case of the principal depository
institutions in a
holding company system, the commercial paper or long-term unsecured
debt
obligations of such holding company) have, in the case of
commercial paper, the
highest rating available for such securities by each Rating Agency
and, in the
case of long-term unsecured debt obligations, one of the two
highest ratings
available for such securities by each Rating Agency, or in each
case such lower
rating as will not result in the downgrading or withdrawal of the
rating or
ratings then assigned to any Class of Certificates by any Rating
Agency but in
no event less than the initial rating of the Senior
Certificates;
(d) general obligations of or obligations guaranteed by any state
of
the United States or the District of Columbia receiving one of the
two highest
long-term debt ratings available for such securities by each Rating
Agency, or
such lower rating as will not result in the 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 [ ]% 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 Senior Certificates;
and
(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 [ ]% of the yield to maturity at
par of such
underlying investment.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
EUROCLEAR: Euroclear Bank SA/NV, Brussels office, as operator of
the
Euroclear system.
EXCESS LOSS: A Special Hazard Loss incurred on a Loan in a Loan
Group
in excess of the Special Hazard Coverage, a Fraud Loss incurred on
a Loan in a
Loan Group in excess of the Fraud Coverage and a Bankruptcy Loss
incurred on a
Loan in a Loan Group in excess of the Bankruptcy Coverage.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
FANNIE MAE: Fannie Mae, formerly known as the Federal National
Mortgage
Association, or any successor thereto.
FDIC: Federal Deposit Insurance Corporation, or any successor
thereto.
FITCH: Fitch Ratings or any successor thereto.
FRAUD COVERAGE: As of the Cut-Off Date, will be [ ]. As of any date
of
determination after the Cut-Off Date, the Fraud Coverage will
generally be equal
to:
(1) on and after the first Anniversary, an amount equal to:
(a) [ ]% of
the aggregate Principal Balance of the Loans
as of the Cut-Off Date, minus
(b) the
aggregate amounts allocated to the Certificates
with respect to Fraud Losses on the Loans up to such
date of determination;
(2) from the second to and including the [ ] Anniversary, an
amount
equal to:
(a) [ ]% of
the aggregate Principal Balance of the Loans
as of the Cut-Off Date, minus
(b)
the
aggregate amounts allocated to the Certificates
with respect to Fraud Losses on the Loans up to such
date of determination;
(3) after the [ ] Anniversary, the Fraud Coverage will be [ ].
FRAUD LOSS: The occurrence of a loss on a Loan, as reported by
the
related Servicer, arising from any action, event or state of facts
with respect
to such Loan which, because it involved or arose out of any
dishonest,
fraudulent, criminal, negligent or knowingly wrongful act, error or
omission by
the Mortgagor, originator (or assignee thereof) of such Loan, or
the related
Servicer, would result in an exclusion from, denial of, or defense
to coverage
which otherwise would be provided by an insurance policy previously
issued with
respect to such Loan.
FREDDIE MAC: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
GLOBAL CERTIFICATE: A Regulation S Temporary Global Certificate or
a
Regulation S Permanent Global Certificate.
[ ] SERVICING AGREEMENT: The Servicing Agreement, dated as of [ ],
20[
], between [ ] and [ ] (as modified pursuant to the related
Assignment
Agreement).
[ ] 20[ ] SERVICING AGREEMENT: The Servicing Agreement, dated as of
[ ]
5, 20[ ], between [ ] and [ ] (as modified pursuant to the related
Assignment
Agreement).
[ ] SERVICING AGREEMENT: Shall mean the Amended and Restated
Master
Mortgage Loan Purchase and Servicing Agreement, dated as of [ ] 1,
20[ ],
between [ ] and [ ], as amended (as modified pursuant to the
related Assignment
Agreement).
GROUP I AVAILABLE DISTRIBUTION AMOUNT: With respect to a
Distribution
Date, the sum of the following amounts that are related to the
Group I Loans:
(1)
the total
amount of all cash received by or on behalf of each
Servicer with respect to the Group I Loans by the
Determination Date for such Distribution Date and not
previously distributed (including Liquidation Proceeds,
Insurance Proceeds, condemnation proceeds and Subsequent
Recoveries) and with respect to any Distribution Date during
the Pre-Funding Period, any related Capitalized Interest
Requirement for such Distribution Date, and with respect to
any Distribution Date immediately following the termination of
the Pre-Funding Period, any Remaining Pre-Funded Amount
(exclusive
of any investment income therein), except:
(a) all
scheduled payments of principal and interest
collected on the Group I Loans but due on a date
after the related Due Date;
(b) all
Curtailments received with respect to the Group I
Loans after the related Prepayment Period, together
with all interest paid by the Mortgagors in
connection with such Curtailments;
(c) all
Payoffs received with respect to the Group I
Loans after the related Prepayment Period, together
with all interest paid by the Mortgagors in
connection with such Payoffs;
(d)
Liquidation Proceeds, Insurance Proceeds,
condemnation proceeds and Subsequent Recoveries
received on the Group I Loans after the related
Prepayment Period;
(e) all
amounts reimbursable to the related Servicer
pursuant to the terms of the related Servicing
Agreement or to the Master Servicer, the Securities
Administrator, the Trustee or the Custodians pursuant
to the terms of this Agreement or the Custodial
Agreements;
(f)
reinvestment income on the balance of funds, if any,
in the Protected Accounts, the Distribution Account
or the Pre-Funding Account;
(g) any fees
payable to the Master Servicer (including
any Master Servicing Fees), the Servicers and the
Credit Risk Manager with respect to the Group I
Loans, and any premiums payable in connection with
any lender paid primary mortgage insurance policies
maintained on the Group I Loans; and
(h) all
Prepayment Charges received in connection with
the Group
I Loans;
(2) all
Advances made by a Servicer and/or the Master Servicer or
the Trustee with respect to the Group I Loans for that
Distribution Date;
(3) any
amounts paid as Compensating Interest on the Group I Loans
by a Servicer and/or the Master Servicer for that Distribution
Date;
(4) the total
amount of any cash related to the Group I Loans
deposited in the Distribution Account in connection with the
repurchase of any Group I Loan by the Depositor, [ ] or [ ];
and
(5) the total
amount of any cash related to the Group I Loans
deposited in the Distribution Account in connection with an
optional termination of the Trust Fund.
GROUP I DISCOUNT FRACTION: With respect to any Distribution Date
and a
Group I Discount Loan, will be a fraction, the numerator of which
is [ ]% minus
the Net Mortgage Rate as of the Cut-Off Date of such Group I
Discount Loan, and
the denominator of which is [ ]%.
GROUP I DISCOUNT FRACTIONAL PRINCIPAL AMOUNT: For any Distribution
Date
and the Group I Loans will be the aggregate of the following with
respect to
each Group I Discount Loan: the Group I Discount Fraction of the
amounts
described in the definition of Principal Distribution Amount,
Principal
Prepayment Amount and Liquidation Principal.
GROUP I DISCOUNT FRACTIONAL PRINCIPAL SHORTFALL: For any
Distribution
Date (i) prior to the Credit Support Depletion Date, an amount
generally equal
to the sum of:
(1) the
aggregate of the following with respect to each
Group I Discount Loan: the Group I Discount Fraction
of any loss (meaning a Fraud Loss, Special Hazard
Loss, Bankruptcy Loss or the amount by which the
outstanding Principal Balance thereof exceeded the
Liquidation Principal and Insurance Proceeds received
in respect thereof) on such Group I Discount Loan,
other than a Special Hazard Loss in excess of the
Special Hazard Coverage, a Fraud Loss in excess of
the Fraud Coverage or a Bankruptcy Loss in excess of
the Bankruptcy Coverage; and
(2) the
amounts described in clause (1) above for all
prior Distribution Dates to the extent not previously
distributed, and
(ii) for any Distribution Date on or after the Credit
Support Depletion Date, zero.
GROUP I DISCOUNT LOAN: Any Group I Loan with a Net Mortgage Rate as
of
the Cut-Off Date of less than [ ]% per annum.
GROUP I LOANS: Those Loans having original terms to maturity
not
greater than [ ] years and identified on the Loan Schedule as Group
I Loans.
GROUP I NON-DISCOUNT LOAN: Any Group I Loan with a Net Mortgage
Rate as
of the Cut-Off Date greater than or equal to [ ]% per annum.
GROUP I SENIOR CERTIFICATES: The Class [ ], Class [ ], Class [ ],
Class
[ ], Class [ ], Class [ ], Class [ ], Class [ ], Class [ ], Class [
] and Class
[ ] Certificates.
GROUP II AVAILABLE DISTRIBUTION AMOUNT: With respect to a
Distribution
Date, the sum of the following amounts that are related to the
Group II Loans:
(1)
the total amount of all cash received by or on behalf
of each Servicer with respect to the Group II Loans
by the Determination Date for such Distribution Date
and not previously distributed (including Liquidation
Proceeds, Insurance Proceeds, condemnation proceeds
and Subsequent Recoveries), except:
(a) all
scheduled payments of principal and
interest collected on the Group II Loans but
due on a date after the related Due Date;
(b) all
Curtailments received with respect to
the Group II Loans after the related
Prepayment Period, together with all
interest paid by the Mortgagors in
connection with such Curtailments;
(c) all
Payoffs received with respect to the
Group II Loans after the related Prepayment
Period, together with
interest paid by the
Mortgagors in connection with such Payoffs;
(d)
Liquidation Proceeds, Insurance Proceeds,
condemnation proceeds and Subsequent
Recoveries received on the Group II Loans
after the related Prepayment Period;
(e) all
amounts reimbursable to the related
Servicer pursuant to the terms of the
related Servicing Agreement or to the Master
Servicer, the Securities Administrator, the
Trustee or the Custodians pursuant to the
terms of this Agreement or the Custodial
Agreements;
(f)
reinvestment income on the balance of funds,
if any, in the Protected Accounts or the
Distribution Account;
(g) any fees
payable to the Master Servicer
(including any Master Servicing Fees), the
Servicers and the Credit Risk Manager with
respect to the Group II Loans, and any
premiums payable in connection with any
lender paid primary mortgage insurance
policies maintained on the Group II Loans;
and
(h) all
Prepayment Charges received in
connection with the Group II Loans;
(2) All
Advances made by a Servicer and/or the Master Servicer or
the Trustee with respect to the Group II Loans for that
Distribution Date;
(3) Any
amounts paid as Compensating Interest on the Group II
Loans by a Servicer and/or the Master Servicer for that
Distribution Date;
(4) The total
amount of any cash related to the Group II Loans
deposited in the Distribution Account in connection with the
repurchase of any Group II Loan by the Depositor, [ ] or [ ];
and
(5) the total
amount of any cash related to the Group II Loans
deposited in the Distribution Account in connection with an
optional termination of the Trust Fund.
GROUP II DISCOUNT FRACTION: With respect to any Distribution Date
and a
Group II Discount Loan, will be a fraction, the numerator of which
is [ ]% minus
the Net Mortgage Rate as of the Cut-Off Date of such Group II
Discount Loan, and
the denominator of which is [ ]%.
GROUP II DISCOUNT FRACTIONAL PRINCIPAL AMOUNT: For any
Distribution
Date and the Group II Loans will be the aggregate of the following
with respect
to each Group II Discount Loan: the Group II Discount Fraction of
the amounts
described in the definition of Principal Distribution Amount,
Principal
Prepayment Amount and Liquidation Principal.
GROUP II DISCOUNT FRACTIONAL PRINCIPAL SHORTFALL: For any
Distribution
Date (i) prior to the Credit Support Depletion Date, an amount
generally equal
to the sum of:
(1) the
aggregate of the following with respect to each
Group II Discount Loan: the Group II Discount
Fraction of any loss (meaning a Fraud Loss, Special
Hazard Loss, Bankruptcy Loss or the amount by which
the outstanding Principal Balance thereof exceeded
the Liquidation Principal and Insurance Proceeds
received in respect thereof) on such Group II
Discount Loan, other than a Special Hazard Loss in
excess of the Special Hazard Coverage, a Fraud Loss
in excess of the Fraud Coverage or a Bankruptcy Loss
in excess of the Bankruptcy Coverage; and
(2) the
amounts described in clause (1) above for all
prior Distribution Dates to the extent not previously
distributed, and
(ii)
for any Distribution Date on or after the Credit
Support Depletion Date, [ ].
GROUP II DISCOUNT LOAN: Any Group II Loan with a Net Mortgage Rate
as
of the Cut-Off Date of less than [ ]% per annum.
GROUP II LOANS: Those Loans having original terms to maturity
not
greater than [ ] years and identified on the Loan Schedule as Group
II Loans.
The aggregate principal balance of the Group II Loans as of the
Cut-Off Date is
equal to approximately $[ ].
GROUP II NON-DISCOUNT LOAN: Any Group II Loan with a Net Mortgage
Rate
as of the Cut-Off Date greater than or equal to [ ]% per annum.
GROUP II SENIOR CERTIFICATES: The Class [ ], Class [ ], Class [
],
Class [ ], Class [ ] and Class [ ] Certificates.
INDEPENDENT: When used with respect to any specified Person, any
such
Person who (i) is in fact independent of the Depositor, any
Servicer, the Master
Servicer and the Securities Administrator, (ii) does not have any
direct
financial interest or any material indirect financial interest in
the Depositor,
any Servicer, the Master Servicer or the Securities Administrator
or any
Affiliate of the aforementioned and (iii) is not connected with the
Depositor,
any Servicer, the Master Servicer or the Securities Administrator
as an officer,
employee, promoter, underwriter, trustee, partner, director or
person performing
similar functions.
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.
INITIAL GROUP I LOAN: Any of the Group I Loans included in the
Trust
Fund as of the Closing Date. The aggregate principal balance of the
Initial
Group I Loans as of the Cut-Off Date is equal to $[ ].
INSURANCE PROCEEDS: Proceeds of any title policy, hazard policy
or
other insurance policy covering a Loan, to the extent such proceeds
are not to
be applied to the restoration of the related Mortgaged Property or
released to
the Mortgagor in accordance with the applicable Servicing
Agreement.
INTEREST ACCRUAL PERIOD: For the Certificates other than the
Adjustable
Rate Certificates will be the calendar month preceding the month in
which that
Distribution Date occurs. The Interest Accrual Period for the
Adjustable Rate
Certificates will be (a) as to the Distribution Date in [ ], the
period
commencing on [ ], 20[ ], and ending on the day preceding the
Distribution Date
in [ ], and (b) as to any Distribution Date after the Distribution
Date in [ ],
the period commencing on the Distribution Date in the month
immediately
preceding the month in which that Distribution Date occurs and
ending on the day
preceding that Distribution Date. Interest on the Certificates will
be
calculated based on a 360-day year consisting of twelve 30-day
months regardless
of the actual number of days in the related Interest Accrual
Period.
INTEREST DISTRIBUTION AMOUNT: On any Distribution Date, for any
Class
of Certificates (other than the Class [ ], Class [ ], Class [ ] and
Class [ ]
Certificates), the sum of (i) interest accrued on the related
Certificate which
shall be equal to (a) the product of (1) [ ] of the Pass-Through
Rate for such
Class and (2) the aggregate Certificate Principal Balance or
Notional Amount, as
applicable, for such Class before giving effect to allocations of
Realized
Losses in connection with such Distribution Date or distributions
to be made on
such Distribution Date, reduced by (b) Net Interest Shortfalls
allocated to such
Class pursuant to the definition of "Net Interest Shortfall",
including the
interest portion of Realized Losses allocated to such Class
pursuant to Section
4.2 and (ii) the amount of interest accrued but unpaid to such
Class from prior
Distribution Dates.
INVESTMENT WITHDRAWAL DISTRIBUTION DATE: As defined in Section
3.23(c).
JUNIOR SUBORDINATE CERTIFICATES: The Class [ ], Class [ ] and Class
[ ]
Certificates, collectively.
LAST SCHEDULED
DISTRIBUTION DATE: The Distribution Date in [ ], which
is the Distribution Date immediately following the maturity date
for the Loan
with the latest maturity date.
LIBOR: For the initial Interest Accrual Period, the Securities
Administrator will determine One-Month LIBOR for such Interest
Accrual Period
based on information available on the second Business Day preceding
the Closing
Date with respect to the Adjustable Rate Certificates, and for any
Interest
Accrual Period thereafter, on the second Business Day preceding the
related
Interest Accrual Period, the one-month rate which appears on the
Dow Jones
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.
The establishment of LIBOR and each Pass-Through Rate for the
Adjustable Rate Certificates by the Securities Administrator shall
(in the
absence of manifest error) be final, conclusive and binding upon
each Holder of
an Adjustable Rate Certificate and the Securities
Administrator.
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 PRINCIPAL: With respect to any Distribution Date and
any
Loan Group, the principal portion of net Liquidation Proceeds
received with
respect to each such Loan which became a Liquidated Loan (but not
in excess of
the Principal Balance thereof) during the related Prepayment
Period.
LIQUIDATION PROCEEDS: The amount (other than Insurance Proceeds
or
amounts received in respect of the rental of any REO Property prior
to REO
Disposition) received by the related Servicer pursuant to the
related Servicing
Agreement in connection with (i) the taking of all or a part of a
Mortgaged
Property by exercise of the power of eminent domain or
condemnation, (ii) the
liquidation of a defaulted Loan through a 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, in each
case net of any portion thereof that represents a recovery of
principal or
interest for which an Advance was made by a Servicer or the Master
Servicer.
LOAN DOCUMENTS: The documents evidencing or relating to each
Loan
delivered to the Custodian under the Custodial Agreement on behalf
of the
Trustee.
LOAN GROUP: The Group I Loans and Group II Loans, as
applicable.
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;
(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;
(xiv) the
related Loan Group;
(xv)
the applicable Servicer; and
(xvi) the
applicable Custodian.
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".
After each Subsequent Transfer Date, Loans shall include any
Subsequent Loans
transferred to the Trust on such Subsequent Transfer Date.
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.
MASTER SERVICER: As of the Closing Date, [ ] and thereafter,
its
respective successors in interest who meet the qualifications of
this Agreement.
The Master Servicer and the Securities Administrator shall at all
times be the
same Person or Affiliates.
MASTER SERVICER EVENT OF DEFAULT: One or more of the events
described
in Section 7.1 hereof.
MASTER SERVICING COMPENSATION: As defined in Section 3.14(a).
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: [ ]% per annum.
MONTHLY ADVANCE: As to any Loan or REO Property, any advance made
by a
Servicer in respect of any Determination Date or in respect of any
Distribution
Date by a successor Servicer or by the Master Servicer or the
Trustee pursuant
to Section 4.7 of this Agreement (which advances shall not include
principal or
interest shortfalls due to bankruptcy proceedings or application of
the Relief
Act or similar state or local laws.)
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: Moody's 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 or the [ ] Mortgage Loan Purchase Agreement, as
applicable.
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.
[ ] SERVICING AGREEMENT: The Master Seller's Warranties and
Servicing
Agreement, dated as of [ ], 20[ ], between [ ] and [ ], as amended
(as modified
pursuant to the related Assignment Agreement).
NET INTEREST SHORTFALL: For any Distribution Date, the sum of (i)
any
Prepayment Interest Shortfall for such Distribution Date, (ii) any
Relief Act
Interest Shortfall for such Distribution Date and (iii) the portion
of Realized
Losses attributable to interest allocated to the Certificates.
NET MORTGAGE RATE: For each Loan and for any date of determination,
a
per annum rate equal to the Mortgage Interest Rate for such Loan
less the
related Servicing Fee Rate, the Master Servicing Fee Rate, the
Credit Risk
Management Fee Rate and the rate at which any lender paid mortgage
insurance is
calculated.
NONRECOVERABLE ADVANCE: With respect to any Loan, any Advance
or
Servicing Advance which the related Servicer shall have determined
to be a
Nonrecoverable Advance as defined in and pursuant to the related
Servicing
Agreement, or which the Master Servicer shall have determined to
be
nonrecoverable pursuant to Section 4.7, respectively, and which
was, or is
proposed to be, made by such Servicer or the Master Servicer.
NON-U.S. PERSON: A Person that is not a U.S. Person.
NOTIONAL AMOUNT: With respect to the Class [ ] Certificates and
any
Distribution Date, an amount equal to the Certificate Principal
Balance of the
Class [ ] Certificates. For federal income tax purposes the
Notional Amount of
the Class [ ] Certificates will equal the Uncertificated Principal
Balance of
REMIC I Regular Interest [ ].
With respect to the Class [ ] Certificates and any Distribution
Date,
an amount equal to the aggregate Principal Balance of the Group I
Loans.
With respect to the Class [ ] Certificates and any Distribution
Date,
an amount equal to the aggregate Principal Balance of the Group II
Loans.
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 CAPITALIZED INTEREST AMOUNT: The amount deposited by
the
Depositor in the Capitalized Interest Account on the Closing Date,
which amount
is $[ ].
ORIGINAL PRE-FUNDED AMOUNT: The amount deposited by the Depositor
in
the Pre-Funding Account on the Closing Date, which amount is $[
].
ORIGINAL VALUE: With respect to any Loan other than a Loan
originated
for the purpose of refinancing an existing mortgage debt, the
lesser of (a) the
Appraised Value (if any) of the Mortgaged Property at the time the
Loan was
originated or (b) the purchase price paid for the Mortgaged
Property by the
Mortgagor. With respect to a Loan originated for the purpose of
refinancing
existing mortgage debt, the Original Value shall be equal to the
lesser of (a)
the Appraised Value of the Mortgaged Property at the time the Loan
was
originated or (b) the appraised value at the time the refinanced
mortgage debt
was incurred.
OTS: The Office of Thrift Supervision, or any successor
thereto.
OWNERSHIP INTEREST: With respect to any 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 [ ] Certificates and
the
Distribution Date in [ ] 2005, [ ]% per annum, and with respect to
any
Distribution Date thereafter, a per annum rate equal to the least
of (a)
One-Month LIBOR plus [ ]% and (b) [ ]%.
With respect to the Class [ ] Certificates and the Distribution
Date in
[ ], [ ]% per annum, and with respect to any Distribution Date
thereafter, a per
annum rate equal to the lesser of (i) the excess, if any, of [ ]%
over the
Pass-Through Rate applicable to the Class [ ] Certificates and (ii)
[ ]%, but
such rate will not be less than [ ] for any Distribution Date. For
federal
income tax purposes, the Pass-Through Rate on the Class [ ]
Certificates will be
a per annum rate equal the Uncertificated REMIC I Pass-Through Rate
on REMIC I
Regular Interest [ ] minus the applicable Pass-Through Rate for the
Class [ ]
Certificates for such Distribution Date, but will not be less than
[ ] for any
Distribution Date.
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to
the Class [ ] Certificates and any Distribution Date, [
]% per annum.
With respect to the Class [ ] Certificates and the Distribution
Date in
[ ], [ ]% per annum, and with respect to any Distribution Date
thereafter, a per
annum rate equal to the lesser of (a) One-Month LIBOR plus [ ]% and
(b) [ ]%.
With respect to the Class [ ] Certificates and the Distribution
Date in
[ ] , [ ]% per annum, and with respect to any Distribution Date
thereafter, a
rate per annum equal to the excess of (a) [ ]% over (b) the product
of (i)
One-Month LIBOR and (ii) [ ], but such rate will not be less than [
] for any
Distribution Date.
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to the Class [ ] Certificates and the Distribution
Date in
[ ], [ ]% per annum, and with respect to any Distribution Date
thereafter, a per
annum rate equal to the excess of (i) the weighted average of the
Net Mortgage
Rates of the Group II Loans over (b) [ ]%, but will not be less
than [ ] on any
Distribution Date. For purpose of this calculation, the Group I
Discount Loans
are assumed to have a Net Mortgage Rate of [ ]%. For federal income
tax purposes
the Class [ ] Certificates will not have a Pass-Through Rate but
will be
entitled to [ ]% of the amounts distributed on REMIC I Regular
Interest [ ].
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to the Class [ ] Certificates and the Distribution
Date in
[ ], [ ]% per annum, and with respect to any Distribution Date
thereafter, a per
annum rate equal to the excess of (i) the weighted average of the
Net Mortgage
Rates of the Group II Loans over (b) [ ]%, but will not be less
than [ ] on any
Distribution Date. For the purpose of this calculation, the Group
II Discount
Loans are assumed to have a Net Mortgage Rate of [ ]%. For federal
income tax
purposes the Class [ ] Certificates will not have a Pass-Through
Rate but will
be entitled to [ ]% of the amounts distributed on REMIC I Regular
Interest [ ].
With respect to the Class [ ] Certificates and any Distribution
Date, [
]% per annum.
With respect to the Subordinate Certificates and any Distribution
Date,
[ ]% per annum.
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
or Notional Amount represented by such Certificate and the
denominator of which
is the aggregate initial Certificate Principal Balance or Notional
Amount of all
of the Certificates of such Class. Each Certificate is issuable
only in minimum
Percentage Interests corresponding to the Authorized Denomination
of the related
Class of Certificates; provided, however, that a single Certificate
of each such
Class of Certificates may be issued having a Percentage Interest
corresponding
to the remainder of the aggregate initial Certificate Principal
Balance or
Notional Amount of such Class or to an otherwise Authorized
Denomination for
such Class plus such remainder. With respect to any Residual
Certificate, the
undivided percentage ownership in such Class evidenced by such
Certificate, is
as set forth on the face of such Certificate.
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 (which shall not be an expense of the
Securities
Administrator or the Trustee) that the transfer of an Ownership
Interest in a
Residual Certificate to such Person may cause any REMIC hereunder
to fail to
qualify as a REMIC at any time that the Certificates are
outstanding. The terms
"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 Freddie Mac, a majority of its board of
directors is
not selected by such governmental unit.
PERSON: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
PLAN ASSETS: As defined in Section 5.2.
PRE-FUNDING ACCOUNT: The account established and maintained
pursuant to
Section 3.26.
PRE-FUNDING PERIOD: The period from the Closing Date until the
earlier
of (i) the date on which the amounts on deposit in the Pre-Funding
Account
(exclusive of investment income) is reduced to zero or (ii) [ ],
20[ ].
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, as set forth on the Prepayment Charge Schedule.
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.
PREPAYMENT PERIOD: For any Distribution Date is (i) with respect to
the
Loans serviced by National City, the period commencing on the
second day of the
month preceding the month in which such Distribution Date occurs
and ending on
the first day of the month in which such Distribution Date occurs,
(ii) with
respect to the Loans serviced by [ ], the Loans serviced by [ ] ,
the Loans
serviced by [ ] and the Loans serviced by [ ] pursuant to the [ ]
Servicing
Agreement, the calendar month immediately preceding the month in
which such
Distribution Date occurs and (iii) with respect to the Loans
serviced by [ ]
pursuant to the [ ] Servicing Agreement, the period commencing on
the [ ] of the
month preceding the month in which such Distribution Date occurs
and ending on
the [ ] of 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 or Subsequent Cut-Off Date, as applicable,
after deduction
of all principal payments due on or before the Cut-Off Date or
Subsequent
Cut-Off Date, as applicable, whether or not received, reduced by
the principal
portion of all amounts received with respect to such Loan after the
Cut-Off Date
or Subsequent Cut-Off Date, as applicable, and distributed or to be
distributed
to Certificateholders through the Distribution Date in the month of
such
determination. In the case of a Substitute Loan, "Principal
Balance" shall mean,
at the time of any determination, the principal balance of such
Substitute Loan
on the related Cut-Off Date or Subsequent Cut-Off Date, as
applicable, reduced
by the principal portion of all amounts received with respect to
such Loan after
the Cut-Off Date or Subsequent Cut-Off Date, as applicable, and
distributed or
to be distributed to Certificateholders through the Distribution
Date in the
month of determination. The Principal Balance of a Liquidated Loan
shall be [ ].
PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date
and a Loan Group, the sum of:
(1) scheduled
principal payments on the Loans in the related Loan Group due
during the related Due Period;
(2) the
principal portion of repurchase proceeds received with respect
to
the Loans in the related Loan Group which were repurchased as
permitted
or required by this Agreement during the related Prepayment Period;
and
(3) any other
unscheduled payments of principal which were received on the
Loans in the related Loan Group during the related Prepayment
Period,
other than Payoffs, Curtailments or Liquidation Principal.
PRINCIPAL PREPAYMENT: Any payment of principal on a Loan which
constitutes a Payoff or a Curtailment.
PRINCIPAL PREPAYMENT AMOUNT: On any Distribution Date and for any
Loan
Group, the sum of (i) Curtailments received during the related
Prepayment
Period, (ii) Payoffs received during the related Prepayment Period
and (iii)
Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries
received
during the related Prepayment Period.
PRO RATA ALLOCATION: On any Distribution Date with respect to (a)
the
allocation of the principal portion of certain losses relating to a
Loan to the
related Senior Certificates (other than the Class [ ], Class [ ],
Class [ ],
Class [ ] and Class [ ] Certificates) and/or to the Subordinate
Certificates, as
applicable, pro rata according to their respective aggregate
Certificate
Principal Balances on such date of allocation (except that if the
loss is
incurred with respect to a Group I Discount Loan, the Group I
Discount Fraction
of such loss will be allocated to the Class [ ] Certificates, and
the remainder
of such loss will be allocated as described above in this
definition without
regard to this parenthetical and if the loss is incurred with
respect to a Group
II Discount Loan, the Group II Discount Fraction of such loss will
be allocated
to the Class [ ] Certificates, and the remainder of such loss will
be allocated
as described above in this definition without regard to this
parenthetical);
provided that (i) the Pro Rata Allocation of any such loss
allocable to the
Class [ ] Certificates and Class [ ] Certificates will be allocated
first to the
Class [ ] Certificates, up to a maximum amount of $[ ] with respect
to the Class
[ ] Certificates, and up to a maximum amount of $[ ] with respect
to the Class [
] Certificates, until the Certificate Principal Balance of the
Class [ ]
Certificates has been reduced to [ ], and then to the Class [ ]
Certificates and
Class [ ] Certificates, respectively, until the Certificate
Principal Balance of
each such Class has been reduced to [ ], and (ii) the Pro Rata
Allocation of any
such loss allocable to the Class [ ] Certificates will be allocated
first to the
Class [ ] Certificates until the Certificate Principal Balance of
the Class [ ]
Certificates has been reduced to [ ], and then to the Class [ ]
Certificates
until the Certificate Principal Balance of the Class [ ]
Certificates has been
reduced to [ ], and (b) the allocation of interest portion of
certain losses
relating to a Loan to the related Senior Certificates (other than
the Class [ ]
Certificates and Class [ ] Certificates) and/or to the Subordinate
Certificates,
as applicable, pro rata, first according to the Interest
Distribution Amounts
due to such Classes on such date of allocation, in reduction
thereof until the
amount of interest accrued but unpaid on such Distribution Date has
been reduced
to zero and then pro rata, according to their outstanding
Certificate Principal
Balances in reduction thereof until the Certificate Principal
Balances thereof
have been reduced to zero; provided that (i) the Pro Rata
Allocation of any such
loss allocable to the Class [ ] Certificates and Class [ ]
Certificates will be
allocated first to the Class [ ] Certificates up to a maximum
amount of $[ ]
with respect to the Class [ ] Certificates, and up to a maximum
amount of $[ ]
with respect to the Class [ ] Certificates, until the Certificate
Principal
Balance of the Class [ ] Certificates has been reduced to zero, and
then to the
Class [ ] Certificates and Class [ ] Certificates until the
Certificate
Principal Balance of each such Class has been reduced to [ ], and
(ii) the Pro
Rata Allocation of any such loss allocable to the Class [ ]
Certificates will be
allocated first to the Class [ ] Certificates, until the
Certificate Principal
Balance of the Class [ ] Certificates has been reduced to zero, and
then to the
Class [ ] Certificates, until the Certificate Principal Balance of
the Class [ ]
Certificates has been reduced to [ ] .
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 [ ]
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) [ ]% 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, [ ]%
of the fair market value of such REO Property), (ii) in the case of
(x) a Loan,
accrued interest on such Principal Balance at the applicable Net
Mortgage Rate
from the date interest was last paid by the related Mortgagor or
advanced by the
applicable Servicer or the Master Servicer, which payment or
Advance had as of
the date of purchase been distributed pursuant to Section 4.1,
through the end
of the calendar month in which the purchase is to be effected and
(y) an REO
Property, the sum of (1) accrued interest on such Principal Balance
at the
applicable Net Mortgage Rate from the date interest was last paid
by the related
Mortgagor or advanced by the applicable Servicer or the Master
Servicer through
the end of the calendar month immediately preceding the calendar
month in which
such REO Property was acquired, plus (2) REO Imputed Interest for
such REO
Property for each calendar month commencing with the calendar month
in which
such REO Property was acquired and ending with the calendar month
in which such
purchase is to be effected, net of the total of all net rental
income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of
purchase had
been distributed as or to cover REO Imputed Interest in accordance
with the
applicable Servicing Agreement, (iii) any unreimbursed Servicing
Advances and
Advances (including Nonrecoverable Advances) and any unpaid
Servicing Fees or
Master Servicing Fees allocable to such Loan or REO Property and
(iv) in the
case of a Loan required to be purchased pursuant to Section 2.3,
expenses
reasonably incurred or to be incurred by the Master Servicer, the
Servicers, the
Trustee or the Securities Administrator in respect of the breach or
defect
giving rise to a Purchase Obligation and any costs and damages
incurred by the
Trust Fund in connection with any violation by any such Loan of any
predatory or
abusive lending law.
RATING AGENCY: Initially, each of Moody's and S&P; thereafter,
each
nationally recognized statistical rating organization that has
rated the
Certificates at the request of the Depositor, or their respective
successors in
interest.
RATINGS: As of any date of determination, the ratings, if any, of
the
Certificates as assigned by each Rating Agency.
REALIZED LOSS: With respect to any Distribution Date and any
Liquidated
Loan which became a Liquidated Loan during the related Prepayment
Period, the
sum of (i) the Principal Balance of such Loan remaining outstanding
(after all
recoveries of principal, including net Liquidation Proceeds, have
been applied
thereto) and the principal portion of Nonrecoverable Advances with
respect to
such Loan which have been reimbursed from amounts received in
respect of the
Loans in such Loan Group other than the related Loan, and (ii) the
accrued
interest on such Loan remaining unpaid and the interest portion
of
Nonrecoverable Advances with respect to such Loan which have been
reimbursed
from amounts received in respect of the Loans in such Loan Group
other than the
related Loan. The amounts described in clause (i) shall be the
principal portion
of Realized Losses and the amounts described in clause (ii) shall
be the
interest portion of Realized Losses. In addition, to the extent a
Servicer
receives Subsequent Recoveries with respect to any defaulted Loan,
the amount of
the Realized Loss with respect to that defaulted Loan will be
reduced to the
extent such recoveries are applied to reduce the Certificate
Principal Balance
of any Class of Certificates on any Distribution Date.
RECORD DATE: With respect to the Adjustable Rate Certificates,
the
Business Day prior to the related Distribution Date and with
respect to the
Certificates other than the Adjustable Rate Certificates, the last
Business Day
of the month immediately preceding the month in which the related
Distribution
Date occurs.
REFERENCE BANKS: [ ], [ ] and [ ] and their successors in
interest;
provided, however, that if any of the foregoing banks are not
suitable to serve
as a Reference Bank, then any leading banks selected by the
Securities
Administrator which are engaged in transactions in Eurodollar
deposits in the
International Eurocurrency market (i) with an established place of
business in
London, (ii) not controlling, under the control of or under common
control with
the Depositor or any Affiliate thereof and (iii) which have been
designated as
such by the Securities Administrator.
REGULAR INTEREST CERTIFICATES: The Certificates, other than the
Class [
] Certificates.
REGULATION S PERMANENT GLOBAL CERTIFICATE: As defined in Section
5.1.
REGULATION S TEMPORARY GLOBAL CERTIFICATE: As defined in Section
5.1.
RELEASE DATE: The [ ] day after the later of (i) commencement of
the
offering of the Certificates and (ii) the Closing Date.
RELIEF ACT: The Servicemembers Relief Act of 2003, as amended,
or
similar state or local laws.
RELIEF ACT INTEREST SHORTFALL: With respect to any Distribution
Date
and a Loan, any reduction in the amount of interest collectible on
such Loan for
the most recently ended calendar month immediately preceding such
Distribution
Date as a result of the application of the Relief Act.
REMAINING PRE-FUNDED AMOUNT: With respect to any Group I Loans,
an
amount equal to the Original Pre-Funded Amount minus the amount
equal to [ ]% of
the aggregate outstanding Principal Balance of the Subsequent Loans
transferred
to such Loan Group during the Pre-Funding Period.
REMIC: A "real estate mortgage investment conduit" within the
meaning
of Section 860D of the Code.
REMIC OPINION: An Opinion of Counsel stating that, under the
REMIC
Provisions, any contemplated action will not cause any REMIC to
fail to qualify
as a REMIC or result in the imposition of a tax upon the Trust Fund
(including
but not limited to the tax on prohibited transactions as defined in
Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in
Section 860G(d) of the Code).
REMIC PROVISIONS: Provisions of the federal income tax law relating
to
real estate mortgage investment conduits which appear at Section
860A through
860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and
regulations and rulings promulgated thereunder, as the foregoing
may be in
effect from time to time.
REMIC REGULAR INTERESTS: Any of the REMIC I Regular Interests
or
Regular Interest Certificates.
REMIC I: The segregated pool of assets, with respect to which a
REMIC
election is to be made, consisting of: (i) the Loans (exclusive of
payments of
principal and interest due on or before the Cut-Off Date, if any,
received by
the Master Servicer which shall not constitute an asset of the
Trust Fund) as
from time to time are subject to this Agreement and all payments
under and
proceeds of such Loans (exclusive of any late payment charges
received on the
Loans), together with all documents included in the related
Mortgage File,
subject to Section 2.1; (ii) such funds or assets as from time to
time are
deposited in the Distribution Account and belonging to the Trust
Fund; (iii) any
REO Property in respect of a Loan; (iv) the primary hazard
insurance policies,
if any, the primary insurance policies, if any, and all other
insurance policies
with respect to the Loans; (v) the Depositor's interest in respect
of the
representations and warranties made by DBSP in the DBSP Mortgage
Loan Purchase
Agreement as assigned to the Trustee pursuant to Section 2.1
hereof; and (vi)
the Depositor's interest in respect of the representations and
warranties made
by AHMC in the AHMC Mortgage Loan Purchase Agreement as assigned to
the Trustee
pursuant to Section 2.1 hereof. Notwithstanding the foregoing,
however, REMIC I
specifically excludes the Class [ ] Reserve Fund, the Cap Contract,
the
Pre-Funding Account, the Capitalized Interest Account and any
payments made
thereunder.
REMIC I REGULAR INTERESTS: Any of the separate non-certificated
beneficial ownership interests in REMIC I (as defined in the
Preliminary
Statement) issued hereunder and designated as a Regular Interest in
REMIC I.
Each REMIC I Regular Interest (other than REMIC I Regular Interest
[ ], REMIC I
Regular Interest [ ], REMIC I Regular Interest [ ] and REMIC I
Regular Interest
[ ]) shall accrue interest at the related Uncertificated REMIC I
Pass-Through
Rate in effect from time to time, and shall be entitled to
distributions of
principal (other than REMIC I Regular Interest [ ] and REMIC I
Regular Interest
[ ]) 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: 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 CERTIFICATES: The Group I Senior Certificates, Group II
Senior
Certificates, Class [ ] Certificates and Subordinate
Certificates.
REMITTANCE REPORT: A report by the Securities Administrator
pursuant to
Section 4.6.
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, [ ]
month's
interest at the applicable Net Mortgage Rate on the Scheduled
Principal Balance
of such REO Property (or, in the case of the first such calendar
month, of the
related Loan, if appropriate) as of the close of business on the
Distribution
Date in such calendar month.
REO PROPERTY: A Mortgaged Property, title to which has been
acquired by
a Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of
foreclosure or otherwise.
RESIDUAL CERTIFICATEHOLDER: The registered Holder of a Class [
]
Certificate.
RESIDUAL CERTIFICATES: The Class [ ] Certificates. Components [ ]
and [
] of the Class [ ] Certificates are hereby designated as the sole
Class of
"residual interests" in each of REMIC I and REMIC II,
respectively.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any
officer
in the corporate trust department or similar group of the Trustee
with direct
responsibility for the administration of this Agreement and also,
with respect
to a particular corporate trust matter, any other officer to whom
such matter is
referred because of his or her knowledge of and familiarity with
the particular
subject. When used with respect to the Master Servicer or the
Securities
Administrator, the Chairman or Vice-Chairman of the Board of
Directors or
Trustees, the Chairman or Vice-Chairman of the Executive or
Standing Committee
of the Board of Directors or Trustees, the President, the Chairman
of the
Committee on Trust Matters, any Vice-President, any Assistant
Vice-President,
the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer,
the Cashier, any Assistant Cashier, any Trust Officer or Assistant
Trust
Officer, the Controller, any Assistant Controller or any other
officer
customarily performing functions similar to those performed by any
of the
above-designated officers and in each case having direct
responsibility for the
administration of this Agreement, and also, with respect to a
particular matter,
any other officer to whom such matter is referred because of such
officer's
knowledge of and familiarity with the particular subject. When used
with respect
to the Depositor or any other Person, the Chairman or Vice-Chairman
of the Board
of Directors, the Chairman or Vice-Chairman of any executive
committee of the
Board of Directors, the President, any Vice-President, the
Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, or any
other
officer of the Depositor customarily performing functions similar
to those
performed by any of the above-designated officers and also, with
respect to a
particular matter, any other 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, 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, [ ] and
thereafter,
its respective successors in interest who meet the qualifications
of this
Agreement. The Securities Administrator and the Master Servicer
shall at all
times be the same Person or Affiliates.
SENIOR CERTIFICATES: The Class [ ], Class [ ], Class [ ], Class [
],
Class [ ], Class [ ], Class [ ], Class [ ], Class [ ], Class [ ],
Class [ ],
Class [ ], Class [ ], Class [ ], Class [ ], Class [ ] and Class [
]
Certificates.
SENIOR INTEREST SHORTFALL AMOUNT: For any Distribution Date and
the
Senior Certificates of a Loan Group (other than the Class [ ]
Certificates and
Class [ ] Certificates) will be equal to that amount by which the
Interest
Distribution Amount payable to the related Senior Certificates
(other than the
Class [ ] Certificates and Class [ ] Certificates) on such
Distribution Date
exceeds the related Available Distribution Amount.
SENIOR LIQUIDATION
AMOUNT: For any Distribution Date and a Loan Group,
the aggregate with respect to each related Loan which became a
Liquidated Loan
during the related Prepayment Period, of the lesser of: (i) the
related Senior
Percentage of the Principal Balance of such Loan (exclusive of the
Group I
Discount Fraction thereof, if such Loan is a Group I Discount Loan
or the Group
II Discount Fraction thereof, if such Loan is a Group II Discount
Loan), and
(ii) the related Senior Prepayment Percentage of the Liquidation
Principal with
respect to such Loan (exclusive of the Group I Discount Fraction
thereof, if
such Loan is a Group I Discount Loan or the Group II Discount
Fraction thereof,
if such Loan is a Group II Discount Loan).
SENIOR PERCENTAGE: As of the Closing Date, [ ]%, with respect to
the
Group I Loans, and [ ]% with respect to the Group II Loans;
thereafter, for any
Distribution Date, the percentage equivalent of a fraction, the
numerator of
which is the aggregate Certificate Principal Balance of the related
Senior
Certificates (other than the Class [ ], Class [ ], Class [ ], Class
[ ] and
Class [ ] Certificates), immediately preceding such Distribution
Date, and the
denominator of which is the aggregate Scheduled Principal Balance
of the Loans
in such Loan Group, in each case as of the first day of the related
Due Period
(exclusive of the Group I Discount Fraction of any such Loan, if
such Loan is a
Group I Discount Loan or the Group II Discount Fraction of any such
Loan, if
such Loan is a Group II Discount Loan).
SENIOR PREPAYMENT PERCENTAGE: For any Loan Group and any
Distribution
Date, the percentage indicated in the following table:
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN
SENIOR PREPAYMENT PERCENTAGE
----------------------------------------------------
---------------------------------------------------------
<S>
<C>
[ ] [
] through
[ ] [
]
.......... [
]%
[ ] [
] through
[ ] [
]........... Senior
Percentage + [ ]% of the Subordinate
Percentage
[ ] [
] through
[ ] [
]........... Senior
Percentage + [ ]% of the Subordinate
Percentage
[ ] [
] through
[ ] [
]........... Senior
Percentage + [ ]% of the Subordinate
Percentage
[ ] [
] through
[ ] [
]........... Senior
Percentage + [ ]% of the Subordinate
Percentage
[ ] [
] and
thereafter..................... Senior Percentage
</TABLE>
Notwithstanding the foregoing, the Senior Prepayment Percentage
with respect to
each Loan Group, will be equal to [ ]% on any Distribution Date on
which (i) the
Aggregate Senior Percentage for that Distribution Date exceeds the
Aggregate
Senior Percentage as of the Closing Date or (ii) the aggregate
Scheduled
Principal Balance of the Loans (including Loans in bankruptcy,
foreclosure and
related REO Property) which are [ ] or more days delinquent
(averaged over the
preceding six-month period), as a percentage of the Aggregate
Subordinate
Amount, is equal to or greater than [ ]% as of such Distribution
Date, or
cumulative Realized Losses on the Loans allocated to the
Subordinate
Certificates are greater than the following amounts:
<TABLE>
<CAPTION>
PERCENTAGE OF THE AGGREGATE SUBORDINATE
DISTRIBUTION DATE OCCURRING IN
AMOUNT AS OF THE CUT-OFF DATE
----------------------------------------------------------
----------------------------------------
<S>
<C>
[ ] [
] through
[ ] [
].................
[ ]%
[ ] [
] through
[ ] [
].................
[ ]%
[ ] [
] through
[ ] [
].................
[ ]%
[ ] [
] through
[ ] [
].................
[ ]%
[ ] [
] and
thereafter...........................
[ ]%
</TABLE>
If on any Distribution Date the allocation to the Senior
Certificates of a Loan
Group (other than the Class [ ], Class [ ], Class [ ], Class [ ]
and Class [ ]
Certificates) of Principal Prepayments in the percentage required
would reduce
the sum of the aggregate Certificate Principal Balances of the
related Senior
Certificates (other than the Class [ ], Class [ ], Class [ ], Class
[ ] and
Class [ ] Certificates) below zero, the Senior Prepayment
Percentage for such
Distribution Date shall be limited to the percentage necessary to
reduce such
sum to [ ].
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution
Date and a Loan Group, the sum of the following for that
Distribution Date:
(1) the
related Senior Percentage of the related Principal
Distribution Amount (exclusive of the portion thereof
attributable to the Group I Discount Fractional Principal
Amount or the portion thereof attributable to the Group II
Discount Fractional Principal Amount, as applicable);
(2) the
related Senior Prepayment Percentage of the related
Principal Prepayment Amount (exclusive of the portion thereof
attributable to the Group I Discount Fractional Principal
Amount or the portion thereof attributable to the Group II
Discount Fractional Principal Amount, as applicable); and
(3) the
related Senior Liquidation Amount.
SERVICER: [ ], [ ], [ ], [ ] or [ ], as applicable, or any
successor
appointed under the applicable Servicing Agreement.
SERVICER CREDIT RISK MANAGEMENT AGREEMENT: As defined in Section
3.1.
SERVICER REMITTANCE DATE: With respect to each Distribution Date
shall
mean (i) with respect to [ ], [ ] and [ ], the [ ] day of the
calendar month in
which such Distribution Date occurs or, if such [ ] day is not a
Business Day,
the Business Day immediately preceding such [ ] day, (ii) with
respect to [ ],
the [ ] day of the calendar month in which such Distribution Date
occurs or, if
such [ ] day is not a Business Day, the Business Day immediately
preceding such
[ ] day and (iii) with respect to [ ], the [ ] day of the calendar
month in
which such Distribution Date occurs or, if such [ ] day is not a
Business Day,
the Business Day immediately preceding such [ ] day.
SERVICING ADVANCES: The customary reasonable and necessary
"out-of-pocket" costs and expenses incurred prior to or on or after
the Cut-Off
Date by the related Servicer in connection with a default,
delinquency or other
unanticipated event by the related Servicer in the performance of
its servicing
obligations, including, but not limited to, the cost of (i) the
preservation,
restoration and protection of a Mortgaged Property, (ii) any
enforcement or
judicial proceedings, including foreclosures, in respect of a
particular Loan
and (iii) the management (including reasonable fees in connection
therewith) and
liquidation of any REO Property. No Servicer shall be required to
make any
Servicing Advance in respect of a Loan or REO Property that, in the
good faith
business judgment of such Servicer would not be ultimately
recoverable from
related Insurance Proceeds or Liquidation Proceeds on such Loan or
REO Property
as provided herein.
SERVICING AGREEMENT: The [ ] Servicing Agreement, the [ ]
Servicing
Agreement, the [ ] Servicing Agreement, the [ ] Servicing
Agreement, the [ ]
Servicing Agreement and the [ ] Servicing Agreement, each as
modified by the
related Assignment Agreement.
SERVICING FEE: With respect to each Loan and for any Distribution
Date,
an amount equal to [ ] 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: As set forth in the related Servicing
Agreement.
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.
SHIFT PERCENTAGE: Shall be [ ]% for the first [ ]years following
the
Closing Date, [ ]% in the sixth year following the Closing Date, [
]% in the [ ]
year following the Closing Date, [ ]% in the [ ] year following the
Closing
Date, [ ]% in the ninth year following the Closing Date and [ ]%
for any year
thereafter.
SPECIAL HAZARD COVERAGE: As of the Cut-Off Date $5,083,621.26. On
each
Anniversary, the Special Hazard Coverage will be reduced to an
amount equal to
the lesser of:
(1) the greatest of:
(a) the
aggregate Principal Balance of the Loans located
in the zip code containing the largest aggregate
Principal Balance of the Loans;
(b) [ ]% of
the aggregate Principal Balance of the Loans;
and
(c) [ ] the
Principal Balance of the largest Loan,
calculated as of the Due Date in the immediately
preceding month (after giving effect to all scheduled
payments whether or not received); and
(2) the Special Hazard Coverage as of the Cut-Off Date as reduced
by
the Special Hazard Losses allocated to the Certificates since
the
Cut-Off Date.
SPECIAL HAZARD LOSS: The occurrence of any direct physical
loss or damage to a Mortgaged Property relating to a Liquidated
Loan, as
reported by the related Servicer, not covered by a standard hazard
maintenance
policy with extended coverage which is caused by or results from
any cause
except: (i) fire, lightning, windstorm, hail, explosion, riot, riot
attending a
strike, civil commotion, vandalism, aircraft, vehicles, smoke,
sprinkler
leakage, except to the extent of that portion of the loss which was
uninsured
because of the application of a co-insurance clause of any
insurance policy
covering these perils; (ii) normal wear and tear, gradual
deterioration,
inherent vice or inadequate maintenance of all or part thereof;
(iii) errors in
design, faulty workmanship or materials, unless the collapse of the
property or
a part thereof ensues and then only for the ensuing loss; (iv)
nuclear reaction
or nuclear radiation or radioactive contamination, all whether
controlled or
uncontrolled and whether such loss be direct or indirect, proximate
or remote or
be in whole or in part caused by, contributed to or aggravated by a
peril
covered by this definition of Special Hazard Loss; (v) hostile or
warlike action
in time of peace or war, including action in hindering, combating
or defending
against an actual, impending or expected attack (a) by any
government or
sovereign power (dejure or defacto), or by an authority maintaining
or using
military, naval or air forces, (b) by military, naval or air
forces, or (c) by
an agent of any such government, power, authority or forces; (vi)
any weapon of
war employing atomic fission or radioactive force whether in time
of peace or
war; (vii) insurrection, rebellion, revolution, civil war, usurped
power or
action taken by governmental authority in hindering, combating or
defending
against such occurrence; or (viii) seizure or destruction under
quarantine or
customs regulations, or confiscation by order of any government or
public
authority.
STARTUP DAY: With respect to each REMIC, the day designated as
such
pursuant to Section 10.1(b) hereof.
SUBORDINATE CERTIFICATES: The Class [ ] Certificates and Class [
]
Certificates.
SUBORDINATE LIQUIDATION AMOUNT: For a Distribution Date and a
Loan
Group, the excess, if any, of (i) the aggregate Liquidation
Principal for all
Loans in such Loan Group which became Liquidated Loans during the
related
Prepayment Period, over (ii) the related Senior Liquidation Amount
for such
Distribution Date and the Group I Discount Fraction of Liquidation
Principal
with respect to Group I Discount Loans or the Group II Discount
Fraction of
Liquidation Principal with respect to Group II Discount Loans, as
applicable,
received during the related Prepayment Period.
SUBORDINATE PERCENTAGE: For any Distribution Date and a Loan Group,
[
]% minus the related Senior Percentage for such date. As of the
Closing Date,
the Subordinate Percentage will be [ ]% with respect to the Group I
Loans, and [
]% with respect to the Group II Loans.
SUBORDINATE PREPAYMENT PERCENTAGE: For any Distribution Date, [
]%
minus the related Senior Prepayment Percentage. As of the Closing
Date, the
Subordinate Prepayment Percentage will be [ ]% for each Loan
Group.
SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date and a Loan Group, an amount equal to the sum of
the following
for that Distribution Date:
(1) the
related Subordinate Percentage of the related
Principal Distribution Amount (exclusive of the
portion thereof attributable to the Group I Discount
Fractional Principal Amount or the portion thereof
attributable to the Group II Discount Fractional
Principal Amount, as applicable);
(2) the
related Subordinate Principal Prepayment Amount
(exclusive of the portion thereof attributable to the
Group I Discount Fractional Principal Amount or the
portion thereof attributable to the Group II Discount
Fractional Principal Amount, as applicable); and
(3) the
related Subordinate Liquidation Amount.
provided, however, that the Subordinate Principal Distribution
Amount for the
Group I Loans shall be reduced by the amounts required to be
distributed to the
Class [ ] Certificates with respect to the Group I Discount
Fractional Principal
Shortfall on such Distribution Date and the amounts required to be
distributed
to the Senior Certificates of a Loan Group in connection with any
Collateral
Deficiency Amount; provided further that the Subordinate Principal
Distribution
Amount for the Group II Loans shall be reduced by the amounts
required to be
distributed to the Class [ ] Certificates with respect to the Group
II Discount
Fractional Principal Shortfall on such Distribution Date and the
amounts
required to be distributed to the Senior Certificates of a Loan
Group in
connection with any Collateral Deficiency Amount. Any reduction in
the
Subordinate Principal Distribution Amount pursuant to the foregoing
proviso
shall offset the amount calculated pursuant to clause (1), clause
(3) and clause
(2) above, in that order.
SUBORDINATE PRINCIPAL PREPAYMENT AMOUNT: For any Distribution Date
and
a Loan Group, the related Subordinate Prepayment Percentage of the
Principal
Prepayment Amount for such Distribution Date (exclusive of the
portion thereof
attributable to the Group I Discount Fractional Principal Amount
for that
Distribution Date or the portion thereof attributable to the Group
II Discount
Fractional Principal Amount for that Distribution Date, as
applicable).
SUBORDINATION LEVEL: On any specified date with respect to any
Class of
Subordinate Certificates, the percentage obtained by dividing: (1)
the sum of
the aggregate Certificate Principal Balances of all Classes of
Subordinate
Certificates which are subordinate in right of payment to such
Class as of such
date, before giving effect to distributions of principal or
allocations of
related Realized Losses on such date; by (2) the sum of the
aggregate
Certificate Principal Balances of all Classes of Certificates
(other than the
Class [ ], Class [ ] and Class [ ] Certificates) as of such date,
before giving
effect to distributions of principal or allocations of related
Realized Losses
on such date.
SUBSEQUENT CUT-OFF DATE: With respect to those Subsequent Loans
sold to
the Trust pursuant to a Subsequent Transfer Instrument, the later
of (i) first
day of the month in which the related Subsequent Transfer Date
occurs or (ii)
the date of origination of such Loan.
SUBSEQUENT LOAN: A Loan sold by the Depositor to the Trust Fund
during
the Pre-Funding Period pursuant to Section 2.6, such Loan being
identified on
the Loan Schedule attached to a Subsequent Transfer Instrument and
assigned to
the Group I Loans.
SUBSEQUENT LOAN PURCHASE AGREEMENT: The agreement between the
Depositor
and DBSP, regarding the transfer of the Subsequent Loans by [ ] to
the
Depositor.
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.
SUBSEQUENT TRANSFER DATE: With respect to each Subsequent
Transfer
Instrument, the date on which the related Subsequent Loans are
transferred to
the Trust Fund.
SUBSEQUENT TRANSFER INSTRUMENT: Each Subsequent Transfer
Instrument,
dated as of a Subsequent Transfer Date, executed by the Trustee and
the
Depositor substantially in the form attached hereto as Exhibit E,
by which
Subsequent Loans are transferred to the Trust Fund.
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 related Mortgage Loan
Purchase Agreement
applicable to the Deleted Loan. In the event that one or more
mortgage loans are
substituted for one or more Deleted Loans, the amounts described in
clause (i)
hereof shall be determined on the basis of aggregate principal
balances, the
Mortgage Interest Rates described in clause (ii) hereof shall be
determined on
the basis of weighted average Mortgage Interest Rates, the terms
described in
clause (iii) hereof shall be determined on the basis of weighted
average
remaining term to maturity, the Loan-to-Value Ratios described in
clause (v)
hereof shall be satisfied as to each such Substitute Loan, the risk
gradings
described in clause (vi) hereof shall be satisfied as to each such
Substitute
Loan and, except to the extent otherwise provided in this sentence,
the
representations and warranties described in clauses (vii) and
(viii) hereof must
be satisfied as to each Substitute Loan or in the aggregate, as the
case may be.
TAX MATTERS PERSON: The Holder of the Class [ ] Certificates
issued
hereunder or any Permitted Transferee of such Class [ ]
Certificateholder shall
be the initial "tax matters person" for REMIC I and REMIC II within
the meaning
of Section 6231(a)(7) of the Code.
TERMINATION PRICE: As defined in Section 9.1.
TRANSFEREE: Any Person who is acquiring by an Ownership Interest in
a
Junior Subordinate Certificate or Residual Certificate.
TRUST FUND: Collectively, all of the assets of REMIC I, REMIC II,
the
Cap Contract, the Class [ ] Reserve Fund, the Pre-Funding Account,
the
Capitalized Interest Account and any amounts on deposit therein and
any proceeds
thereof.
TRUST REMIC: Any of REMIC I or REMIC II.
TRUSTEE: [ ], a national banking association, or its successor
in
interest, or any successor trustee appointed as herein
provided.
UNCERTIFICATED ACCRUED INTEREST: With respect to each REMIC
Regular
Interest on each Distribution Date, an amount equal to one month's
interest at
the related Uncertificated Pass-Through Rate on the Uncertificated
Principal
Balance of such REMIC Regular Interest. In each case,
Uncertificated Accrued
Interest will be reduced by any Prepayment Interest Shortfalls and
shortfalls
resulting from application of the Relief Act.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to each REMIC
Regular
Interest, the principal amount of such REMIC Regular Interest
outstanding as of
any date of determination. As of the Closing Date, the
Uncertificated Principal
Balance of each REMIC Regular Interest shall equal the amount set
forth in the
Preliminary Statement hereto as its initial Uncertificated
Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of
each REMIC
Regular Interest shall be reduced by all distributions of principal
made on such
REMIC Regular Interest on such Distribution Date pursuant to
Sections 4.1 and
4.3, as applicable and, if and to the extent necessary and
appropriate, shall be
further reduced on such Distribution Date by Realized Losses, as
provided in
Sections 4.2. The Uncertificated Principal Balance of each REMIC
Regular
Interest shall never be less than zero.
UNCERTIFICATED REMIC I PASS-THROUGH RATE: With respect to REMIC
I
Regular Interests [ ], [ ], [ ], [ ], [ ], [ ], [ ], [ ], [ ], [ ],
[ ], [ ], [
], [ ], [ ] and [ ] [ ]% per annum. With respect to REMIC I Regular
Interest [
], the percentage equivalent of a fraction the numerator of which
is equal to
the product of (i) the excess of (a) the weighted average of the
Net Mortgage
Rates of the Group I Non-Discount Loans over (b) [ ]% and (ii) the
aggregate
Principal Balance of the Group I Non-Discount Loans and the
denominator of which
is equal to the aggregate Principal Balance of the Group I Loans.
With respect
to REMIC I Regular Interest [ ], the percentage equivalent of a
fraction the
numerator of which is equal to the product of (i) the excess of (a)
the weighted
average of the Net Mortgage Rates of the Group II Non-Discount
Loans over (b) [
]% and (ii) the aggregate Principal Balance of the Group II
Non-Discount Loans
and the denominator of which is equal to the aggregate Principal
Balance of the
Group II Loans. With respect to REMIC I Regular Interests [ ], [ ],
[ ] and [ ],
[ ]%.
UNDERWRITER: [ ]
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.
VERIFICATION AGENT: As defined in Section 3.28.
VERIFICATION REPORT: As defined in Section 3.28.
[ ] CUSTODIAL AGREEMENT: The Custodial Agreement dated as of [ ],
20[
], among the Trustee, [ ] as Custodian and as a Servicer, [ ] and [
] as such
agreement may be amended or supplemented from time to time.
[ ] SERVICING AGREEMENT: Shall mean the Seller's Warranties and
Servicing Agreement, dated as of [ ], 20[ ], between [ ] and [ ],
as amended (as
modified pursuant to the related Assignment Agreement).
Section 1.2 ALLOCATION OF CERTAIN INTEREST SHORTFALL.
For purposes of calculating the amount of Uncertificated
Accrued
Interest for the REMIC I Regular Interests for any Distribution
Date, the
aggregate amount of any Prepayment Interest Shortfalls incurred in
respect of
the Loans for any Distribution Date shall be allocated to the REMIC
I Regular
Interests, pro rata, to the extent of one 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.
<PAGE>
ARTICLE II
CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF TRUST FUND. The Depositor, concurrently
with
the execution and delivery hereof, does hereby transfer, assign,
set over and
otherwise convey to the Trustee, on behalf of the Trust, without
recourse, for
the benefit of the Certificateholders, all the right, title and
interest of the
Depositor, including any security interest therein for the benefit
of the
Depositor, in and to the Loans identified on the Loan Schedule, the
rights of
the Depositor under the Mortgage Loan Purchase Agreements, the
Servicing
Agreements, the Assignment Agreements, the Subsequent Mortgage Loan
Purchase
Agreement and such assets as shall from time to time be credited or
a required
by the terms of this Agreement to be credited to the Pre-Funding
Account and
Capitalized Interest Account, (including, without limitation the
right to
enforce the obligations of the other parties thereto thereunder),
and all other
assets included or to be included in REMIC I. Such assignment
includes all
interest and principal received by the Depositor or the applicable
Servicer on
or with respect to the Loans (other than payments of principal and
interest due
on such Loans on or before the Cut-Off Date). The Depositor
herewith delivers to
the Trustee executed copies of the Mortgage Loan Purchase
Agreements and the
Assignment Agreements (with copies of the related Servicing
Agreements attached
thereto).
In connection with such transfer and assignment, the Depositor
does
hereby deliver to, and deposit with the applicable Custodian
pursuant to the
applicable Custodial Agreement the documents with respect to each
Loan as
described under Section 2 of the applicable Custodial Agreement
(the "Loan
Documents"). In connection with such delivery and as further
described in the
applicable Custodial Agreement, the applicable Custodian will be
required to
review such Loan Documents and deliver to the Trustee, the
Depositor, the Master
Servicer and [ ] or [ ], as applicable, certifications (in the
forms attached to
the applicable Custodial Agreement) with respect to such review
with exceptions
noted thereon. In addition, the Depositor under the Custodial
Agreements will
have to cure certain defects with respect to the Loan Documents for
the related
Loans after the delivery thereof by the Depositor to the Custodians
as more
particularly set forth therein.
Notwithstanding anything to the contrary contained herein, the
parties
hereto acknowledge that the functions of the Trustee with respect
to the
custody, acceptance, inspection and release of the Mortgage Files,
including,
but not limited to certain insurance policies and documents
contemplated by
Section 3.12, and preparation and delivery of the certifications
shall be
performed by the Custodians pursuant to the terms and conditions of
the
Custodial Agreements.
The Depositor shall deliver or cause the related originator to
deliver
to the related Servicer copies of all trailing documents required
to be included
in the related Mortgage File at the same time the originals or
certified copies
thereof are delivered to the Trustee or applicable Custodian, such
documents
including the mortgagee policy of title insurance and any Loan
Documents upon
return from the recording office. The Servicers shall not be
responsible for any
custodian fees or other costs incurred in obtaining such documents
and the
Depositor shall cause the Servicers to be reimbursed for any such
costs the
Servicers may incur in connection with performing its obligations
under this
Agreement.
The Loans permitted by the terms of this Agreement to be included
in
the Trust are limited to (i) Loans (which the Depositor acquired
pursuant to the
Mortgage Loan Purchase Agreements, which contains, among other
representations
and warranties, a representation and warranty of [ ] or [ ], as
applicable, that
no Loan sold by it to the Depositor is a "High-Cost Home Loan" as
defined in the
New Jersey Home Ownership Act effective November 27, 2003, as
defined in the New
Mexico Home Loan Protection Act effective January 1, 2004, as
defined in the
Massachusetts Predatory Home Loan Practices Act, effective November
7, 2004
(Mass. Ann. Laws Ch. 183C) or as defined in the Indiana Home Loan
Practices Act,
effective January 1, 2005 (Ind. Code Ann. Sections 24-9-1 through
24-9-9)) and
(ii) Substitute Loans (which, by definition as set forth herein and
referred to
in the Mortgage Loan Purchase Agreements, are required to conform
to, among
other representations and warranties, the representation and
warranty of the [ ]
or [ ], as applicable, that no Substitute Loan sold by it to the
Depositor is a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership
Act effective
November 27, 2003, as defined in the New Mexico Home Loan
Protection Act
effective January 1, 2004, as defined in the Massachusetts
Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. Ann. Laws Ch.
183C) or as
defined in the Indiana Home Loan Practices Act, effective January
1, 2005 (Ind.
Code Ann. Sections 24-9-1 through 24-9-9)). The Depositor and the
Trustee on
behalf of the Trust understand and agree that it is not intended
that any
mortgage loan be included in the Trust that is a "High-Cost Home
Loan" as
defined in the New Jersey Home Ownership Act effective November 27,
2003, as
defined in the New Mexico Home Loan Protection Act effective
January 1, 2004, as
defined in the Massachusetts Predatory Home Loan Practices Act,
effective
November 7, 2004 (Mass. Ann. Laws Ch. 183C) or as defined in the
Indiana Home
Loan Practices Act, effective January 1, 2005 (Ind. Code Ann.
Sections 24-9-1
through 24-9-9).
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
Agreements, of the Loan Documents and all other assets included in
the
definition of "REMIC I" under clauses (i), (ii), (to the extent of
amounts
deposited into the Distribution Account), (iv) and (v) and declares
that it
holds (or the applicable Custodian on its behalf holds) and will
hold such
documents and the other documents delivered to it constituting a
Loan Document,
and that it holds (or the applicable Custodian on its behalf holds)
or will hold
all such assets and such other assets included in the definition of
"REMIC I" in
trust for the exclusive use and benefit of all present and
future
Certificateholders.
Section 2.3 REPURCHASE OR SUBSTITUTION OF LOANS.
(a) Upon discovery or receipt of notice of any materially
defective
document in, or that a document is missing from, a Mortgage File or
of a breach
by [ ] or [ ], as applicable, of any representation, warranty or
covenant under
the related Mortgage Loan Purchase Agreement in respect of any Loan
that
materially and adversely affects the value of such Loan or the
interest therein
of the Certificateholders, the Trustee or the applicable Custodian
shall
promptly notify [ ] or [ ], as applicable, of such defect, missing
document or
breach and request that [ ] or [ ], as applicable, deliver such
missing
document, cure such defect or breach within sixty (60) days from
the date [ ] or
[ ], as applicable, was notified of such missing document, defect
or breach, and
if [ ] or [ ], as applicable, does not deliver such missing
document or cure
such defect or breach in all material respects during such period,
the Trustee
shall enforce the obligations of [ ] or [ ], as applicable, under
the related
Mortgage Loan Purchase Agreement to repurchase such Loan from REMIC
I at the
Purchase Price within [ ] days after the date on which [ ] or [ ],
as
applicable, was notified of such missing document, defect or
breach, if and to
the extent that [ ] or [ ], as applicable, is obligated to do so
under the
related Mortgage Loan Purchase Agreement. The Purchase Price for
the repurchased
Loan shall be deposited in the Distribution Account and the
Trustee, upon
receipt of written certification from the Securities Administrator
of such
deposit and receipt by the applicable Custodian of a properly
completed request
for release for such Loan in the form of EXHIBIT 3 to the
applicable Custodial
Agreement, shall release or cause the applicable Custodian to
release to [ ] or
[ ], as applicable, the related Mortgage File and the Trustee shall
execute and
deliver such instruments of transfer or assignment, in each case
without
recourse, representation or warranty, as [ ] or [ ], as applicable,
shall
furnish to it and as shall be necessary to vest in [ ] or [ ], as
applicable,
any Loan released pursuant hereto, and the Trustee shall not have
any further
responsibility with regard to such Mortgage File. In lieu of
repurchasing any
such Loan as provided above, if so provided in the related Mortgage
Loan
Purchase Agreement, [ ] or [ ], as applicable, may cause such Loan
to be removed
from REMIC I (in which case it shall become a Deleted Loan) and
substitute one
or more Substitute Loans in the manner and subject to the
limitations set forth
in Section 2.3(b). It is understood and agreed that the obligation
of [ ] and [
] to cure or to repurchase (or to substitute for) any Loan sold by
it to the
Depositor as to which a document is missing, a material defect in a
constituent
document exists or as to which such a breach has occurred and is
continuing
shall constitute the sole remedy respecting such omission, defect
or breach
available to the Trustee and the Certificateholders.
Notwithstanding the
foregoing, if the representation made by [ ] or [ ], as applicable,
in Section
6(xxiv) of the related Mortgage Loan Purchase Agreement is
breached, the Trustee
shall enforce the obligation of [ ] or [ ], as applicable, to
repurchase such
Loan at the Purchase Price, or to provide a Substitute Loan (plus
any costs and
damages incurred by the Trust Fund in connection with any violation
by any such
Loan of any predatory or abusive lending law) within ninety (90)
days after the
date on which [ ] or [ ], as applicable, was notified of such
breach.
In addition, promptly upon the earlier of discovery by the
Master
Servicer or receipt of notice from a Servicer or [ ] or [ ], as
applicable, to a
Responsible Officer of the Master Servicer of the breach of the
representation
of [ ] or [ ], as applicable, set forth in Section 5(x) of the
related Mortgage
Loan Purchase Agreement which materially and adversely affects the
interests of
the Holders of the Certificates in any Prepayment Charge, the
Master Servicer
shall promptly notify [ ] or [ ], as applicable, and the Trustee of
such breach.
The Trustee shall enforce the obligations of [ ] or [ ], as
applicable, under
the related Mortgage Loan Purchase Agreement to remedy such breach
to the extent
and in the manner set forth in the related Mortgage Loan Purchase
Agreement.
(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 REMIC I.
As to any Deleted Loan for which [ ] or [ ], as applicable,
substitutes
a Substitute Loan or Loans, such substitution shall be effected by
[ ] or [ ],
as applicable, delivering to the Trustee or the applicable
Custodian on behalf
of the Trustee, for such Substitute Loan or Loans, the Mortgage
Note, the
Mortgage, the Assignment to the Trustee, and such other documents
and
agreements, with all necessary endorsements thereon, as are
required by Section
2 of the applicable Custodial Agreement, as applicable, together
with an
Officers' Certificate providing that each such applicable
Substitute Loan
satisfies the definition thereof and specifying the Substitution
Shortfall
Amount (as described below), if any, in connection with such
substitution. The
applicable Custodian on behalf of the Trustee shall acknowledge
receipt of such
Substitute Loan or Loans and, within [ ] Business Days thereafter,
review such
documents and deliver to the Depositor, the Trustee and the Master
Servicer,
with respect to such Substitute Loan or Loans, an initial
certification pursuant
to the applicable Custodial Agreement, with any applicable
exceptions noted
thereon. Within one year of the date of substitution, the
applicable Custodian
on behalf of the Trustee shall deliver to the Depositor, the
Trustee and the
Master Servicer a final certification pursuant to the applicable
Custodial
Agreement with respect to such Substitute Loan or Loans, with any
applicable
exceptions noted thereon. Monthly Payments due with respect to
Substitute Loans
in the month of substitution are not part of REMIC I and shall be
retained by [
] or [ ], as applicable. For the month of substitution,
distributions to
Certificateholders shall reflect the Monthly Payment due on such
Deleted Loan on
or before the Due Date in the month of substitution, and [ ] or [
], as
applicable, shall thereafter be entitled to retain all amounts
subsequently
received in respect of such Deleted Loan. The Depositor shall give
or cause to
be given written notice to the Certificateholders that such
substitution has
taken place, shall amend the Loan Schedule to reflect the removal
of such
Deleted Loan from the terms of this Agreement and the substitution
of the
Substitute Loan or Loans and shall deliver a copy of such amended
Loan Schedule
to the Trustee and the Master Servicer. Upon such substitution,
such Substitute
Loan or Loans shall constitute part of the Trust Fund and shall be
subject in
all respects to the terms of this Agreement and the related
Mortgage Loan
Purchase Agreement including all applicable representations and
warranties
thereof included herein or in the related Mortgage Loan Purchase
Agreement.
For any month in which [ ] or [ ], as applicable, 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, [ ] or [ ], as
applicable,
shall deliver or cause to be delivered to the Securities
Administrator for
deposit in the Distribution Account an amount equal to the
Substitution
Shortfall Amount, if any, and the Trustee or the applicable
Custodian on behalf
of the Trustee, upon receipt of the related Substitute Loan or
Loans and
certification by the Securities Administrator of such deposit and
receipt by the
applicable Custodian of a properly completed request for release
for such Loan
in the form of EXHIBIT 3 to the applicable Custodial Agreement,
shall release to
[ ] or [ ], as applicable, the related Mortgage File or Files and
the Trustee
shall execute and deliver such instruments of transfer or
assignment, in each
case without recourse, representation or warranty, as [ ] or [ ],
as applicable,
shall deliver to it and as shall be necessary to vest therein any
Deleted Loan
released pursuant hereto.
In addition, [ ] or [ ] , as applicable, shall obtain at its
own
expense and deliver to the Trustee, the Master Servicer, the
Securities
Administrator and the Depositor an Opinion of Counsel to the effect
that such
substitution will not cause (a) any federal tax to be imposed on
any REMIC,
including without limitation, any federal tax imposed on
"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 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 [ ] Business Days give written notice thereof to the other
parties. In
connection therewith, [ ] or [ ] , as applicable, shall repurchase
or substitute
one or more Substitute Loans for the affected Loan within [ ] 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) [ ] or [
], as
applicable, 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 [ ] or
[ ], as applicable, under the related 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 [ ], [ ] 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 [ ] days of the earlier of discovery by the Master
Servicer
or receipt of notice by the Master Servicer of the breach of any
representation,
warranty or covenant of the Master Servicer set forth in Section
2.5 which
materially and adversely affects the interests of the related
Certificateholders
in any Loan or Prepayment Charge, the Master Servicer shall cure
such breach in
all material respects.
Section 2.4 AUTHENTICATION AND DELIVERY OF CERTIFICATES;
DESIGNATION OF
CERTIFICATES AS REMIC REGULAR INTERESTS 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 and REMIC II 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 II
shall consist of the Class [ ], Class [ ], Class [ ], Class [ ],
Class [ ],
Class [ ], Class [ ], Class [ ], Class [ ], Class [ ], Class [ ],
Class [ ],
Class [ ], Class [ ], Class [ ], Class [ ], Class [ ], Class [ ],
Class [ ],
Class [ ], Class [ ], Class [ ], Class [ ]and Class [
]Certificates. The
"residual interest" (within the meaning of Section [ ] of the Code)
in 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 consist of 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 and the
Depositor
that as of the Closing Date or as of such date specifically
provided herein:
(a) 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;
(b) 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;
(c) The execution and delivery of this Agreement by the Master
Servicer, the consummation by the Master Servicer of any other of
the
transactions herein contemplated, and the fulfillment of or
compliance with the
terms hereof are in the ordinary course of business of the Master
Servicer and
will not (i) result in a breach of any term or provision of charter
and by-laws
of the Master Servicer or (ii) conflict with, result in a breach,
violation or
acceleration of, or result in a default under, the terms of any
other material
agreement or instrument to which the Master Servicer is a party or
by which it
may be bound, or any statute, order or regulation applicable to the
Master
Servicer of any court, regulatory body, administrative agency or
governmental
body having jurisdiction over the Master Servicer; and the Master
Servicer is
not a party to, bound by, or in breach or violation of any
indenture or other
agreement or instrument, or subject to or in violation of any
statute, order or
regulation of any court, regulatory body, administrative agency or
governmental
body having jurisdiction over it, which materially and adversely
affects or, to
the Master Servicer's knowledge, would in the future materially and
adversely
affect, (A) the ability of the Master Servicer to perform its
obligations under
this Agreement or (B) the business, operations, financial
condition, properties
or assets of the Master Servicer taken as a whole;
(d) 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;
(e) 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;
(f) There are no actions or proceedings against, or
investigations
known to it of, the Master Servicer before any court,
administrative or other
tribunal (i) that might prohibit its entering into this Agreement,
(ii) seeking
to prevent the consummation of the transactions contemplated by
this Agreement
or (iii) that might prohibit or materially and adversely affect the
performance
by the Master Servicer of its obligations under, or validity or
enforceability
of, this Agreement; and
(g) 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 and the Certificateholders.
Section 2.6 CONVEYANCE OF SUBSEQUENT LOANS.
(a) Subject to the conditions set forth in paragraph (b) below,
in
consideration of the Securities Administrator's delivery, on behalf
of the
Trustee, on the Subsequent Transfer Dates to or upon the order of
the Depositor
of all or a portion of the balance of funds in the Pre-Funding
Account, the
Depositor shall on any Subsequent Transfer Date sell, transfer,
assign, set over
and convey without recourse to the Trust Fund but subject to the
other terms and
provisions of this Agreement all of the right, title and interest
of the
Depositor in and to (i) the Subsequent Loans identified on the Loan
Schedule
attached to the related Subsequent Transfer Instrument delivered by
the
Depositor on such Subsequent Transfer Date, (ii) all interest
accruing thereon
on and after the Subsequent Cut-Off Date and all collections in
respect of
interest and principal due after the Subsequent Cut-Off Date and
(iii) all items
with respect to such Subsequent Loans to be delivered pursuant to
Section 2.1
and the other items in the related Mortgage Files; provided,
however, that the
Depositor reserves and retains all right, title and interest in and
to principal
received and interest accruing on the Subsequent Loans prior to the
related
Subsequent Cut-Off Date. The transfer to the Trustee for deposit in
the Trust
Fund by the Depositor of the Subsequent Loans identified on the
Loan Schedule
shall be absolute and is intended by the Depositor, the Trustee and
the
Certificateholders to constitute and to be treated as a sale of the
Subsequent
Loans by the Depositor to the Trust Fund. The related Mortgage File
for each
Subsequent Loan shall be delivered to the Trustee (or the
applicable Custodian
on its behalf) at least three (3) Business Days prior to the
related Subsequent
Transfer Date.
The purchase price paid by the Trustee on behalf of the Trust
Fund from amounts released from the Pre-Funding Account shall be [
] of the
aggregate Principal Balance of the related Subsequent Loans so
transferred (as
identified on the Loan Schedule provided by the Depositor). This
Agreement shall
constitute a fixed-price purchase contract in accordance with
Section
860G(a)(3)(A)(ii) of the Code.
(b) The Depositor shall transfer to the Trustee for deposit in
the
Trust Fund the Subsequent Loans and the other property and rights
related
thereto as described in paragraph (a) above, and the Securities
Administrator
shall release funds from the Pre-Funding Account only upon the
satisfaction of
each of the following conditions on or prior to the related
Subsequent Transfer
Date:
(i) the Depositor shall have provided the Trustee, the
Securities Administrator and the Rating Agencies with a timely
addition
notice substantially in the form set forth on Exhibit D hereto
(an
"Addition Notice") and shall have provided any information
reasonably
requested by the Trustee with respect to the Subsequent Loans;
(ii) the Depositor shall have delivered to the Trustee and the
Securities Administrator a duly executed Subsequent Transfer
Instrument, substantially in the form of Exhibit E, which shall
include
a Loan Schedule listing the Subsequent Loans, and [ ] shall
have
delivered a computer file acceptable to the Trustee and the
Securities
Administrator containing such Loan Schedule to the Trustee and
the
Securities Administrator at least [ ] Business Days prior to
the
related Subsequent Transfer Date;
(iii) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Instrument, the Depositor shall
not
be insolvent nor shall it have been rendered insolvent by such
transfer
nor shall it be aware of any pending insolvency;
(iv) such sale and transfer shall not result in a material
adverse tax consequence to the Trust Fund or the
Certificateholders;
(v) the Pre-Funding Period shall not have terminated;
(vi) the Depositor shall not have selected the Subsequent
Loans in a manner that it believed to be adverse to the interests
of
the Certificateholders;
(vii) the Depositor shall have delivered to the Trustee (with
a copy to the Securities Administrator) a Subsequent Transfer
Instrument confirming the satisfaction of the conditions
precedent
specified in this Section 2.6 and, pursuant to the Subsequent
Transfer
Instrument, assigned to the Trustee without recourse for the
benefit of
the Certificateholders all the right, title and interest of the
Depositor, in, to and under the Subsequent Mortgage Loan
Purchase
Agreement, to the extent of the Subsequent Loans;
(viii) the Depositor shall have delivered to the Trustee an
Opinion of Counsel addressed to the Trustee and the Rating
Agencies
with respect to the transfer of the Subsequent Loans substantially
in
the form of the Opinion of Counsel delivered to the Trustee on
the
Closing Date regarding the true sale of the Subsequent Loans;
and
(ix) [ ] or a successor to [ ], appointed in accordance with
the terms of this Agreement, is the servicer of the Subsequent
Loans.
(c) Each Subsequent Loan that has been identified and is expected
to be
sold to the trust on the related Subsequent Transfer Date will have
the
characteristics set forth below as of the Cut-Off Date. In
addition, the
obligation of the Trust Fund to purchase any Subsequent Loan that
has not been
identified on the Cut-Off Date, but is sold to the Trust during the
Pre-Funding
Period, is subject to the satisfaction of the conditions set forth
in the
immediately preceding paragraph and the accuracy of the
following
representations and warranties with respect to each such Subsequent
Loan
determined as of the applicable Subsequent Transfer Date: (i) such
Subsequent
Loan may not be [ ] or more days delinquent as of the last day of
the month
preceding the Subsequent Cut-Off Date; (ii) the servicer of each
Subsequent Loan
will be [ ] (or its successor); (iii) such Subsequent Loan will be
secured by a
first lien; (iv) the original term to stated maturity of such
Subsequent Loan
will be no less than [ ]; (v) the latest maturity date of any
Subsequent Loan
will be no later than [ ]; (vi) no Subsequent Loan will have a
first payment
date occurring after [ ]; (vii) such Subsequent Loan will have a
credit score of
not less than [ ]; (viii) such Subsequent Loan will not have a
loan-to-value
ratio greater than [ ]%; and (ix) such Subsequent Loan will not
have a principal
balance greater than $[ ].
(d) As of each Subsequent Cut-Off Date, the aggregate of the
Subsequent
Loans identified and expected to be sold to the trust on the
related Subsequent
Transfer Date, including any Subsequent Loans that have not been
identified on
the Cut-Off Date and are sold to the trust during the Pre-Funding
Period, will
satisfy the following criteria: (i) have a weighted average credit
score greater
than approximately [ ]; (ii) have no less than approximately [ ]%
of the
Mortgaged Properties be owner occupied; (iii) have no less than
approximately [
]% of the Mortgaged Properties be single family detached or planned
unit
developments; (iv) have no more than approximately [ ]% of the
Subsequent Loan
be cash out refinance; (v) have a weighted average remaining term
to stated
maturity of less than approximately [ ]; (vi) have a weighted
average
loan-to-value ratio of not more than approximately [ ]%; (vii) no
more than
approximately [ ]% of the Subsequent Loan by aggregate principal
balance will be
concentrated in one state; and (viii) be acceptable to the Rating
Agencies.
(e) Notwithstanding the foregoing, any Subsequent Loan may be
rejected
by any Rating Agency if the inclusion of any such Subsequent Loan
would
adversely affect the ratings of any Class of Certificates. At least
[ ] Business
Day prior to the Subsequent Transfer Date, each Rating Agency shall
notify the
Trustee and the Securities Administrator as to which Subsequent
Loans, if any,
shall not be included in the transfer on the Subsequent Transfer
Date; provided,
however, that [ ] shall have delivered to each Rating Agency at
least [ ]
Business Days prior to such Subsequent Transfer Date a computer
file acceptable
to each Rating Agency describing the characteristics specified in
paragraphs (c)
and (d) above.
Section 2.7 ESTABLISHMENT OF THE TRUST.
The Depositor does hereby establish, pursuant to the further
provisions
of this Agreement and the laws of the State of New York, an express
trust to be
known, for convenience, as "Deutsche Alt-A Securities, Inc.
Mortgage Loan Trust,
Series [ ]" and does hereby appoint [ ], as Trustee in accordance
with the
provisions of this Agreement.
Section 2.8 PURPOSES AND POWERS OF THE TRUST.
The purpose of the common law trust, as created hereunder, is to
engage
in the following activities:
(a) acquire and hold the Mortgage loans and the other assets of
the
Trust Fund and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in exchange for
the
Mortgage loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable
or
convenient to accomplish the foregoing or are incidental thereto or
connected
therewith; and
(e) subject to compliance with this Agreement, to engage in such
other
activities as may be required in connection with conservation of
the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing
activities.
The Trustee shall not cause the trust to engage in any activity
other than in
connection with the foregoing or other than as required or
authorized by the
terms of this Agreement while any Certificate is outstanding, and
this Section
2.8 may not be amended, without the consent of the
Certificateholders evidencing
[ ]% or more of the aggregate voting rights of the
Certificates.
<PAGE>
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 4.6 and any other
information and
statements required to be provided by the Master Servicer
hereunder. The Master
Servicer shall reconcile the results of its Loan monitoring with
the actual
remittances of the Servicers to the Distribution Account pursuant
to the
applicable Servicing Agreements.
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, each in a form
acceptable to
it, necessary or appropriate to enable the Servicers and the Master
Servicer to
service or master service and administer the related Loans and REO
Property. The
Trustee shall have no responsibility for any action of the Master
Servicer or
any Servicer pursuant to any such limited power of attorney and
shall be
indemnified by the Master Servicer or such Servicer for any cost,
liability or
expense arising from the misuse thereof by the Maste
